A.
There shall be a Board of Zoning Appeals consisting
of five members appointed by the Board of Trustees.
|
A1.
|
Alternate members.
[Added 3-8-2004 by L.L. No. 1-2004] | |
|
1.
|
Pursuant to the Municipal Home Rule Law, Village
Law § 7-712(11) is hereby repealed and superseded in its
application to the Village of Atlantic Beach.
| |
|
2.
|
Subject to the approval of the Board of Trustees,
the Mayor may appoint not more than three alternate members of the
Board of Appeals, to serve in order of seniority in place of any members
of the Board of Appeals, or senior alternate members, who are unable
for any reason to attend any particular meeting of the Board. The
alternate members of the Board shall have all of the powers and duties
of regular members at such times as the alternate members are serving.
Such alternate members shall be appointed for terms of one official
year each.
| |
B.
The Board of Zoning Appeals shall, consistent with
the Village Law of the State of New York, determine its own rules
and procedure governing, among other things, the manner of bringing
on appeals and applications for hearing, the notice to be given of
its hearings in addition to statutory requirements, and the date and
time of hearings and decisions.
C.
The Board of Appeals shall investigate and report
upon all matters referred to it by the Board of Trustees.
D.
The Board of Appeals shall have all of the powers
granted by the Village Law and the following powers:
(1)
Variance powers. The Board of Appeals shall have power
to vary or modify the application of the regulations of this chapter
by granting use and/or area variances, subject to the mandatory criteria
therefor set forth at Article 7 of the Village Law, so that the spirit
of this chapter shall be observed, public safety and welfare secured
and substantial justice done.
(a)
Where any application before the Board of Zoning
Appeals requires the removal of existing trees from the site, the
Board of Zoning Appeals shall review the application for the purpose
of considering the preservation of such trees. The application shall
contain a specific plan, filed with the Department of Buildings, containing
a tree legend which will identify by number, species and caliper (four
inches or more) those trees to be preserved, removed and/or replaced.
In reviewing the application, the Board of Zoning Appeals shall consider
the following criteria:
[1]
The condition of the trees with respect to disease
and danger of falling, proximity to existing or proposed structures
and interference with utility services.
[2]
The necessity of the removal or alteration of
the tree in question.
[3]
Compliance with regulations of the New York
State Department of Environmental Conservation and similar regulations
if the proposed tree removal or alteration site is adjacent to freshwater
wetland boundaries.
[4]
The character established at the proposed site
of removal or alteration with respect to existing tree density.
[5]
The impact of any removal or alteration upon
existing screening of any road or highway bordering the property.
[6]
The recommendations of the Department of Buildings,
which shall review the site plan for tree preservation with a landscape
architect.
(2)
Special exceptions. Whenever a use, or the location
thereof, is permitted only if the Board of Zoning Appeals shall approve
thereof, the Board of Appeals may, in a specific case and after notice
and public hearing, authorize such permissive use and its location
within the district in which this chapter specifies the permissive
use may be located, subject, however to the following:
(a)
Before such approval shall be given, the Board
of Zoning Appeals shall determine that:
[1]
The use will not prevent the orderly and reasonable
use of adjacent properties or of properties in adjacent use districts;
[2]
The use will not prevent the orderly and reasonable
use of permitted or legally established uses in the district wherein
the proposed use is to be located or of permitted or legally established
uses in adjacent use districts;
[3]
The safety, the health, the welfare, the comfort,
the convenience or the order of the Village will not be adversely
affected by the proposed use and its location; and
[4]
The use will be in harmony with and promote
the general purposes and intent of this chapter.
(b)
In making such determination, the Board of Zoning
Appeals shall also give consideration, among other things, to:
[1]
The character of the existing and probable development
of uses in the district, and the peculiar suitability of such district
for the location of any of such permissive uses.
[2]
The conservation of property values and the
encouragement of the most appropriate uses of land.
[3]
The effect that the proposed use may have in
terms of the creation of undue increase of vehicular traffic congestion
on public streets, highways or waterways, or the monopolization of
available on-street or off-street parking spaces.
[4]
The availability of adequate and proper public
or private facilities for the treatment, removal or discharge of sewage,
refuse or effluent (whether liquid, solid, gaseous or otherwise) that
may be caused or created by or as a result of the use.
[5]
Whether the use, or materials incidental thereto
or produced, may give off obnoxious gases, odors, smoke or soot.
[6]
Whether the use will cause disturbing emission
of electrical discharges, dust, light, vibration or noise.
[7]
Whether the operations in pursuance of the use
will cause undue interference with the orderly enjoyment by the public
of parking or of recreational facilities, if existing, or if proposed
by any competent governmental agency.
[8]
The necessity for bituminous-surfaced space
for purposes of off-street parking of vehicles incidental to the use,
and whether such space is reasonably adequate and appropriate and
can be furnished by the owner of the plot sought to be used within
or adjacent to the plot wherein the use shall be had.
[9]
Whether a hazard to life, limb or property because
fire, flood, hurricane, wind storm, erosion or panic may be created
by reason of or as a result of the use or by the structures to be
used therefor or by the inaccessibility of the property or structures
thereon for the convenient entry and operation of fire and other emergency
apparatus or by the undue concentration or assemblage of persons,
or inability to evacuate persons from such plot.
[10]
Whether the use or the structures to be used
therefor will cause an overcrowding of land or undue concentration
of population.
[11]
Whether the plot area is sufficient, appropriate
and adequate for the use and the reasonable anticipated operation
and expansion thereof.
[12]
The physical characteristics and topography
of the land.
[13]
Whether the use to be operated is unreasonably
near to a religious use, school, recreational area or other place
of public assembly.
[14]
In applications seeking special exception uses,
the Board of Zoning Appeals shall give consideration to the preservation
of existing trees on the site. An application for a special exception
use shall contain a specific plan, filed with the Department of Buildings,
containing a tree legend which will identify by number, species and
caliper (four inches or more), those trees to be preserved, removed
and/or replaced. In reviewing the application, the Board of Zoning
Appeals shall consider the following criteria:
[a]
The condition of the tree with
respect to disease and danger of falling, proximity to existing or
proposed structures and interference with utility services.
[b]
The necessity of the removal or
alteration of the tree in question.
[c]
Compliance with regulations of
the New York State Department of Environmental Conservation and similar
regulations if the proposed tree removal or alteration site is adjacent
to freshwater wetland boundaries.
[d]
The character established at the
proposed site of removal or alteration with respect to existing tree
density.
[e]
The impact of any removal or alteration
upon existing screening of any road or highway bordering the property.
[f]
The recommendations of the Department
of Buildings, which shall review the site plan for tree preservation
with a landscape architect.
(c)
Each application for a special exception shall
be accompanied by a plot plan prepared by a registered architect,
a licensed professional engineer or licensed surveyor, showing the
location of each structure proposed to be erected on the plot which
is the subject of said application and showing the dimensions of each
such structure. The granting by the Board of Zoning Appeals of any
such application shall be limited to structures of the dimensions
shown on said plan and located as shown thereon unless the determination
of said Board making such grant shall expressly provide otherwise.
(3)
The Board of Zoning Appeals shall, in authorizing
such permissive uses, impose such conditions and safeguards as it
may deem appropriate, necessary or desirable to preserve and protect
the spirit and objectives of this chapter.
The Board of Zoning Appeals shall make rules
as to the manner of filing appeals and applications for variances
or for special exceptions.
After filing an application for a variance or
a special exception with the Board of Zoning Appeals, and payment
of the requisite fees, the Board of Zoning Appeals shall fix a time
and place for a public hearing thereon and shall give notice thereof
by publishing a notice thereof in accordance with the Village Law.
The Board may also promulgate rules requiring any further notice as
it may deem necessary to ensure that there is proper public input
at hearings.
[Added 4-14-2008 by L.L. No. 2-2008]
A.
Legislative intent.
(1)
In the enactment of Subsection B(2) of this section, it is the intent of the Board of Trustees, pursuant to its authority under § 10(1)(ii)(e)(3) of the Municipal Home Rule Law of the State of New York, to supersede § 7-712-a(12) of the Village Law of the State of New York in its application to the Village of Atlantic Beach as set forth hereinbelow. Section 7-712-a(12) was first enacted by the New York State Legislature as Chapter 208 of the Laws of 1993.
(2)
Prior to 2002, the zoning authority over properties
in the Village of Atlantic Beach was vested in the Town of Hempstead.
Thereafter, such authority was transferred by operation of state law
and a public referendum to the government of the Village of Atlantic
Beach. However, a technical anomaly has now come to the fore, in respect
to the transfer of the zoning authority, concerning the transfer of
the statutory rehearing authority of Village Law § 7-712-a(12).
Specifically, in 2007, the Board of Zoning Appeals of the Village
had proceeded to avail itself of the rehearing authority in response
to a certain 1997 decision of the Town of Hempstead Board of Zoning
Appeals granting a variance. Upon the rehearing, the 1997 decision
was vacated and reversed, and the variance was denied. Subsequently,
a court decision was issued in an Article 78 proceeding, voiding the
decision on rehearing, on the sole ground that the precise language
of Village Law § 7-712-a(12) does not encompass rehearings
of past town zoning decisions by a village zoning board. Now, by the
adoption of this section, it is the intent of the Board of Trustees
to solve that problem by superseding Village Law § 7-712-a(12)
with appropriately modified language. This new language, in sum and
substance, expressly and unambiguously states and confirms that the
rehearing authority of the Village’s Board of Zoning Appeals
does and shall extend to and encompass rehearings of past decisions
of the Board of Zoning Appeals of the Town of Hempstead and that,
in regard to past decisions of the Town Zoning Board, the Village’s
Zoning Board does and shall have authority to rehear Town Zoning Board
decisions which have not already been reheard by the Village Zoning
Board after the effective date of this section. This section will
ensure that the transfer of rehearing authority is not thwarted by
statutory language that does not technically account for the peculiar
eventuality of an intermunicipal transfer. All other substantive limitations
and qualifying elements of Village Law § 7-712-a(12) for
the exercising of the rehearing authority are unchanged.
(3)
Finally, it is asserted that the subject matter
of this section is not disqualified from application of the Village’s
supersession powers by reason of state preemption, either express
or implied. Village Law § 7-712-a(12) does not contain an
express prohibition against amendment or supersession in this instance.
Moreover, there is no basis to infer the existence of an implied preemption
in this instance. Indeed, this measure does not alter any mandatory
standards for grant or denial of zoning-based relief and has no potential
to create confusion or uncertainty in the administration of zoning
regulations outside of Atlantic Beach. In sum, there is no superior
interest in the State of New York in maintaining Village Law § 7-712-a(12)
as a uniform statewide standard. Accordingly, this section represents
a valid exercise by the Village of its supersession authority of § 10(1)(ii)(e)(3)
of the Municipal Home Rule Law of the State of New York.
B.
Rehearing authority.
(1)
Rehearing of past decisions of the Board of
Zoning Appeals of the Village of Atlantic Beach. A motion for the
Zoning Board of Appeals to hold a rehearing to review any order, decision
or determination of the Board not previously reheard may be made by
any member of the Board. A unanimous vote of all members of the Board
then present is required for such rehearing to occur. Such rehearing
is subject to the same notice provisions as an original hearing. Upon
such rehearing the Board may reverse, modify or annul its original
order, decision or determination upon the unanimous vote of all members
then present, provided the Board finds that the rights vested in persons
acting in good faith in reliance upon the reheard order, decision
or determination will not be prejudiced thereby.
(2)
Rehearing of past decisions of the Town of Hempstead Board of Zoning Appeals. A motion for the Village's Board of Zoning Appeals to hold a rehearing to review any order, decision or determination of the Board of Zoning Appeals of the Town of Hempstead affecting real property in the Village of Atlantic Beach not previously reheard after the effective date of this Subsection B(2) may be made by any member of the Village Board of Zoning Appeals. A unanimous vote of all members of the Village Board of Zoning Appeals then present is required for such rehearing to occur. Such rehearing is subject to the same notice provisions as an original hearing before the Village Board of Zoning Appeals. Upon such rehearing the Board may reverse, modify or annul the original order, decision or determination of the Board of Zoning Appeals of the Town of Hempstead upon the unanimous vote of all members then present, provided the Village Board of Zoning Appeals finds that the rights vested in persons acting in good faith in reliance upon the reheard order, decision or determination will not be prejudiced thereby.
Every variance or special exception granted
by the Board of Zoning Appeals in pursuance of the provisions of this
chapter shall become null, void and of no further force and effect,
unless:
A.
A permit shall have been issued pursuant thereto within
four months after the filing of the decision of the Board of Zoning
Appeals with the Village Clerk;
B.
The use so granted shall have been actually commenced
upon the premises, or the project for which a variance or special
exception or special use shall have been granted by the Board of Zoning
Appeals shall have been actually commenced, within four months after
issuance of the permit; provided, however, that excavation for a building
foundation shall not be deemed a commencement of the project within
the meaning of this section; and
C.
The project shall have been completed and a certificate
of occupancy shall have been issued within two years after the date
of the issuance of the permit therefor.
The Board of Zoning Appeals may, for good cause
shown, grant a longer period of time for the issuance of a permit
or commencement and completion of a project in pursuance thereof,
than that herein provided either upon the granting of the variance
or application for special uses or, thereafter, upon application made
to it for such extension; provided, however, that such application
shall be made before or within one year after the time for the issuance
of a permit has expired. In determining whether good cause existed
for such extension, the Board of Zoning Appeals shall consider, among
other things, the nature and extent of the construction and the complexity
thereof, the claimed difficulty tending to delay construction, availability
of utilities, strikes, scarcity of labor or materials, war, or acts
of God.
In addition to any other uses made available
by special exception elsewhere in this chapter, the Board of Zoning
Appeals may, after public notice and hearing, permit the following
uses in the districts designated:
B.
In the B Business District:[1]
(1)
Any use of the same general character as any of the
uses expressly permitted in the B Business District by this chapter.
(2)
Accessory uses on the same lot with and customarily
incidental to any use expressly permitted in the B Business District
by this chapter or permitted pursuant to this section.
(3)
Amusement-ride facilities on a temporary basis not
to exceed 10 days' duration.
[1]
Editor's Note: The B Business District was eliminated 1-13-2020 by L.L. No. 1-2020. See now Art. V, C Residence District (C).
C.
In a Marine Recreation District:
(1)
Amusement-ride facilities on a temporary basis not
to exceed 10 days' duration.
D.
In any district:
(1)
Parking fields, either public or private, for the
parking of passenger vehicles only, but not for display or sale of
automobiles.
(2)
Parking of automobiles in the minimum area required
for the front yard setback.
(3)
Fire district use.
(4)
Public utility structures, including telecommunications
towers or antennas.
