Chapter A150 Rules and Regulations of the Zoning Board of Appeals

To hear and decide appeals from, and to review any order, requirement, decision or determination made by, the Building Inspector or any other officer, official or board charged with enforcement of the Zoning Law of the Incorporated Village of Sea Cliff[1] (hereinafter referred to as the "Zoning Law").

Editor's Note: See Ch. 138, Zoning.

To hear and decide appeals from the Board of Architectural Review.[2]

Editor's Note: See Ch. 38, Architectural Design Review.

Applications:

To hear and decide applications for special permits as authorized by the Zoning Law.

Other matters:

To hear and decide all other matters referred to it by the Village Board of Trustees or matters which it may be required to decide under the provisions of any law of the State of New York, and local law of the Incorporated Village of Sea Cliff or this Code.

Employees.

[Added 6-19-2000]

To employ experts.

Where an expert is to be compensated by the Village, the prior authorization of the Board of Trustees shall be required. Such authorization shall be by resolution of the Board of Trustees.

Upon the approval of the Board of Trustees, the expert shall be retained by the Zoning Board or the Board of Trustees and compensated by the Village in the manner authorized by the resolution of the Board of Trustees.

The Zoning Board shall appoint a Secretary to the Zoning Board and shall have such other clerks and secretaries as shall be appointed by the Board of Trustees. The Secretary shall be appointed for a period of not more than one year and shall serve the Zoning Board at the discretion of the Zoning Board.

[Amended 9-6-2011 by L.L. No. 7-2011]

§ A150-2 Types of meetings.

The Board shall hold the following types of meetings:

Public hearings: meetings for the purpose of receiving evidence, hearing witnesses and considering the following:

Appeals from and review of any order, requirement, decision or determination of the Building Inspector or other administrative officer, official or board charged with enforcement of the Zoning Law.

Applications for special permits as provided for in the Zoning Law.

All other matters, including other appeals and applications, referred to it by the Village Board of Trustees or matters which it may be required to decide under the provisions of any law of the State of New York, any local law of the Incorporated Village of Sea Cliff or this Code.

Public meetings: meetings for the purpose of conducting official business of the Board.

Executive sessions.

Executive sessions may be convened pursuant to law for action on the following types of matters:[1]

Matters which would imperil the public safety if disclosed.

Matters which might disclose the identity of a law enforcement agent or informer.

(c)

Information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed.

(d)

Discussions regarding proposed, pending or current litigation.

(e)

Collective negotiations pursuant to the Civil Service Law.[2]

Editor's Note: See Civil Service Law, Article 14.

(f)

The medical, financial, credit or employment history of any person or corporation or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of any person or corporation by the Board.

(g)

The preparation, grading or administration of examinations.

(h)

The proposed acquisition, sale or lease of real property, but only when publicity would substantially affect the value of the property.

Editor's Note: See Public Officers Law, Article 7.

A motion calling for an executive session must identify the general subject to be considered at that session. Such motion must be adopted by a majority vote of the Board taken at a meeting which is open to the public.

Attendance at executive sessions shall be permitted only to the members of the Board, their designated representatives, invited members of the Village staff and other persons authorized by the Board.

Deliberation sessions. Meetings which are quasi-judicial in nature, called as required for the purpose of discussing pending appeals or applications. Such meetings shall be closed to the public. Only such selected persons as the Board may invite shall be present. No evidence shall be received at such sessions, no witnesses heard and no final decisions made.

Such other types of meetings as shall be determined to be necessary from time to time by majority vote of the Board.

§ A150-3 Applications and fees.

Form of appeals and applications. An original and 11 copies of every appeal (e.g., a request to modify or reverse a decision of the Building Inspector) or every application (e.g., a request for a special permit) shall be made to the Board on forms provided by the Village Clerk, or in substantially similar form. The appeal or application shall include the data required by such forms and shall be accompanied by any necessary surveys, diagrams, consents, other supporting matter and statement of facts so as to supply all information necessary for a clear understanding by the Board.

Filing fees. The filing fee for such appeal or application shall be as set forth in Chapter A142, Schedule of Fees, and shall accompany each appeal or application filed.

Where to file papers. Appeals or applications shall be filed in the office of the Village Clerk, who also acts as Clerk to the Zoning Board of Appeals. Upon receipt of an appeal or application, properly filed, a copy shall be sent by the Clerk to each member of the Board and the Board's counsel.

In the event that an application or appeal is withdrawn prior to the time the Village has submitted a notice of public hearing regarding such application or appeal to the newspaper for publication, a refund amounting to 2/3 of the filing fee for such application or appeal shall be returned to the applicant.

[Added 7-13-1987]

If an application or appeal is not withdrawn in time to permit deletion of the notice therefor from the published notice of public hearing, no refund shall be made.

[Added 7-13-1987]

Notice to other boards. The Village Clerk shall, upon receipt of the appeal or application and accompanying information, forward copies of same to the Chairmen of the Board of Architectural Review, Environmental Conservation Commission and Planning Board for review and comment.

Deposit requirements. In all cases where the Village will incur expenses, including attorneys' fees in excess of five hours or any other consultant providing engineering, surveying or other investigative or expert advice, payment for those customary and reasonable fees shall be the responsibility of the applicant. As determined by the Building Department at the time of the submission of an application or at such time as the Building Department, upon becoming aware of any such anticipated costs, determines, an applicant shall be required to deposit with the Village a sum as a reasonable estimate of those costs, as may be determined from time to time by the Board of Trustees. An applicant shall only be responsible for the costs that are actually and necessarily incurred by the Village in connection with the application. If the amount of the deposit is insufficient to cover the direct costs incurred by the Village, the applicant shall, at such time as fixed by the Village Clerk, deposit with the Village an amount deemed sufficient to defray all such costs. Upon a determination that a deposit is required or that the then on hand deposit is insufficient, no further hearings on the application shall take place until the required sum is deposited with the Village Clerk. If the amount deposited exceeds the actual costs actually and necessarily incurred by the Village, the unused portion of such deposit shall be returned to the applicant within 90 days after the decision on the application is filed with the Village Clerk.

[Amended 2-12-2019 by L.L. No. 2-2019]

Execution of appeal and application. Every appeal and application to the Board shall be signed by an owner or by a contract vendee of the premises affected by such appeal or application, or by a duly authorized agent on his behalf, and shall contain an affirmation, made under penalty of perjury, that it is true, correct and complete to the best of the knowledge of the person so signing.

Survey requirements. An accurate survey of the subject property prepared by a licensed land surveyor, showing all the structures erected or to be erected thereon and any additions thereto and their distances from all property lines, must be attached to the original and each copy of the appeal or application.

Time limitation. Every appeal to the Board must be filed in the office of the Village Clerk within 60 days from the date of the order, requirement, decision or determination being appealed from.[1]

§ A150-4 Schedule of hearings and meetings; calendar.

Editor's Note: See Village Law § 7-712-a, Subdivision 5.

Effect of improper appeals and applications. Any communication purporting to be an appeal or application shall be regarded as a mere notice of intention to seek relief and shall be of no force or effect until it is made in the form which is required by this chapter. The Clerk, upon receipt of any such communication, shall supply the writer thereof with the proper forms for presenting his appeal or application.

Hearings of the Board on appeals and applications shall be scheduled in accordance with the following procedure:

Upon receipt by the Village Clerk of three or more notices of appeal and/or applications, in proper order and in final form for review, within a period of four weeks from the date of the last public hearing, the date, place and time of the next hearing to be held on such appeals and/or applications shall be fixed by the Chairman of the Board, such date to be not more than four weeks from the Thursday next following the receipt of the third notice of appeal and/or application.

If only one or two notices of appeal and/or applications are received within such four-week period, the Chairman shall set the next hearing date to be not more than eight weeks from the date of the last hearing.

In any case where the appeal or application indicates that subdivision or site plan approval by the Planning Board will be required,[1] the appellant or applicant shall submit an application to the Planning Board simultaneously with the filing of his appeal or application to the Zoning Board of Appeals. The Planning Board shall take no final action until the Zoning Board has reached a decision on the variance appeal or special permit application.

Editor's Note: See Ch. 107, Site Plan Review and Ch. 112, Subdivision of Land.

In any case where the appeal or application indicates that a special permit or other approval will be required by the Board of Trustees in order to use the premises as proposed, the appellant or applicant shall submit an application to the Board of Trustees simultaneously with the filing of his appeal or application to the Zoning Board of Appeals. The appeal or application to the Zoning Board shall not be considered to be complete or in proper order and in final form for review, and no public hearing shall be held thereon by the Zoning Board, until final action has been taken by the Board of Trustees and a copy of such Board's decision made a part of the appeal or application to the Zoning Board of Appeals.

(5)

In any case where the appeal or application indicates that the matter must be referred to the Nassau County Planning Commission for review,[2] the Board may, in the discretion of the Chairman, subject to review by majority vote of the Board, determine that the appeal or application is not complete or in proper order and in final form for review, and no public hearing shall be held thereon by the Zoning Board until the recommendation of the Nassau County Planning Commission has been received and a copy of such recommendation made a part of the appeal or application to the Zoning Board of Appeals. If a hearing is held on such matter prior to receipt of the recommendation from the Nassau County Planning Commission, the Board may, by majority vote at a public meeting or hearing, adjourn such hearing pending receipt of the recommendation from the Nassau County Planning Commission, on the grounds that the appeal or application is not complete or in proper order and in final form for review.

Editor's Note: See General Municipal Law § 239-m, and § A150-7G of this chapter.

(6)

In any case where the application indicates that the property is in a special flood hazard area,[3] the foregoing provisions of this section shall not initially apply, and no further action shall be taken on the application until a development permit indicating compliance with flood hazard reduction provisions is obtained. Upon issuance of a development permit, the foregoing provisions of this section shall then apply. Failure to obtain a development permit shall preclude any further action on an application under this or any other chapter of this Code.[4]

§ A150-5 Notice of hearings and other meetings.

Editor's Note: See Ch. 48, Building Construction Administration, Art. XVI, which refers to flood damage protection.

[4]

Editor's Note: See Ch. 48, Building Construction Administration, Art. XVI, for requirement to obtain a development permit (relating to construction in areas of special flood hazard) before any other permits or required approvals shall be issued.

(7)

Notwithstanding the above, hearings may be held at such other dates, places and times as the Board may determine by majority vote either at public meetings or work sessions.

Public meetings and work sessions may be called by the Chairman of the Board and may also be held as determined by majority vote of the Board, either at a public meeting or work session.

Not less than seven days before the date fixed for a hearing on an appeal or application, as provided above, a calendar shall be furnished by the Village Clerk to each member of the Board. At the same time, a copy of such calendar shall be posted in the office of the Village Clerk. A copy of the notice of hearing, as published, shall be considered the calendar.

Public hearings.

The Chairman shall cause a notice of public hearing to be given at least seven days prior to the date fixed for such hearing, by publication of said notice in the official Village newspaper[1] and by posting such notice in the following locations:

The office of the Village Clerk.

The Village Fire Department headquarters.

(c)

The Senior Library.

Editor's Note: See Ch. 21, Official Village Newspaper.

The notice of public hearing shall clearly describe the property in question and what the nature of the hearing will be. It shall also state the date, time and place of the hearing.

The Village Clerk shall send a notice of public hearing, by regular first-class mail, to all members of the Board and to each appellant and applicant at least seven days prior to the date fixed for such hearing.

On any application which involves property adjoining a boundary line with the City of Glen Cove, the Village Clerk shall send a notice of public hearing, by regular first-class mail, to the office of the Clerk of the City of Glen Cove.

(5)

The applicant shall prepare a map (in such form as may be required by the Village) showing the names of the owners of all parcels of property located within a radius of 200 feet of the applicant's property. Upon being provided with a copy of the legal notice of public hearing (on a form provided by the Village), the applicant shall deliver to the Building Department, prepaid, first-class mail, stamped envelopes addressed to each owner on the radius list, with a return address provided on the envelope as Village Hall, 300 Sea Cliff Avenue, PO Box 340, Sea Cliff, New York 11579, and each envelope containing therein a copy of the legal notice of public hearing, not less than 12 days prior to the public hearing. The names of said owners shall be taken as they appear on the last completed tax roll of the Village, except that the addresses must be those of the actual places of residence of the owners. Provided that the applicant timely submits all required, prepaid envelopes containing the required legal notice, at least 10 days prior to the public hearing, the Village shall mail the envelopes.

[Amended 7-7-1986; 2-22-2005; 2-12-2019 by L.L. No. 2-2019]

Public hearings and legal notices for applications involving air conditioner units or playground equipment.

[Added 12-9-2019 by L.L. No. 8-2019[2]]

Notwithstanding any other provision in this Code, applications for Zoning Board of Appeals, as permitted in this subsection, shall be in accordance with the following procedure.

On an interior lot, an applicant for an air conditioner unit or playground equipment approval shall provide a notice, as prepared by the Village, to property owners of all properties that abut the applicant's premises and all properties on the opposite side of the street of the applicant's premises, including all properties that either include land between the side property lines of the applicant's premises or have at least one side or rear property line that is directly across from any portion of applicant's property.

On a corner lot, an applicant for an air conditioner unit or playground equipment approval shall provide a notice, as prepared by the Village, to property owners of all properties that abut the applicant's premises, all properties abutting the corner intersection, and all properties on the opposite side of the street and between the intersecting corner and the next intersection

(c)

For applications that would require Zoning Board of Appeals approval to permit an air-conditioning condenser unit or playground equipment, in lieu of the notice requirement provided in § A150-5A, the notice shall be sent in the following manner. The applicant shall prepare a map (in such form as may be required by the Village) stating the names of the owners of all properties to whom notice is required to be provided pursuant to § A150-5B(1) and (2). The applicant also shall deliver to the Building Department unsealed, prepaid, stamped envelopes addressed to each such property owner, with a return address provided on the envelope as Village Hall, 300 Sea Cliff Avenue, PO Box 340, Sea Cliff, New York 11579, and each envelope containing therein a copy of the plans depicting all details of the proposed unit or equipment, including the location, height, materials, and any proposed sound or visual attenuation measures. The Village shall place a notice in each envelope providing that the recipient of the notice has 14 calendar days to submit to the Village a written objection or concern to the fencing, and shall thereafter mail the envelopes.

(d)

If no person submits a written objection or concern to the Village regarding the proposed unit or equipment, within the fourteen-day period, and the proposed unit or equipment requires no further approvals or review by any other board or agency with jurisdiction, the Building Department shall issue a building permit for the proposed unit or equipment.

(e)

If any person presents a written objection or concern to the Village regarding the proposed unit or equipment, the applicant may make an application for Zoning Board of Appeals approval for permission to install the air-conditioning unit or playground equipment, upon submitting an application to the Building Department requesting a variance or other relief. The Zoning Board of Appeals application procedure shall be the same as otherwise provided in this chapter.

Editor's Note: This ordinance also renumbered former Subsections B through F as Subsections C through G, respectively.

Notice of meetings scheduled at least one week in advance, other than regularly scheduled meetings.

Unless held in conjunction with a public hearing, notice of meetings scheduled at least one week in advance shall be posted at least 72 hours in advance of such meetings in the office of the Village Clerk.

Unless held in conjunction with a public hearing, notice of meetings scheduled at least one week in advance shall be given to the official Village newspaper[3] at least 72 hours in advance of such meetings.

When notice to the official Village newspaper is sent by mail, it shall be sent at least one week in advance of such meetings to ensure that such notice will meet the seventy-two-hour advance requirement.

When notice to the official Village newspaper is delivered personally or is given by telephone, a form or log shall be kept in which the person providing the notice shall record the date, time and name of the representative of the news media to whom notice was provided, and shall so certify in writing.

Editor's Note: See Ch. 21, Official Village Newspaper.

Notice of meetings scheduled less than one week in advance.

Unless held in conjunction with a public hearing, notice of meetings scheduled at least one week in advance shall be posted as soon as practicable in the office of the Village Clerk.

To the extent practicable, notice to the official Village newspaper shall be delivered personally or by telephone in accordance with the procedure set forth above.

Notice of regularly scheduled meetings.

Unless held in conjunction with a public hearing, notice of meetings that are to be held regularly at specific times and locations and on specific dates may be given by a single notice to the public and the news media annually.

Unless held in conjunction with a public hearing, notice of the regularly scheduled meetings shall be posted in the office of the Village Clerk.

Unless held in conjunction with a public hearing, notice of the regularly scheduled meetings shall be provided by mail to the official Village newspaper.

Any news media other than the official Village newspaper which request notice of meetings shall be given such notice in accordance with this section.

Designation and duties of person to provide public notice.

Notice of meetings shall be provided to the public and the official Village newspaper by the Clerk of the Board, or, if there is none, then by the Board's Secretary.

Whenever possible, notice of the date, time and place of meetings shall be provided to any person requesting same, whether such request is made in person, in writing or by telephone.

Deliberation. Notice of deliberation sessions shall be given to all members of the Board at least 24 hours in advance of such session.

§ A150-6 Conduct of meetings; minutes.

The Chairman shall preside at all meetings and, subject to these rules, shall decide all points of order or procedure, unless otherwise directed by a majority of the Board in session at that time. Should the Chairman be absent at any meeting, he shall designate, in advance, an Acting Chairman to act at such meeting. Should the Chairman fail to do so, the Board shall, by majority vote, designate such Acting Chairman at its meeting.

At the discretion of the Chairman, the following shall be the general order of conducting business at a public hearing:

Call hearing to order.

Read notice of public hearing, including statement of the nature of the appeal or application.

Presentation of appeal or application.

Questions by members of the Board.

(5)

Statements by persons in favor of the appeal or application.

(6)

Statements by persons opposed to the appeal or application.

(7)

Questions by persons in attendance, as permitted by the Chairman.

(8)

Conclusion of the hearing.

In order to maintain orderly procedure, speakers shall not be interrupted except by, or with permission of, the Chairman. All appellants, applicants, speakers and witnesses shall either be sworn or, in the absence of being sworn, shall be required to state the truth as if under oath and under legal liability for full penalties for perjury. Attorneys appearing before the Board shall not be sworn but shall be fully accountable for the accuracy and truth of all their statements to the Board and those present.

Every person before the Board shall abide by the order and direction of the Chairman. Discourteous or disorderly conduct shall be regarded as a breach of privilege and shall be dealt with as the Chairman deems proper.

On all appeals and applications, an owner or contract vendee of the property affected shall appear before the Board in person or by his duly authorized agent or attorney. In case an owner or contract vendee fails to appear in person or by his duly authorized agent or attorney as aforesaid, the Board may dismiss his appeal or application or adjourn the same to a later date.

Except as may have been hereinbefore provided, meetings shall be governed by standard parliamentary procedures.

Meetings of the Board shall be held and formal action taken thereat only when a quorum is present. A quorum shall be a simple majority of the total number of Board members. If a quorum is present at a meeting, affirmative votes equal in number to a majority of the whole Board shall be necessary for any action to be taken, except in cases where, by law, a larger proportion of the votes of the whole Board shall be required.

The Clerk or Secretary shall record the name of each Board member present and the manner in which such member voted, including abstentions, on each motion.[1] However, where a motion is approved or rejected by unanimous vote, it shall be sufficient to record only those members present and the fact of the unanimous vote.

Editor's Note: See Public Officers Law §§ 87 and 96.

Minutes shall be taken at all meetings of the Board which are open to the public and shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon.

Minutes shall be taken at executive sessions only of actions taken by formal vote, if any, and shall consist of a record or summary of the final determination of such action. Such record or summary shall not include any matter which is not required to be made public.[2]

Editor's Note: See Public Officers Law, Article 6, and Ch. A146, Regulations Relating to Public Access to and Inspection and Copying of Public Records.

Minutes of meetings of the Board which are open to the public shall be available to the public after their approval by the Board at the next regular meeting. Minutes of executive sessions shall be available to the public within one week from the date of the executive session.[3] In the event that the Board shall not have approved such minutes of executive sessions within the one-week period, the Chairman is authorized to conditionally approve such minutes prior to public release, with such conditional approval subject to ratification by the Board at the next regular meeting.

Editor's Note: See Public Officers Law § 96.

Stenographic minutes shall be taken at all public hearings unless waived by the Chairman and the appellant or applicant.

§ A150-7 Disposition of cases.

The final decision or determination by the Board on any appeal or application shall be made and announced at a public meeting and at a meeting of the Board of Trustees. By law, a decision must be made within 62 days from the date of the final hearing on such appeal or application;[1] however, failure to make a decision within such time shall not be deemed a grant of the relief requested.

Editor's Note: See Village Law § 7-712-a.

A written decision or determination (findings of fact and conclusions of law), signed by the Chairman, shall be prepared and filed with the Village Clerk as soon as practicable following the public hearing. Such written decision or determination shall record the vote of all Board members voting. Appellants and applicants shall be notified promptly thereafter by the Village Clerk of such decision or determination.

In the case of appeals, the order, requirement, decision or determination appealed from may be affirmed, reversed or modified, in whole or in part, or may be dismissed for lack of jurisdiction or prosecution.

In the case of applications for special permits, the application may be granted or denied in whole or in part.

The Board, in reversing or modifying any order, requirement, decision or determination appealed from or in granting any appeal or application, may impose such terms and conditions as in its discretion and judgment it deems necessary or proper, including the posting of cash security or bonds to ensure compliance with such terms and conditions.

A copy of each decision of the Zoning Board of Appeals, when rendered, shall be forwarded to the Building Inspector. In cases where an appeal or application has been granted, and conditions imposed thereon, the Building Inspector shall not issue a certificate of occupancy until, in his judgment, such conditions have been complied with.

All appeals or applications relating to real property located within 500 feet of a boundary of the Village, the boundary of any existing or proposed county or state park or recreation area, any county or state road or highway, county drainage facility or state or county building must be referred to the Nassau County Planning Commission for review before the Board of Appeals can take final action on the appeal or application.[2] The Board may not render a decision until it receives the Nassau County Planning Commission's recommendations, which are to be made within 30 days after said Commission receives a full statement of the appeal or application.[3]

Editor's Note: See General Municipal Law § 239-m.

Editor's Note: See § A150-4A(5) of this chapter regarding the scheduling of hearings where the recommendation of the Nassau County Planning Commission is required.

The concurring vote of a majority of the Board shall be necessary to any decision or determination. However, a decision or determination which is contrary to the recommendation of the Nassau Planning Commission on referred appeals and applications requires a concurring vote of a majority plus one of all the members of the Board. If there is less than such a majority vote in favor of an appeal of application, such action shall constitute a denial thereof. Within seven days after final action by the Zoning Board of Appeals on any recommendation, modification or disapproval of the Nassau County Planning Commission, the Board shall file a report with said Commission of the final action which it has taken.

In any case where approval by the Board of Architectural Review shall be required,[4] such approval may be granted prior to a final decision by the Zoning Board of Appeals. However, the Building Inspector shall not issue a building permit until a final decision has been made by the Zoning Board of Appeals and there has been compliance with all applicable laws and provisions of this Code.

[4]

Editor's Note: See Ch. 38, Architectural Design Review.

Any appellant or applicant may withdraw his application or appeal to the Board at any time prior to action thereon with the consent of the Board.

Any person aggrieved by the decision of the Zoning Board of Appeals may appeal such decision to the Supreme Court of the State of New York as provided in Article 78 of the Civil Practice Law and Rules.

§ A150-8 Rehearings.

No appeal or application dismissed or denied, in whole or in part, may be considered again, except on a request by the appellant or applicant to grant a rehearing and restore the case to the calendar. A request to grant a rehearing shall be entertained by the Board if substantial new evidence is submitted to it, or for such other reason as the Board, in its discretion, considers sufficient. If, on motion of a member of the Board adopted by the affirmative vote of a majority of the Board present, the request is granted, the case shall be put on the calendar for rehearing.

Unless waived by the Board in whole or in part, the request for rehearing shall be made in the same manner and form and for the same fees as an original appeal or application. The appellant or applicant shall recite the reasons for requesting the rehearing and shall provide any necessary supporting data with his request.

Requests for rehearings shall be considered to be the same as a notice of appeal for purposes of fixing the date upon which such request shall be considered, and in that respect the provisions of § A150-4 of these rules shall apply. However, such requests need not be considered at a public hearing or meeting, and only the member of the Board need be given notice of when such request shall be considered. The initiation of a request for a rehearing shall in no way be construed to waive or limit the time requirements for the institution of an Article 78 proceeding.[1]