The Board of Appeals, as heretofore established
pursuant to the Village Law, is hereby continued with all powers and
duties prescribed by Village Law and by this chapter, which powers
and duties are summarized and more particularly specified as follows,
provided that none of the following provisions shall be deemed to
limit any of the power of the Board of Appeals that is conferred by
§§ 7-712, 7-712-a and 7-712-b of the Village Law. Said
Board shall have the power to adopt, from time to time, such rules
and procedure not inconsistent with law as it may determine to be
necessary to carry out the provisions of these regulations and to
exercise the authority vested in it by the Village Law.
A. Interpretation. On appeal from an order, requirement,
decision or determination made by an administrative official, the
Board of Appeals shall decide any question involving the interpretation
of any provision of this chapter, including determination of the exact
location of any district boundary line.
B. Variances. Where there are practical difficulties
or unnecessary hardships in the way of carrying out the strict letter
of the chapter, the Board of Appeals shall have the power in passing
upon appeals to vary or modify the application of any of the regulations
or provisions of this chapter relating to the use, construction or
alteration of buildings or structures or the use of land, upon application
by an appellant, so that the spirit of this chapter shall be observed,
public safety and welfare secured and substantial justice done.
(1) Use variances. Where, because of unnecessary hardship
relating to the land, an applicant desires to utilize land for a use
not allowed in the district in which the land is located, the Board
may grant a variance in the application of the provisions of this
chapter in the specific case, provided that as a condition to the
grant of any such variance the applicant shall demonstrate to the
Board, and the Board shall make each and every one of the following
findings, that for each and every permitted use under the zoning regulations
for the particular district where the property is located:
(a)
The applicant cannot realize a reasonable return,
provided that lack of return is substantial as demonstrated by competent
financial evidence;
(b)
The alleged hardship relating to the property
in question is unique, and does not apply to a substantial portion
of the district or neighborhood;
(c)
The requested use variance, if granted, will
not alter the essential character of the neighborhood;
(d)
The alleged unnecessary hardship has not been
self-created; and
(e)
Within the intent and purposes of this chapter
the variance, if granted, is the minimum variance necessary to afford
relief and at the same time preserve and protect the character of
the neighborhood and the health, safety and welfare of the community.
To this end, the Board may permit a lesser variance than that applied
for.
(2) Area variances. In making its determination, the Board
of Appeals shall consider the benefit to the applicant if the variance
is granted, as weighed against the detriment to the health, safety,
and welfare of the neighborhood or community by such grant. In making
such determination, the Board shall also consider the following factors:
(a)
Whether an undesirable change will be produced
in the character of the neighborhood or a detriment to nearby properties
will be created by the granting of the area variance.
(b)
Whether the benefit sought by the applicant
can be achieved by some method feasible for the applicant to pursue
other than an area variance.
(c)
Whether the requested area variance is substantial
in relation to the requirement.
(d)
Whether the proposed variance will have an adverse
effect or impact on the physical or environmental conditions in the
neighborhood or district.
(e)
Whether the alleged difficulty was self-created,
which consideration shall be relevant to the decision of the Board
but shall not necessarily preclude the granting of the area variance.
(f)
The Board, in the granting of an area variance,
shall grant the minimum variance that it shall deem necessary and
adequate to afford relief and at the same time preserve and protect
the character of the neighborhood and the health, safety and welfare
of the community. To this end, the Board may permit a lesser variance
than that applied for.
(3) Variances when subdivision, site plan or special permit applications are involved. Where a proposed site plan contains one or more features which do not comply with the zoning regulations, or where a proposed special permit use contains one or more features which do not comply with the zoning regulations, or where a proposed subdivision plat contains one or more lots which do not comply with the zoning regulations, application may be made to the Board of Appeals for an area variance or variances pursuant to Subsection
B(2), without the necessity of a decision or determination of an administrative official charged with the enforcement of this chapter or a referral by an approving agency acting pursuant to this chapter.
C. Conditions and safeguards. The Board of Appeals, in
the granting of both use variances and area variances, may prescribe
such reasonable conditions or restrictions applying to the grant of
a variance as it may deem necessary in each specific case, in order
to minimize the adverse effects of such variance upon the character
and property values of the neighborhood or community and to protect
the public health, safety and welfare. Such conditions or restrictions
shall be directly related to the proposed use of the property. Such
conditions or restrictions shall be incorporated in the building permit
and certificate of occupancy. Failure to comply with such conditions
or restrictions shall constitute a violation of this chapter, and
may constitute the basis for denial or revocation of a building permit,
certificate of conformance or certificate of occupancy and for all
other applicable remedies.
D. Appeal or application. An appeal shall be taken within
60 days of the order or decision appealed from, by filing with the
official or agency from whom the appeal is taken and with the Board
of Appeals a notice of appeal specifying the ground thereof. The official
or agency from whom the appeal is taken shall forthwith transmit to
the Board all the papers constituting the record upon which the action
appealed from is taken. A referral to the Board for a variance, or
a request for an interpretation, may be made at any time. All such
appeals and applications to the Board shall be made by the owner or
agent duly authorized, in writing, and shall be on forms prescribed
by the Board. Each appeal or application shall fully set forth the
circumstances of the case, shall refer to the specific provision of
the chapter involved, and shall exactly set forth, as the case may
be, the interpretation that is claimed, the details of the adjustment
that is applied for, and the grounds on which it is claimed that the
same should be granted.
E. Review by other agencies.
(1) Upon receipt of a completed appeal or application,
and at least 15 days before the date of any public hearing, the Secretary
of the Board of Appeals shall transmit to the Board of Trustees, acting
as the Planning Board, a copy of the appeal or application and all
papers related thereto with a notice of hearing. The Planning Board
may, with respect to any such appeal or application, submit a report
containing its views and deliberations prior to or at the hearing.
The Board of Appeals may also forward copies for review and report
to the Building Inspector, Village Engineer and to other such officials
and agencies of the Village as it deems appropriate.
(2) The Board of Appeals shall refer to the Nassau County
Planning Board for its recommendation all matters within the provisions
of Article 12B, §§ 239-l and 239-m of the General Municipal
Law at least 10 days prior to the public hearing.
F. Public hearing. The Board of Appeals shall conduct
a public hearing on every appeal, application or request made pursuant
to this chapter. Such public hearing shall be held within a reasonable
time from the date an appeal is taken or an application or request
is made to the Board.
G. Notice of hearing. Notice of the hearing shall be
published in the official newspaper at least five days prior to the
date of such hearing and upon such other notice as the Board, by regulation,
may require.
H. Decision. The Board of Appeals shall decide upon the
appeal for relief, interpretation or determination within 62 days
after the close of said hearing. The time within which the Board must
render its decision may be extended by mutual consent of the applicant
and the Board. Every decision of the Board of Appeals shall be by
resolution, shall be recorded and shall fully set forth the facts
of the case, the findings and the conclusions on which the decision
was based. The decision of the Board shall be filed in the office
of the Village Clerk within five business days after the day such
decision is rendered, and a copy of such resolution shall be mailed
to the applicant.
I. Rehearing. A motion for the Zoning Board of Appeals
to hold a rehearing to review any order, decision or determination
of the Board not previously reviewed may be made by any member of
the Board. A unanimous vote of all members of the Board then present
is required for such hearing 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 by persons acting
in good faith in reliance upon the reviewed order, decision or determination
will not be prejudiced thereby.
J. Fees. Any person or corporation, other than the Village
of Island Park, making any application to the Board of Appeals under
the provisions of this chapter shall pay to the Building Department
the sum as set forth in the Schedule of Fees to cover the cost of
advertising the notice of hearing, upon each application filed.
In all matters where appeal is made to the Board of Appeals for relief from the strict letter of this chapter when made upon the ground of practical difficulties or unnecessary hardship or for an exception set forth in the additional regulations (Article
X hereof), the Board of Appeals shall determine and vary the application of the provisions of this chapter in harmony with the laws of the State of New York applicable to villages upon the standards and guide hereinafter set forth.