The Board of Appeals shall have all the powers and duties prescribed by law and by this chapter, which are more particularly specified as follows, provided that none of the following provisions shall be deemed to limit any power of the Board that is conferred by law:
A. 
Interpretation. On appeal from an order, requirement, decision or determination made by an administrative official, or on request by an official, board or agency of the town, to decide any of the following questions:
(1) 
Determination of the meaning of any portion of the text of this chapter or of any condition or requirement specified or made under the provisions of this chapter.
(2) 
Determination of the exact location of any district boundary shown on the Zoning Map.
B. 
Variances.
[Amended 9-16-1969 by Ord. No. 73; 4-11-1995 by L.L. No. 2-1995]
(1) 
The Zoning Board of Appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and shall make such order, requirement, decision or determination as in its opinion ought to have been made in the matter by the administrative official charged with the enforcement of this chapter and to that end shall have all the powers of the administrative official from whose order, requirement, decision or determination the appeal is taken.
(2) 
Use variances.
(a) 
The Zoning Board of Appeals, on appeal from the decision or determination of the administrative official charged with the enforcement of this chapter, shall have the power to grant use variances, as defined herein.
(b) 
No such use variance shall be granted by the Zoning Board of Appeals without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship. In order to prove such unnecessary hardship, the applicant shall demonstrate to the Board of Appeals that for each and every permitted use under the zoning regulations for the particular district where the property is located:
[1] 
The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence.
[2] 
The alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood.
[3] 
The requested use variance, if granted, will not alter the essential character of the neighborhood.
[4] 
The alleged hardship has not been self-created.
(c) 
The Zoning Board of Appeals, in the granting of use variances, shall grant the minimum variance that it shall deem necessary and adequate to address the unnecessary hardship proven by the applicant, and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.
(3) 
Area variances.
(a) 
The Zoning Board of Appeals shall have the power, upon an appeal from a decision or determination of the administrative official charged with the enforcement of this chapter, to grant area variances, as defined herein.
(b) 
In making its determination, the Zoning Board of Appeals shall take into consideration 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:
[1] 
Whether an undesirable change be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance.
[2] 
Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance.
[3] 
Whether the requested area variance is substantial.
[4] 
Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.
[5] 
Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the Board of Appeals, but shall not necessarily preclude the granting of the area variance.
(c) 
The Zoning Board of Appeals, in the granting of area variances, shall grant the minimum variance that it shall deem necessary and adequate and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.
(4) 
The Zoning Board of Appeals shall, in the granting of both use variances and area variances, have the authority to impose such reasonable conditions and restrictions as are directly related to the proposed use of the property. Such conditions shall be consistent with the spirit and intent of this chapter, and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.
(5) 
Where the Zoning Board of Appeals finds the zoning classification of a particular property to be conducive to the deprivation of the reasonable use of the land or buildings and where the Board of Appeals finds the same condition to apply generally to other land or buildings in the same neighborhood or zoning districts said Board shall call this condition to the attention of the Planning Board.
C. 
Special permits.
(1) 
In addition to such powers as may be conferred on it by statute, the Board of Appeals shall have the power, after public notice and hearing and on application, to issue special permits for any of the uses specified in the use regulations in Article III as requiring such permits in the particular district, except for the special permits required to be issued by the Town Board pursuant to Article III, § 200-17D, hereof. In issuing such special permit, the Board of Appeals shall take into consideration the public health, safety and welfare and the comfort and convenience of the public in general and of the residents of the immediate neighborhood in particular and may prescribe such appropriate conditions and safeguards as may be required in order that the result of its action shall, to the maximum extent possible, further the expressed intent of this chapter and the accomplishment of the following objectives:
[Amended 9-16-1969 by Ord. No. 73; 3-22-1983 by Ord. No. 111]
(a) 
That all proposed structures, equipment or material shall be readily accessible to fire and police protection.
(b) 
That the proposed use shall be of such location, size and character that, in general, it will be in harmony with the appropriate and orderly development of the district in which it is proposed to be situated and will not be detrimental to the orderly development of adjacent properties in accordance with the zoning classification of such properties.
(c) 
That, in addition to the above, in the case of any use located in or directly adjacent to a residential district:
[1] 
The location and size of such use, the nature and intensity of operations involved in or conducted in connection therewith, its site layout and its relation to access streets shall be such that both pedestrian and vehicular traffic to and from the use and the assembly of persons in connection therewith will not be hazardous or inconvenient to or incongruous with the said residential district or conflict with the normal traffic of the neighborhood; and
[2] 
The location and height of buildings, the location, nature and height of walls and fences and the nature and extent of landscaping on the site shall be such that the use will not hinder or discourage the appropriate development and use of adjacent land and buildings.
(2) 
In issuing a special permit, the Board may require any walls, fences or landscaping which it deems necessary to protect the value of adjacent properties or to prevent any hindering of the appropriate development of adjacent land.
(3) 
Each application for a special permit shall be accompanied by a proposed plan showing the size and location of the lot, the location of all buildings and proposed facilities, including access drives, parking areas and all streets within 200 feet of the lot.
[Amended 9-16-1969 by Ord. No. 73]
(4) 
Any use for which a special permit may be granted shall be deemed to be a conforming use in the district in which such use is located, provided that such permit shall affect only the lot or portion thereof for which such permit shall have been granted.
[Amended 9-16-1969 by Ord. No. 73]
(5) 
The Board of Appeals may require that special permits be periodically renewed. Such renewal shall be granted following due public notice and hearing and may be withheld only upon a determination by the Board to the effect that such conditions as may have been prescribed by the Board in conjunction with the issuance of the original permit have not been, or are being no longer, complied with.
[Amended 9-16-1969 by Ord. No. 73]
D. 
Temporary certificate of occupancy.
(1) 
To authorize, upon denial by the Building Inspector of a certificate of occupancy, the issuance of a temporary certificate of occupancy by the Building Inspector, for a period not to exceed 90 days, for the completion of any alterations that are required under the provision of any law or ordinance or for the completion of a part of an uncompleted building, provided that the Board finds that:
[Amended 9-16-1969 by Ord. No. 73]
(a) 
The denial of a certificate of occupancy prior to completion of the said alterations or of the building would cause unnecessary hardship; and
(b) 
The safety of the occupants of the building and of adjacent buildings and land would be adequately assured under such terms and conditions as said Board may prescribe.
(2) 
Such temporary certificate shall not be construed as in any way altering the respective rights, duties or obligations of the owner or of the Town respective to the use or occupancy of the land or building, or any other matter covered by this chapter.
The powers and duties of the Board of Appeals shall be exercised in accordance with the following procedure:
A. 
The Board of Appeals shall not decide upon any appeal for a variance, special permit or interpretation of this chapter without first holding a public hearing. Notice of said hearing and of the substance of the appeal or application shall be given by publication in the official newspaper of the Town at least 10 days before the date of such hearing. In addition to such published notice, the Board of Appeals shall cause such notice to be mailed at least 10 days before the hearing to all owners of property which lies within 500 feet of any lot line of the property for which relief, approval or interpretation is sought and to such other owners as the Board of Appeals may deem advisable.
[Amended 9-16-1969 by Ord. No. 73; 12-15-2015 by L.L. No. 5-2015]
(1) 
The names of said owners shall be taken as they appear on the last completed tax roll of the Town.
(2) 
Provided that due notice shall have been published and that there shall have been substantial compliance with the remaining provisions of this section, the failure to give notice in exact conformance herewith shall not be deemed to invalidate action taken by the Board of Appeals in connection with the granting of any relief, approval or interpretation.
B. 
All appeals and applications made to the Board of Appeals shall be in writing and shall be accompanied by a fee in the amount set by resolution of the Town Board in the Fee Schedule.[1]
[Amended 9-16-1969 by Ord. No. 73; 5-12-1987 by L.L. No. 3-1987; 9-11-2007 by L.L. No. 8-2007]
[1]
Editor's Note: See Ch. A203, Fees.
C. 
Each appeal or application shall fully set forth the circumstances of the case, shall refer to the specific provision of the ordinance involved and shall exactly set forth, as the case may be, the interpretation that is claimed, the details of the variance that is applied for and the grounds on which it is claimed that the same should be granted.
[Amended 9-16-1969 by Ord. No. 73]
D. 
Should any appeal involve either of the two following conditions, the Secretary of the Board of Appeals shall transmit to the designated office or official a copy of the official notice of the public hearing not later than 10 days prior to the date of the hearing.
(1) 
Any change in the boundaries of any district, which change would occur within a distance of 500 feet of the boundary of any village or town.
[Amended 9-16-1969 by Ord. No. 73]
(2) 
Any change in the regulations prescribed for any district, any portion of which is located within 500 feet of the boundaries listed in Subsection D(1).
(3) 
The designated official for counties shall be the Clerk of the Board of Legislators. In villages and towns, the designated official shall be the Clerk of the municipality.
[Amended 9-16-1969 by Ord. No. 73; 3-26-1985 by L.L. No. 2-1985]
E. 
Prior to the date of any public hearing, the Secretary of the Board of Appeals shall transmit to the Secretary of the Planning Board a copy of any appeal or application, together with a copy of the notice of such hearing. The Planning Board may submit to the Board of Appeals an advisory opinion on said appeal or application at any time prior to the rendering of a decision by the Board of Appeals.
F. 
[2]Prior to final action, the Board of Appeals shall refer any matter involving any of the areas specified in Article XII, § 200-52E(1)(a) through (e), to the Westchester County Planning Board, in accordance with Section 277.61 of Chapter 277 of the Westchester County Administrative Code.
[Amended 9-16-1969 by Ord. No. 73; 3-26-1985 by L.L. No. 2-1985]
[2]
Editor's Note: Original Subsection 8.3.7, which immediately followed this subsection and which provided for review by the Hudson River Valley Commission, was repealed during codification; see Ch. 1, General Provisions, Art. II.
G. 
Every decision of the Board of Appeals shall be recorded in accordance with standard forms adopted by the Board, shall fully set forth the circumstances of the case and shall contain a full record of the findings on which the decision is based. Every decision of the said Board shall be by resolution, and each such resolution shall be filed in the office of the Town Clerk by case number, under one of the following headings: "interpretation," "variances" or "special permits," together with all documents pertaining thereto. Regarding its decision in each case, the Board of Appeals shall notify the Town of Ossining Building Inspector, Town Board, Town Planning Board and any designated official of an affected municipality or agency given notice of hearing as set forth in Subsection D.
[Amended 9-16-1969 by Ord. No. 73]
H. 
All the provisions of this chapter relating to the Board of Appeals shall be strictly construed. Said Board, as a body of limited jurisdiction, shall act in full conformity with all provisions of law and of this chapter in compliance with all limitations contained therein.
[Amended 9-16-1969 by Ord. No. 73]
I. 
Unless construction is commenced and diligently pursued within 12 months of the date of the granting of a variance, such variance shall become null and void.
J. 
For those improvements or changes of use for which special permit approval from the Board of Appeals is required, no such improvements or change of use may be implemented and no building permit or certificate of occupancy may be issued until:
[Added 4-11-1995 by L.L. No. 2-1995]
(1) 
Special permit approval by the Board of Appeals for said improvements or change of use is granted by resolution.
(2) 
The special permit plans, revised if so required by said resolution, have been signed by a duly authorized representative of the Board of Appeals.
(3) 
Site plan approval from the Planning Board has been secured.
K. 
Expiration of special permit approval.
[Added 4-11-1995 by L.L. No. 2-1995]
(1) 
Approval of a special permit shall expire if:
(a) 
The applicant has not secured site plan approval within one year from the date of the adoption of special permit approval;
(b) 
Site plan approval expires;
(c) 
All required improvements are not maintained and if all conditions and standards of the special permit approval are not complied with throughout the duration of the approved use; or
(d) 
The approved use ceases to exist for any reason for more than one year.
(2) 
The Board of Appeals may extend the approval of a special permit if, in its opinion, such extension is warranted by the particular circumstances involved.