Town of Brookhaven, NY
Suffolk County
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Table of Contents
Table of Contents

§ 85-53 Establishment; membership.

A. 
The Town Board shall appoint a Board of Zoning Appeals consisting of seven members and shall designate the Chairperson of such Board as provided herein. Of the seven members at least one will be a licensed architect, and additionally at least two members will be either a licensed architect, a licensed engineer, a licensed attorney, an environmentalist or a certified planner. Additionally, four positions will be appointed as community members at large. Said composition to be phased in with any reappointment and/or new appointment effectuated on or after the effective date of this section. Nothing herein contained will invalidate decisions of this Board during this phase-in period.
B. 
Office established.
(1) 
There shall be in the Town of Brookhaven an Office of the Board of Zoning Appeals. The principal executive officer and administrative head of such Office shall be the Chairperson of the Board of Zoning Appeals, who shall be appointed by the Town Board to said Office for such term and at such compensation as may from time to time be fixed by the Town Board.
(2) 
The Town Board may appoint a Deputy Chairperson at such compensation and for such term as may from time to time be fixed by the Town Board, who shall generally act in behalf of the Chairperson and who shall perform such duties as may be directed by the Chairperson and as are vested in and imposed upon that office by the provisions of this chapter, by statute or by other lawful authority.
(3) 
Before entering upon the duties of his office, the Chairperson shall execute and file with the Town Clerk an official undertaking, if the same is required by the Town Board, in such sum as prescribed by the Town Board and in such form as approved by the Town Attorney.
(4) 
The Chairperson shall have such powers as prescribed by law as shall be necessary for the proper administration of the office consistent with applicable provisions of law.
C. 
Powers of the Town Supervisor. Nothing herein contained shall be construed to delegate or transfer any power of the Town Supervisor, as outlined in the Town Law of the State of New York, or any statutory or other powers which may be lawfully executed by said Supervisor.
D. 
The Town Board may appoint any person as a member of the Board of Zoning Appeals for a term of three years, at such compensation as may from time to time be fixed by the Town Board. After the expiration of the terms of the members serving on the Board of Zoning Appeals, any member reappointed or any successor in office shall serve for a term of three years. If a vacancy shall occur other than by expiration of term, it shall be filled by the Town Board by appointment for the unexpired term. However, no such appointment shall exceed three years. Any new appointment, reappointment or appointment to a vacancy shall not exceed three years.

§ 85-54 Adoption of rules; meetings; records.

A. 
The Board of Appeals shall adopt rules necessary to the conduct of its affairs, in keeping with the provisions of this chapter. Meetings shall be held at the call of the Chairman and at such other times as the Board may determine.
B. 
The Board shall keep minutes of its proceedings and records of its examinations and other official actions, all of which shall be a public record.

§ 85-55 Appeal procedure.

[Amended 10-28-2014 by L.L. No. 22-2014, effective 11-4-2014]
A. 
Appeals to the Board of Appeals concerning the interpretation or administration of this chapter may be taken by any person aggrieved or by any officer or department of the governing body of the Town affected by the decision of the administrative official.
B. 
All appeals and applications made to the Board shall be in writing, on forms prescribed by the Board. The Board of Appeals shall fix a reasonable time for the hearing of the appeal and give public notice thereof, as well as due notice to the applicant.
C. 
The applicant shall mail notice of the hearing by either certified or registered mail, return receipt requested, to every property owner, as shown on the current Brookhaven assessment rolls and certified by the Department of the Assessor on a tax map excerpt radius map prepared by that Department within the area immediately adjacent and directly opposite thereto for a distance of 200 feet from the perimeter of the property; those properties from 201 feet to 500 feet shall be notified by regular mail, with the exception of applications seeking relief in connection with accessory structures, which radius notification of the hearing by certified or registered mail, return receipt requested, shall remain at 200 feet. The five-hundred-foot notice requirement shall be required for all applications submitted on or after the effective date of this amendment.
D. 
The following shall be submitted with such application:
(1) 
A copy of the notice sent to property owners.
(2) 
The Assessor-certified Tax Map excerpt radius map in duplicate, containing the names and addresses of the owners to whom notices were sent.
(3) 
Return receipts.
(4) 
An affidavit of mailing of the aforesaid notices.
(5) 
Three surveys, giving an exact description and location of the property with all existing and proposed structures and setbacks from all property lines.
(6) 
Radius map.
(a) 
In the event that the application is for a variance based upon a claim of conformity with the lots and development in the surrounding area, the application must be accompanied by a radius map, prepared by a licensed engineer or licensed surveyor, depicting the following information:
[1] 
Showing, by courses and distances, the property which is the subject of the application and all of the properties within 500 feet of the perimeter line of said property. This five-hundred-foot notice requirement shall be required for all applications submitted on or after the effective date of this amendment.
[2] 
Showing to scale all structures within the area, indicating the use, and showing the current zoning of all areas depicted and showing the distance and direction of the nearest intersecting street.
(b) 
All such radius maps shall contain the following certification: "I do hereby certify that the radius map accurately describes the uses of the property surrounding the subject premises as of (date). Signature
"
(c) 
In the event that the application is for a variance other than lot area, the Chairman may waive the above requirements.
(7) 
An affidavit of posting of the notice required herein.
E. 
Forms of notice shall be kept available at the office of the Board of Zoning Appeals.
F. 
Posting.
(1) 
For applications involving variances or special permits on residential parcels, at least one poster, not less than one foot by two feet in size, must be conspicuously posted along each street frontage of the property which is the subject of the application at least 10 days prior to the date set for the public hearing before the Board of Zoning Appeals. For applications involving variances or special permits on commercial or industrial parcels, said poster must be not less than three feet by four feet in size and must be conspicuously posted along each street frontage of the property which is the subject of the application at least 10 days prior to the date set for the public hearing before the Board of Zoning Appeals. Such posters shall contain the following information. This ten-day posting requirement shall be required for all applications submitted on or after the effective date of this amendment.
(a) 
A brief explanation of the proposed variance or special permit requested.
(b) 
That a public hearing will be held before the Board of Appeals at a specified date, and the time and place with regard to the proposed hearing.
(2) 
Said poster must remain in place until the public hearing has been completed and must be removed not later than seven days thereafter. The applicant or applicant's agent shall verify that said poster is still in place on a daily basis, and shall promptly replace said poster should it be removed or defaced.
(3) 
The Board of Zoning Appeals shall adopt regulations governing the format of said poster and the manner and place in which it is posted. Said Board may require the applicant to use a poster supplied by it, in which event the Board of Appeals may set a fee to cover the cost of said poster.

§ 85-56 Delegation of authority to Town Board.

The intent of this section and § 85-57 is to delegate certain authority, powers, actions, functions and responsibilities previously delegated to and performed by the Board of Appeals to the Town Board. It is the Town Board's express intent and purpose by this section and § 85-57, pursuant to § 10 of the New York State Municipal Home Rule Law and § 10 of the New York State Statute of Local Governments, to supersede §§ 267, 267-a, 267-b and 274-b of the New York State Town Law, to the extent necessary, by reserving and delegating certain authority powers, actions, functions and responsibilities from the Board of Zoning Appeals to the Town Board.

§ 85-57 Powers and duties.

The Board of Zoning Appeals shall have the following powers and duties:
A. 
Special permits.
(1) 
To ensure special permits for any of the areas for which this chapter requires the obtaining of such permits from the Board of Zoning Appeals. In granting such permits, the Board may limit the duration of the special permits and prescribe appropriate conditions and safeguards in conformity with this chapter. No special permit shall be granted by the Board of Appeals unless it shall determine:
(a) 
That the use will not prevent the orderly and reasonable use of adjacent properties or of properties in the surrounding area or impair the value thereof.
(b) 
That 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 districts.
(c) 
That the safety, health, welfare, comfort, convenience or order of the Town will not be adversely affected by the proposed use and its location.
(d) 
That the use will be in harmony with and promote the general purposes and intent of this chapter.
(2) 
In making such determination, the Board of Zoning Appeals shall give consideration, among other things, to:
(a) 
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.
(b) 
The conservation of property values and the encouragement of the most appropriate uses of land.
(c) 
The effect that the location of the proposed use may have upon the creation or undue increase of traffic congestion on public streets, highways or waterways.
(d) 
The availability of adequate and proper public or private facilities for the treatment, removal or discharge of sewage, refuse or other effluent, whether liquid, solid, gaseous or otherwise, that may be caused or created by or as a result of the use.
(e) 
Whether the use or materials incidental thereto or produced thereby may give off obnoxious gases, odors, smoke or soot.
(f) 
Whether the use will cause disturbing emission of electrical discharges, dust, light, vibration or noise.
(g) 
Whether the operation 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 the Town or by other competent governmental agency.
(h) 
The necessity for an asphaltic or concrete surfaced area for purposes of off-street parking and loading of vehicles incidental to the use and whether such area 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.
(i) 
Whether a hazard to life, limb or property because of fire, flood, erosion or panic may be created by reason or as a result of the use or by the structures to be used therefor or by the inaccessibility of the plot or structures thereon for the convenient entry and operation of fire and other emergency apparatus or by the undue concentration or assemblage of persons upon such plot.
(j) 
Whether the use or the structures to be used therefor all cause an overcrowding of land or undue concentration of population.
(k) 
Whether the plot area is sufficient, appropriate and adequate for the use and the reasonable anticipated operation and expansion thereof.
(l) 
The physical characteristics and topography of the land.
(m) 
Whether the use to be operated is unreasonably near to a assembly.
B. 
Area variances.
(1) 
To hear and authorize, upon appeal, such variances from the terms of this chapter. In making its determination, the Board of Zoning 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:
(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;
(d) 
Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and
(e) 
Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the Board of Zoning Appeals, but shall not necessarily preclude the granting of the area variance.
(2) 
No nonconforming use of neighboring lands, structures or buildings in the same district and nonpermitted use of lands, structures or buildings in other districts shall be considered grounds for the issuance of a variance.
C. 
Use variances.
(1) 
To hear and authorize, upon appeal, such use variances from the terms of this chapter. No use variance shall be granted by the Board of Zoning 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 application shall demonstrate 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 the 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; and
(d) 
The alleged hardship has not been self-created.

§ 85-58 General severability.

If any clause, sentence, paragraph, section or item of §§ 85-56, 85-57 and 85-58 shall be adjudged by an court of competent jurisdiction to be invalid, such judgment shall not impair nor invalidate the remainder hereof, but such adjudication shall be confined in its operation to the clause, sentence, paragraph, section or item directly involved in the controversy in which such judgment shall have been rendered.

§ 85-59 Duration of special permits, variances and land divisions.

A. 
Every application for a special permit, variance or land division, granted by the Board of Zoning Appeals or other authorized board pursuant to the provisions of this chapter, shall be and become null and void and of no further force or effect, unless:
(1) 
Within 24 months after the date of the grant, determination or decision of the Board of Appeals or other authorized board, a building permit shall have been obtained or the transfer of one of the lots created by a land division has occurred and a deed filed with the Suffolk County Clerk's office such that there is no common ownership of the parcels; or
(2) 
The use so granted shall actually have commenced upon the premises, is duly incorporated in a site plan application pursuant to § 85-113H, or the erection and construction of the building or structure shall be commenced pursuant to a duly issued building permit; or
(3) 
Notwithstanding the provisions of Subsection A(1) and (2), if the applicant for a building permit has otherwise fulfilled all the requirements of the Town of Brookhaven and completed all necessary filings associated with that building permit and the applicant is awaiting a determination from the Town of Brookhaven or another governmental agency in order to obtain a building permit, upon written request by the applicant to the Board of Zoning Appeals, the Board of Zoning Appeals may extend its prior grant, on no more than two occasions, for a period of no more than six months on each occasion.
B. 
All prior unexpired and valid special permits, variances or land division grants with no date of expiration shall be and become null and void and of no further force and effect one year from August 31, 2004, unless:
(1) 
A building permit shall have been obtained or the transfer of one of the lots created by a land division has occurred and a deed filed with the Suffolk County Clerk's office such that there is no common ownership of the parcels.
(2) 
The use so granted shall actually have commenced upon the premises, is duly incorporated in a site plan application pursuant to § 85-113H or the erection and construction of the building or structure shall be commenced pursuant to a duly issued building permit.
(3) 
Notwithstanding the provisions of Subsection B(1) and (2), if the applicant for a building permit has otherwise fulfilled all the requirements of the Town of Brookhaven and completed all necessary filings associated with that building permit and the applicant is awaiting a determination from the Town of Brookhaven or another governmental agency in order to obtain a building permit, upon written request by the applicant to the Board of Zoning Appeals, the Board of Zoning Appeals may extend its prior grant, on no more than two occasions, for a period of no more than six months on each occasion.

§ 85-60 Filing fees.

For each appeal to the Board of Zoning Appeals, the filing fees shall be those set forth in Chapter 29, Fees, of the Code of the Town of Brookhaven.

§ 85-61 through § 85-65. (Reserved)