[Amended 2-12-2002 by L.L. No. 1-2002; 1-14-2003 by L.L. No.
2-2003; 5-27-2003 by L.L. No. 45-2003[1]; 3-22-2005 by L.L. No. 10-2005]
A.
The Board of Appeals, consisting of seven members,
was duly constituted and organized by the Building Zone Ordinance
of the Town of Southampton adopted on October 1, 1957, and the same
shall continue in existence, and the members thereof and their terms
of office shall continue as heretofore established. The method of
appointment, terms of office and tenure of its members shall be as
prescribed by law herein.
[Amended 11-24-2009 by L.L. No. 56-2009]
B.
The Board shall have all the powers and duties prescribed
by law and by this chapter.
C.
The Board shall appoint a Secretary and shall prescribe
rules for the conduct of its affairs.
D.
All meetings of the Board of Appeals shall be open
to the public. A quorum shall consist of four members.
E.
Every decision by the Board shall be by resolution
and shall contain a full record of the findings of the Board in the
particular case.
F.
Any person appointed as a member of the Zoning Board
shall serve for a term of seven 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 Zoning Board, any member
reappointed, or any successor in office, shall serve for a term of
seven 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 seven years.
Any new appointment, reappointment, or appointment to a vacancy shall
not exceed seven years.
In order to re-establish the staggering of appointments and
expiration of terms, Zoning Board of Appeals members shall be appointed
as follows:
(1)
For the positions expiring in December of 2022, in January of
2023:
(a)
One individual shall be appointed for a term of one year, with
said term expiring at the end of said calendar year, that is, December
of 2023;
(b)
One individual shall be appointed for a term of two years, with
said term expiring at the end of the second calendar year, that is,
December of 2024;
(c)
Thereafter, each member, or replacement member, shall be appointed
for a term of seven years.
(2)
For the position expiring in December of 2023, in January of
2024 an individual shall be appointed for a term of two years, with
said term expiring at the end of the second calendar year, that is,
December of 2025. Thereafter, the member, or replacement member, shall
be appointed for a term of seven years.
(3)
For the position expiring in December of 2024, in January of
2025 an individual shall be appointed for a term of two years, with
said term expiring at the end of the second calendar year, that is,
December of 2026. Thereafter, the member, or replacement member, shall
be appointed for a term of seven years.
(4)
For the remaining positions expiring in December of 2025, in
January of 2026:
(a)
One individual shall be appointed for a term of two years, with
said term expiring at the end of the second calendar year, that is,
December of 2027;
(b)
One individual shall be appointed for a term of three years,
with said term expiring at the end of the third calendar year, that
is, December of 2028;
(c)
One individual shall be appointed for a term of four years,
with said term expiring at the end of the fourth calendar year, that
is, December of 2029; and
(d)
Thereafter, each member, or replacement member, shall be appointed
for a term of seven years.
G.
The Town
Board shall designate the Chairperson and Vice Chairperson of the
Zoning Board of Appeals. In the absence of the Chairperson, the Vice
Chairperson shall serve as Chairperson. The designation of Chairperson
and Vice Chairperson may be withdrawn at the pleasure of the Town
Board. The affected member will continue to serve as members unless
removed by cause pursuant to Town Law.
[Amended 5-13-1986 by L.L. No. 7-1986; 12-23-1986 by L.L. No. 21-1986; 4-13-1993 by L.L. No. 10-1993; 10-12-1993 by L.L. No. 34-1993; 2-25-2003 by L.L. No. 15-2003]
A.
Applications for any action by the Board of Appeals
shall be submitted in the form required by the Board and filed in
its office. A digital copy of said application shall be submitted
in a format determined, and changed as needed, by the Town Clerk.
[Amended 3-10-2020 by L.L. No. 2-2020]
B.
Notice of the public hearing or, in the case of a
minor variance, a notice of complete application and a description
of the applicant's proposal shall be transmitted to the Suffolk County
Planning Commission in any case where the land involved in an application
is within 500 feet of:
(1)
The boundary of any other municipality.
(2)
Any state or county park or other recreation area.
(3)
The right-of-way of any federal, state or county parkway,
thruway, expressway or other controlled- or full-access highway.
(4)
The right-of-way of any stream or drainage channel
owned by the county or for which the county has established channel
lines.
(5)
The boundary of any state- or county-owned land on
which a public building or institution is situated.
C.
No action shall be taken on applications referred
to the Suffolk County Planning Commission until the Department's recommendation
has been received or 30 days have elapsed after the Department has
received the full statement on the applicant's proposal.
D.
A record shall be established of all variances granted
pursuant to action of the Board of Appeals under this chapter. Each
case shall be identified by a sequential numbering system and alphabetically
by the applicant's name. Said files shall be available for public
inspection.
E.
The Board shall keep minutes of its proceedings showing
the vote of each member upon every question or, if absent or failing
to vote, indicating such fact. The Board shall keep records of its
examinations and official actions, all of which shall be filed in
the Town Clerk's office and shall be a public record.
F.
Variances granted by the Board of Appeals shall run
with the land and be transferable unless the decision contains an
expiration date imposed as a condition, which is reasonably related
to the relief granted by the Board of Appeals. Any such expiration
date may be extended by the Board of Appeals without a further public
hearing where good cause is shown.
G.
The fees for applications to the Board of Appeals
shall be established, and changed as needed, by resolution of the
Southampton Town Board. A copy of the fee schedule is on file in the
Clerk’s office and the Department of Land Management. Zoning
Board of Appeals application fees are nonrefundable.
[Amended 5-12-2009 by L.L. No. 17-2009]
H.
The Board shall fix a time and place for a public
hearing thereon and shall provide for the giving of notice at least
10 days prior to the date thereof as follows:
(1)
By publishing a notice in the official newspaper.
(2)
By requiring the applicant to erect a white-and-black-lettering
sign or signs measuring not less than two feet long and one foot wide,
which shall be prominently displayed on the premises facing each public
street on which the property abuts, giving notice that an application
for an appeal is pending and the date, time and place where the public
hearing will be held. The sign shall not be set back more than 10
feet from the street line and shall not be less than two nor more
than six feet above the grade at the street line. The sign shall be
made of durable material and shall be furnished by the Board of Appeals.
It shall be displayed for a period of not less than 10 days immediately
preceding the public hearing date. No additional posting shall be
required for any adjournment date. The applicant shall file an affidavit
that he has complied with the provisions of this section.
(3)
If the land involved in an application is within 500
feet of the boundary of any other municipality, notice of the public
hearing shall also be mailed to the Municipal Clerk of such other
municipality.
(4)
By requiring the applicant to mail written notice
of the date, time and place of the hearing, together with a copy of
the application and survey submitted to the Board, by certified mail,
return receipt requested, to every property owner, as shown on the
current Town of Southampton assessment rolls, of parcels abutting
and directly opposite (by extension of lot lines through a street
or right-of-way) of the property which is the subject of the application,
proof of which shall be submitted to the Board of Appeals on or before
the commencement of the public hearing in the form of an affidavit
with postal receipts annexed thereto confirming mailing of said notices
at least 10 days prior to the hearing date.
(5)
If the relief sought is from Article XXX of Chapter 330 of the Code, the applicant, in addition to the other requirements of this section, must mail written notice of the date, time and place of the hearing, together with a copy of the application and survey submitted to the Board, by certified mail, return receipt requested, to the public safety agencies providing the primary fire protection and emergency medical services to the location, proof of which shall be submitted to the Board of Appeals on or before the commencement of the public hearing in the form of an affidavit with postal receipts annexed thereto confirming mailing of said notices at least 45 days prior to the hearing date. The public safety agencies providing the primary fire protection and emergency medical services to the location that is noticed pursuant to this section shall be an interested party to the application and shall have standing to challenge any relief granted.
[Added 7-28-2009 by L.L. No. 32-2009]
I.
The Board of Appeals may, upon request by the applicant
or upon its own motion, waive the requirement for a public hearing
upon an application for a minor variance and, if the hearing is waived,
proceed as follows:
(1)
The Board shall, within 30 days of receipt of a complete
application for a minor variance, fix a time and place for the receipt
of written comments on the application, designated as the "comment
period." The Board shall provide for the giving of notice at least
10 days prior to the end of the comment period as follows:
(a)
By publishing a notice of complete application
in the official newspaper stating the final date and place for the
submission of written comments on the application.
(b)
By requiring the applicant to erect a white
and black lettering sign or signs measuring not less than two feet
long and one foot wide, which shall be prominently displayed on the
premises facing each public street on which the property abuts, giving
notice that an application for a minor variance is pending, the final
date and the place for the submission of public comments. The sign
shall not be set back more than 10 feet from the street line and shall
not be less than two nor more than six feet above the grade at the
street line. The sign shall be made of durable material and shall
be furnished by the Board of Appeals. It shall be displayed for a
period of not less than 10 days immediately preceding the last day
for the submission of public comments. The applicant shall file an
affidavit that he has complied with the provisions of this section.
(c)
If the land involved in an application is within
500 feet of the boundary of any other municipality, a notice of the
application shall also be mailed to the Municipal Clerk of such other
municipality.
(d)
By requiring the applicant to mail a notice
of application which shall indicate the final date and the place for
the submission of comments with a copy of the application and survey
submitted to the Board, by certified mail, return receipt requested,
to every property owner, as shown on the current Town of Southampton
assessment rolls, of parcels abutting and directly opposite (by extension
of lot lines through a street or right-of-way) of the property which
is the subject of the application, proof of which shall be submitted
to the Board of Appeals on or before the expiration of the public
comment period in the form of an affidavit with postal receipts annexed
thereto confirming mailing of said notices at least 10 days prior
to the expiration of the public comment period.
(2)
The Board of Appeals shall review all written comments
received in connection with any notice of application at its next
regularly scheduled meeting following the expiration of the comment
period. If the Board determines, based upon its review of the application
and the comments received in connection therewith, that a substantive
issue has been raised or that it is not prepared to find that the
relief requested should be granted in its entirety based upon the
written record before it, the Board shall schedule the matter for
a public hearing.
(4)
If the Board decides to waive the requirement for
a public hearing, the Board shall proceed forthwith to render a determination
and to notify the applicant of its decision.
[Amended 2-9-1993 by L.L. No. 4-1993; 8-22-2006 by L.L. No.
47-2006]
The Board of Appeals shall, upon appeal, hear
and decide:
A.
Any matter where the applicant alleges that the Building
Inspector, or Public Safety Administrator, where applicable, was in
error in refusing to issue a permit, building permit or certificate
of occupancy or a license for a place of public assembly for the specific
use requested by the applicant therefor as a result of misinterpreting
the meaning, intent or application of any section or part of this
chapter.
B.
Any matter where the appellant alleges that the Building
Inspector was in error in his determination as to the exact location
of a district boundary line on the Zoning Map that forms a part of
this chapter.
C.
Any matter which the Building Inspector appeals on
grounds of doubt as to the meaning or intent of any provision of this
chapter or as to the location of a district boundary line on the Zoning
Map.
A.
The Board of Appeals shall have the power by way of
original jurisdiction and in passing on appeals where there are practical
difficulties or unnecessary hardships in the way of carrying out the
strict letter of this chapter to vary or modify the application of
the regulations or provisions of this chapter.
B.
Guiding principles.
(1)
Every decision by the Board of Appeals granting a
variance shall clearly set forth the nature and extent of such variance.
(2)
Every variance granted by the Board of Appeals may be made subject to such conditions and safeguards as the Board shall deem to be applicable to the particular case. Violations of such conditions or safeguards that are a part of the Board's decision shall be deemed a violation of this chapter punishable under the provisions of § 330-186.
(3)
Any variance granted by the Board of Appeals pursuant
to the provisions of this section shall be construed to be a nonconforming
use.
C.
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. 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:
[Amended 4-24-2001 by L.L. No. 14-2001]
(1)
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.
(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.
In the instances of the following types of variances, the Board of Appeals is hereby specifically empowered to grant the variance pursuant to the guiding principles and the general standards stated in § 330-166B and C and to the provisions which follow.
A.
With respect to lots lying across district boundary
lines, to grant a permit, in appropriate cases where the lot of the
appellant, as such lot existed on the effective date of this chapter,
lies across the boundary of two districts, for the extension into
the more restrictive district but for a distance not exceeding 50
feet measured at right angles to such district boundary line.
B.
With respect to nonconforming uses, buildings, structures
and lots:
(1)
To grant a permit for the extension of such a nonconforming
use on the same lot on which it was located or an increase in the
degree of nonconformity of a nonconforming building or structure on
the lot occupied by such building or structure, provided that:
(a)
In the case of a nonconforming use, such enlargement
or extension shall not exceed, in all, 50% of the floor area of such
building or structure actually devoted to such nonconforming use on
the effective date of this use having first become nonconforming.
[Amended 6-26-2001 by L.L. No. 24-2001]
(c)
There shall be no change in the nature or character
of such nonconforming use or of such building or structure.
(d)
The lot coverage and density shall not be greater
than would be permitted by the most restrictive lot coverage and density
provisions of this chapter applicable to a permitted use or special
exception use of the same nature or character. The term "density"
includes, among other things, the number of dwelling units allowed
based on the lot area, the number of guest units allowed based on
the lot area and the number of uses allowed based on the lot area.
(2)
To grant a permit for the reconstruction, structural
alteration, restoration or repair of a building or structure used
for a nonconforming use, to an extent not to exceed an aggregate 100%
of the gross floor are of such building or structure.[1]
[1]
Editor's Note: Former Subsection B(3), regarding the granting
of certificates of occupancy for a change in use, which immediately
followed this subsection, was repealed 4-13-2021 by L.L. No. 13-2021.
C.
With respect to yard requirements, to grant a variance modifying the yard requirements of a nonconforming lot which qualified under the terms of § 330-115D as to ownership, but where compliance with the dimensional provisions of this chapter is not feasible.
D.
With respect to fences, to grant a permit, in appropriate cases, for a higher fence or wall than the maximum heights stipulated in § 330-109.
E.
With respect to accessory parking and truck loading
spaces:
(1)
To waive, in whole or in part, the requirements of §§ 330-94, 330-95 and 330-96 for off-street parking and truck loading spaces in a case where the Town owns or operates a public parking and/or truck loading area within 500 feet of the lot and where the Board of Appeals determines that there is no need for additional facilities.
(2)
(3)
To permit a reduction in the number of off-street parking spaces and/or truck loading spaces originally required and installed for a particular use pursuant to §§ 330-94, 330-95 and 330-96 in cases where the Board of Appeals determines that, by reason of diminution in number of dwelling units or residents or in floor area, seating capacity or area or number of employees or change in other factors determining the demand for such spaces, the proposed reduction in available spaces will be consistent with the requirements of said sections, and further provided that the area so withdrawn from these uses shall remain in reserve for potential future increases in need.
F.
With respect to temporary building permits, to grant
a temporary building permit for a period not to exceed one year for
a nonconforming building, structure or use incidental to a building
or other construction project, including such uses as the storage
of building supplies and machinery, a real estate office or model
houses located on or near a tract of land where individual properties
are being offered for sale, provided that:
(1)
Such temporary permit shall be issued only upon written
agreement by the owner or his agent to remove such building, structure
or use or to convert it to a conforming use upon the expiration of
the permit.
(2)
Such permit shall be subject to such reasonable conditions
as the Board of Appeals shall determine to be necessary to protect
the public health, safety, morals or general welfare.
G.
With respect to temporary directional signs indicating
the location of a real estate subdivision:
(1)
To grant a permit for the location of a temporary
directional sign off the subdivision site for a period of one year,
provided that:
(a)
Such temporary permit shall be issued only upon
written agreement by the owner or his agent to remove such temporary
directional sign upon the expiration of the permit.
(b)
Such permit shall be subject to such reasonable
conditions as the Board of Appeals shall determine to be necessary
to protect the public health, safety, morals or general welfare.
(c)
Only the minimum number of such signs is permitted,
consistent with their purpose.
(2)
Such permit may be renewed annually, at the direction
of the Board of Appeals, for not more than two additional years.
H.
[2]With respect to the addition of a second dwelling on a
lot, the Zoning Board of Appeals shall find that the landowner has
exhausted all possible opportunities to acquire and transfer development
rights or PBCs pursuant to the applicable provisions of this chapter.
[Added 10-23-2001 by L.L. No. 44-2001]
I.
With respect to the creation of undersized lots, the
Zoning Board of Appeals shall find that the landowner has exhausted
all possible opportunities to acquire and transfer development rights
or PBCs pursuant to the applicable provisions of this chapter. However,
the following are exempt from this provision:
[Added 10-23-2001 by L.L. No. 44-2001]
(1)
Undersized lots requesting minor lot area and lot
width variances (20% and less).
(2)
Nonconforming lots shown on a filed map approved by
the Planning Board after October 14, 1957, and filed in the office
of the Suffolk County Clerk or the Town Clerk, but not held in single
and separate ownership.
J.
With respect to threatened historic and cultural landmarks:
[Added 10-28-2014 by L.L. No. 25-2014]
(1)
To grant a special use permit for such use or uses compatible
with an intent to preserve, protect, restore or promote the historic
or cultural integrity of a district, site, building, structure or
object that meets the definition, herein, of a historic district or
landmark, as determined by the Landmarks and Historic District Board,
and which is being threatened by new development, alteration or replacement
and such relief from parking and other requirements of this chapter
as is appropriate, provided that the Board of Appeals determines that:
(a)
A threat exists to the continuance of the historic district
or landmark as a historic or cultural Town resource.
(b)
Such permit is in the best interest of the Town and not contrary
to the visions, goals and directives expressed in the Town's Comprehensive
Plan.
(c)
Such permit is needed to support the continued integrity of
the historic district or landmark.
(d)
Such permit is for a use that is reasonable as it may relate
to existing zoning district provisions, provided that the proposed
use is compatible with surrounding land uses.
(2)
Prior to submission of an application to the Zoning Board of Appeals, a site plan for the proposed use or uses shall be submitted to the Landmarks and Historic District Board (LHDB), together with the necessary application and documentation required by the LHDB to make findings, recommendations and comments with respect to whether or not the subject district, site, building, structure or object meets the definition of "landmark" in § 330-5 and/or the criteria for landmark or historic district designation pursuant to § 330-321B(1) and (2).
(4)
Such special use permit shall be conditioned on the following:
(a)
The district, site, building, structure or object shall be designated by the Town Board as an historic district or landmark in accordance with Article XXVIII of the Zoning Code of the Town of Southampton.
(b)
A written agreement by the applicant to remove such use or uses
or to convert the same to a conforming use upon the termination of
the actual landmark itself, its removal from the property, its destruction
by natural or other means, or declassification of the historic district
or landmark.
(c)
Any such conditions and safeguards as the Board of Appeals shall
deem necessary or advisable.
[Added 9-22-1998 by L.L. No. 31-1998]
Any violation of the approval or conditions, including specific covenants or easements, established by the Board of Appeals with respect to a specific variance or other application for relief shall be deemed a violation of this chapter punishable under the provisions of § 330-186.
