Village of Port Jefferson, NY Article XI Board of Appeals

[Amended 10-5-2009 by L.L. No. 12-2009]

§ 250-48 Establishment.

A. There shall be a Board of Appeals of five members pursuant to the provisions of § 7-712 of the Village Law.

B. Up to two alternate members of the Board of Appeals shall be appointed by the Mayor, such appointments to be subject to the consent of the Board of Trustees, for a term of one year.

C. The Chairperson of the Board of Appeals may designate an alternate to substitute for a member when such member is unable to participate on an application or a matter before the Board. When so designated, the alternate member shall possess all the powers and responsibility of such member of the Board. Such designation shall be entered into the minutes of the initial Board of Appeals meeting at which the substitution is made.

D. All provisions of state law relating to the Board of Appeals member eligibility, vacancy in office, removal, compatibility of office and service on other boards, as well as any other provisions of the local law/local ordinance relating to training, continuing education, compensation and attendance, shall also apply to alternate members.

§ 250-49 Powers and duties.

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 of chapter. On appeal from an order, requirement, decision or determination made by an administrative official, or on request by any official, board or agency of the Village, 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. In the event that any provision of this chapter when read in context with the entire chapter, is ambiguous or inconsistent with any other equally restricted statute, local ordinance or regulation, the Board of Appeals shall make any interpretation necessary to clarify any such provisions. In making any such interpretation, the Board of Appeals shall endeavor to preserve the purposes of the enactment of this chapter and such statute, local ordinance or regulation.

(2) Determination of the exact location of any district boundary shown on the Zoning Map.

B. Variances.

(1) To grant, upon appeal in specific cases or as authorized by Village Law § 7-725-a, Subdivision 3, and as that latter section may be amended from time to time, such variance from the terms of this chapter as will not be contrary to the public interest, subject to terms and conditions to be fixed by the Board of Appeals; provided, however, that no such variance shall be granted except upon the following basis:

[Amended 8-4-1997 by L.L. No. 6-1997]

(a) Where a use variance is sought or required, a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship.

[1] 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 that:

[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] That 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.

[2] The 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 proved 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.

(b) In making its determination as to whether an area variance shall be granted, the 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.

[1] 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 Appeals but shall not necessarily preclude the granting of the area variance. The 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.

(c) The 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 and incidental to the proposed use of the property. Such conditions shall be consistent with the spirit and intent of the zoning local law and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.

(2) Where said Board 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 said Board finds the same condition to apply generally to other land or buildings in the same neighborhood or zoning district, the said Board shall call this condition to the attention of the Planning Board and the Board of Trustees.

(3) In all cases where the Board of Appeals grants a variance from the strict application of the requirements of this chapter, it shall be the duty of such Board to attach conditions and safeguards as may be required in order that the result of its actions may be as nearly as possible in accordance with the spirit and intent of this chapter.

C. Temporary certificate of occupancy.

(1) To authorize, upon denial by the Building Inspector of a temporary certificate of occupancy and upon application to the Board of Appeals, the issuance of a temporary certificate of occupancy for a period of 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:

(a) The denial of a certificate of occupancy prior to completion of 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 Village respective to the use or occupancy of the land or building or any other matter covered by this chapter.

D. Determination of nonconforming uses.

(1) The Board of Appeals shall have the further power, on application made therefor, to hear and determine whether a nonconforming use claimed and described in the application exists and, if so, the nature, location and extent thereof. Such power shall include hearing and determining whether an application for a certificate of existing use for any building, land or the use thereof should be granted. If such application for a certificate of existing use is granted, the Board of Appeals shall so advise the Building Inspector, who shall issue the same upon such procedures and the payment of fees as are contained in this chapter.

[Amended 1-5-2004 by L.L. No. 1-2004]

(2) Prior to making any such determination, the Board shall fix a reasonable time for a hearing in the matter and shall give due notice thereof to the Board of Trustees, to the Planning Board and to the applicant, all of whom have the full opportunity to be heard and to present any evidence to the Board of Appeals bearing on the issues of the location, existence, nature and extent of any claimed nonconforming use.

(3) All applications shall fully describe the location, nature and extent of the nonconforming use claimed. The hearing shall be conducted in accordance with any general rules of procedure established by the Board of Appeals, and all applications shall conform to forms prescribed by said Board as to notifying adjoining and adjacent property owners and other matters.

(4) By a concurring vote of the majority, the Board of Appeals shall make a determination, in writing, within a reasonable time after the hearing as to whether the nonconforming use claimed exists and, if so, describing its nature, extent and location.

E. For a period of six consecutive months from the effective date of this Subsection E, no application will be accepted, considered or processed by the Board of Appeals in connection with any property located in the M-W, I-2 or P-O Zone. The purpose of this six-month moratorium is to allow the Board of Trustees to consider proposed amendments to this chapter setting forth parking requirements for property within these zones.[1]

[Added 4-27-1998 by L.L. No. 5-1998; amended 9-14-1998 by L.L. No. 10-1998]

[1] Editor's Note: Former Subsection F, regarding alternatives to on-site parking, added 5-7-2001 by L.L. No. 8-2001, as amended, which immediately followed this subsection, was repealed 7-24-2006 by L.L. No. 5-2006.

§ 250-50 Procedure.

[Amended 9-29-1982 by L.L. No. 4-1982; 11-5-1986 by L.L. No. 8-1986; 7-8-1996 by L.L. No. 11-1996; 8-4-1997 by L.L. No. 6-1997]

The powers and duties of the Board of Appeals shall be exercised in accordance with the following procedure in addition to the provisions of Village Law § 7-725-a, Subdivision 3, and as that latter section may be amended from time to time:

A. If, in the opinion of the Building Inspector, any plan and/or application submitted does not comply with the provisions of this chapter, he shall return to the applicant one copy of the plans with his written disapproval.

B. Within 60 days after the date of the written disapproval by the Building Inspector of any such plan and/or application, the applicant may appeal to the Board of Appeals from such ruling by serving upon the Village Clerk or Clerk of the Zoning Board of Appeals, in triplicate, a written notice of appeal addressed to the Building Inspector and to the Board of Appeals, of the taking of such appeal from such decision, specifying the grounds of the appeal. Such service upon the Village Clerk shall be deemed proper service upon the Building Inspector and upon the Board of Appeals. The Village Clerk shall immediately forward to the Building Inspector, the Planning Board and the Board of Appeals said notices of appeal. The Village Clerk shall also forward to the Board of Appeals all papers constituting the record upon which the action appealed from was taken.

[Amended 11-1-2010 by L.L. No. 7-2010]

C. Public hearing; notification; posters.

(1) The Board of Appeals shall not decide upon any appeal from a variance or interpretation of an ordinance or application for a certificate of existing use without first holding a public hearing. At least 10 days prior to such meeting, the applicant or appellant shall notify all property owners within 200 feet of the subject property, by certified mail, return receipt requested. The names of adjacent property owners shall be taken as they appear on the latest completed tax roll of the Village. At or before the hearing, the applicant or appellant shall submit to the Board the certified mail receipts.

[Amended 1-5-2004 by L.L. No. 1-2004]

(2) Posters required.

[Added 3-23-1998 by L.L. No. 2-1998; amended 9-22-2003 by L.L. No. 11-2003]

(a) Posters, not more than 200 feet apart along the street line of the property which is the subject of the application, not less than 24 inches by 36 inches in size, must be conspicuously posted along the entire length of each street frontage of the property which is the subject of the appeal at least 10 days prior to the date set for the public hearing before the Board of Appeals. Such poster shall contain the following information:

[Amended 12-21-2009 by L.L. No. 17-2009]

[1] The current zoning and the nature of the appeal to the Board of Appeals.

[2] That a public hearing will be held before the Board of Appeals at a specified date, time and place with regard to the proposed appeal.

(b) The applicant shall be required to file an affidavit of posting with the Secretary or Clerk of the body before whom the public hearing shall be held not later than the date specified for the public hearing.

(c) The applicant shall pay a fee as set forth in the Table of Fees[1] for each poster required to be displayed pursuant to this section in connection with any application.

[Amended 12-21-2009 by L.L. No. 17-2009; 11-15-2010 by L.L. No. 10-2010]

[1] Editor's Note: The Table of Fees is included as an attachment to this chapter.

D. All appeals and applications made to the Board of Appeals shall be in writing, on forms prescribed by said Board, and shall be accompanied by a fee.[2] The Board of Appeals may, at its discretion, return to the applicant part or all of the fee paid by him in the event that his appeal under § 250-49A, Interpretation of chapter, is partially or wholly successful. The fee filed in connection with applications under § 250-49B, Variances, shall not be returnable regardless of disposition of the case by the Board.

[2] Editor's Note: Said fee is located in the Table of Fees included as an attachment to this chapter.

E. Each appeal or application shall fully set forth the circumstances of the case. Every appeal or application 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.

F. Should any appeal involve either of the following conditions, the Clerk 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 five days prior to the date of the hearing:

(1) Any change in the regulations prescribed for any district, any portion of which is located within 500 feet of the boundaries of any Village or town.

(2) In the case of any change involving any of the areas specified in Article XIII, § 250-53B(5), then prior to final action by the Board of Appeals, the matter shall be referred to the Suffolk County Planning Commission in accordance with § 239-m of Article 12-B of the General Municipal Law.

G. Upon receipt of an application and/or appeal, the Clerk of the Board of Appeals shall transmit to the Secretary of the Planning Board a notice of any appeal or application. 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.

H. Every decision of the Board of Appeals shall be recorded in accordance with standard forms adopted by the Board and 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 said Board shall be by resolution, and each such resolution shall be filed in the office of the Village Clerk by case number, under one of the following headings: Interpretation, Variances, or Determination of Nonconforming Uses, together with all documents pertaining thereto. Regarding its decision in each case, the Board of Appeals shall notify the Building Inspector, Village Board, Village Planning Board, and the Village Clerk of any affected municipality given notice of hearing as set forth in Subsection F. The decision of the Zoning Board of Appeals shall be considered filed on the date of receipt by the Village Clerk.

I. All provisions of this chapter relating to the Board of Appeals shall be strictly construed. Said Board, as a body of jurisdiction, shall act in full conformity with all provisions of law and of this chapter and in strict compliance with all limitations contained therein.

J. Unless construction is commenced and diligently pursued within 24 months of the date of the granting of a variance, such variance shall become null and void. The Board of Appeals may, upon written application and payment of required fees, made before the date of such expiration, and after public hearing, extend the time for such commencement and diligent pursuit to an additional period not to exceed 12 months. No more than one such extension shall be given. In considering an application for an extension, the Board of Appeals shall consider all relevant factors, including any change of circumstances that may have occurred since the granting of the variance. The Board of Appeals may, upon written application and payment of required fees, made before the date of expiration of a previously granted nine month extension under the prior code, and after public hearing and showing of good cause, extend the time for such commencement and diligent pursuit for an additional period not to exceed 12 months. No more than one such extension shall be given.

[Amended 8-8-2013 by L.L. No. 11-2013]