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