There shall be a Board of Appeals consisting of five members
pursuant to the provisions of § 7-712 of the Village Law.
The Board of Trustees may appoint up to two additional ad hoc members
to serve where a member is absent or has a conflict of interest. The
term of an ad hoc member shall be one year. All members, including
ad hoc members, shall be required to satisfy on a timely basis the
training and continuing education requirements described in § 7-712
of the Village Law.
A.
The Board shall have all the powers and duties prescribed by law
and by this chapter.
B.
All meetings of the Board of Appeals shall be open to the public.
A quorum shall consist of three members.
C.
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.
A.
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 nonrefundable application fee. A fee schedule shall be established
and changed as needed by resolution of the Board of Trustees. A copy
of the fee schedule is on file with the Village Clerk and the Building
Department.
B.
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 chapter 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.
C.
The Board of Appeals shall not decide any appeal for a variance or
interpretation of this chapter without first holding a public hearing,
notice of which hearing and of the substance of the appeal or application
shall be given by publication in the official newspaper of the Village
at least 10 days before the date of such hearing.
D.
In addition to such published notice, notice of the hearing shall
be provided as follows:
(1)
The applicant shall mail a copy of the public notice of the
hearing by certified mail, return receipt requested, at least 10 days
prior to the date of the hearing, to all owners of property which
lies adjacent to that owned by the applicant as determined by their
appearance on the last completed assessment roll of the Village and
any other owners as the Board of Appeals may deem appropriate, and
shall file proof of that mailing with the Secretary to the Zoning
Board of Appeals not less than five days prior to the date of the
hearing.
(2)
If the land involved in an application for a use variance is
within 500 feet of the boundary of any other municipality, notice
of the public hearing shall also be mailed or sent by electronic transmission
by the Secretary to the clerk of such other municipality not less
than 10 days prior to the date of the hearing.
(3)
The applicant shall erect or cause to be erected a white and
black lettered sign facing each public street on which the property
abuts, giving notice that an application for an appeal is pending.
Such notice shall be provided by the Village. The applicant or their
agent shall mount the sign on one-half-inch plywood or a substantially
similar mounting and erect the sign in a prominent position on the
subject street not more than 10 feet from the street line. The applicant
shall provide an affidavit to the Village attesting to the erection
of the sign or signs in compliance with this section.
[Added 9-9-2014 by L.L. No. 12-2014]
E.
Notice of the public hearing and a description of the application
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 existing or proposed state or county park or other recreation
area.
(3)
The right-of-way of any existing or proposed state or county
parkway, thruway, expressway, road or highway.
(4)
The existing or proposed right-of-way of any stream or drainage
channel owned by the county or for which the county has established
channel lines.
(5)
The existing or proposed boundary of any state- or county-owned
land on which a public building or institution is situated.
F.
No action shall be taken on applications referred to the Suffolk
County Planning Commission until the Commission's recommendation has
been received or 45 days have elapsed after the Commission has received
the full statement on the applicant's proposal.
H.
Building permits or certificates of occupancy authorized by Board
of Appeals actions on variance applications shall be obtained within
one year of its decision. Extensions of this period may be granted
by the Board of Appeals without a further public hearing where good
cause is shown.
I.
All variance applications shall be reviewed by the Building Inspector
prior to submission to the Board of Appeals. The Building Inspector
is authorized to require any documentation he or she deems necessary
to make a determination as to the number and types of variances required
for the application.
[Added 9-9-2014 by L.L. No. 12-2014]
The Board of Appeals shall, upon appeal, hear and decide:
A.
Any matter where the applicant alleges that the Building Inspector
was in error in making any order or determination under this chapter
or in refusing to issue a building permit or certificate of occupancy
as a result of misinterpreting the meaning, intent or application
of any section or part of this chapter.
B.
Any matter where the applicant 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.
The Board of Appeals shall have the power to authorize, upon
appeal in specific cases, a variance from the terms of this chapter,
as follows:
A.
Use variances. The Board of Appeals shall have the authority to approve
the use of land for a purpose which is otherwise not allowed or is
prohibited by this chapter. No such use variance shall be granted
by the 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)
That 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)
That the requested use variance, if granted, will not alter
the essential character of the neighborhood; and
(4)
That the alleged hardship has not been self-created.
B.
Area variances. The Board of Appeals shall have the authority to
grant area variances for the use of land in a manner which is not
allowed by the dimensional or physical requirements of this chapter.
In making its determination, 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. In making such determination,
the Board of Appeals shall also consider:
(1)
Whether the grant of the variance will cause an undesirable
change in the character of the neighborhood or will create a detriment
to nearby properties;
(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 grant of the variance will have an adverse effect
or impact on the physical or environmental conditions in the neighborhood
or district; and
(5)
Whether the alleged difficulty was self-created, which consideration
shall be relevant to the determination of the Board of Appeals but
shall not necessarily preclude the grant of the area variance.
C.
Minimum variance. In granting an area variance, the Board of Appeals
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.
D.
Conditions. 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 this chapter and shall be imposed for
the purpose of minimizing any adverse impact such variance may have
on the neighborhood or community.
In all instances of the following types of variances, the Board of Appeals is hereby specifically empowered to grant the variance pursuant to the respective applicable guiding principles and the standards stated in § 300-12.5 and to the provisions which follow:
A.
With respect to lots lying across district boundary lines, to grant
approval in appropriate cases where the lot of the applicant 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 a nonconforming building or structure on the lot occupied
by such building or structure, provided that:
[Amended 1-11-2022 by L.L. No. 3-2022]
(a)
In the case of a nonconforming use, such enlargement or extension
shall not exceed, in all, 50% of the gross floor area of such building
or structure actually devoted to such nonconforming use on the effective
date of this use having first become nonconforming. In the case of
a nonconforming building or structure, such enlargement or extension
shall not exceed, in all, 50% of the gross floor area of such building
or structure existing on the effective date of this building or structure
having become nonconforming.
(c)
There shall be no change in the nature or character of such
nonconforming use or such building or structure.
(d)
The lot coverage and density shall not be greater than would
have been permitted by the most restrictive lot coverage and density
provisions in the district applicable to a permitted use or special
exception use of the same character. The term density includes, among
other things, the number of dwelling units allowed based on lot area,
and the number of uses allowed based on the lot area.
(3)
To grant approval for a change in a nonconforming use, provided
that:
(a)
The Board of Appeals shall have made a determination that such
change will be beneficial to the general neighborhood. Any such determination
shall require that the Board affirmatively find: (i) the change of
use will not be the introduction of an undesirable use in the neighborhood;
(ii) the owner is without any reasonable alternative; (iii) the owner's
hardship is unique; (iv) the change of use will not cause or result
in detriment of any kind to nearby properties; (v) the owner's difficulty
is not self-created; (vi) the grant of any change of use will not
adversely change the existing character of the area; and (vii) the
new use will not be an intensification of use.
(b)
Such change is made subject to such reasonable conditions and
safeguards as the Board of Appeals may stipulate.
(c)
In no event shall the Board of Appeals approve any application
to change a nonconforming use to a cabaret, disco, nightclub or superstore.
(d)
Any application under this subsection shall require that the notice of the hearing be provided by the applicant as required under § 300-12.3D(1), except said notice shall be given to all owners within a five-hundred-foot radius.
C.
With respect to yard requirements, to grant a variance modifying the yard requirements of a nonconforming lot which qualified under the terms of § 300-10.3 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 § 300-9.4.
E.
With respect to accessory parking and truck-loading spaces:
(1)
To waive, in whole or in part, the requirements of § 300-9.6 for off-street parking and truck-loading spaces pursuant to the standards for the grant of area variances contained in this chapter.
(2)
Every decision of the Board of Appeals which grants a variance waiving, varying or modifying the requirements of § 300-9.6 for off-street parking and/or truck-loading spaces, in whole or in part, shall:
(a)
Clearly set forth the nature and extent of such variance by
specifying the number of spaces required, the number of spaces to
be required by the Board of Appeals, and the number of spaces thus
waived by the Board of Appeals. The number of spaces so waived by
the Board of Appeals shall constitute the number of spaces for which
a variance is granted; and
(b)
Be preceded by the Board of Appeals' referral to the Planning
Board and review of a report by the Planning Board considering all
planning aspects of the variance application.
(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 § 300-9.6 and 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 the provisions of Article XVI, Tidal Flood Hazard Overlay District:
(1)
To grant variances consistent with the standards of Section
60.6 of the Rules and Regulations of the National Flood Insurance
Program and the further guiding principles and standards which follow
in this subsection.
(2)
In passing on such applications for variances, the Board of Appeals shall consider all technical evaluations, relevant factors and standards specified in Article XVI and the following:
(a)
The danger that materials may be swept onto other lands to the
injury of others.
(b)
The danger of life and property due to flooding or erosion damage.
(c)
The susceptibility of the proposed facility and its contents
to flood damage and the effect of such damage on the individual owner.
(d)
The importance of the services provided by the proposed facility
to the community.
(e)
The necessity to the facility of a waterfront location, where
applicable.
(f)
The availability of alternative locations for the proposed use
which are not subject to flooding or erosion damage.
(g)
The compatibility of the proposed use with existing and anticipated
development.
(h)
The relationship of the proposed use to the Comprehensive Plan
and floodplain management program of that area.
(i)
The safety of access to the property in times of flood for ordinary
and emergency vehicles.
(j)
The expected heights, velocity, duration, rate of rise and sediment
transport of the floodwaters and the effects of wave action, if applicable,
expected at the site.
(k)
The costs of providing government services during and after
flood conditions, including maintenance and repair of public utilities
and facilities, such as sewer, gas, electrical and water systems,
and streets and bridges.
(3)
Generally, variances may be issued for new construction and substantial improvements to be erected on a legally preexisting nonconforming lot of 1/2 acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, provided that the items in § 300-12.6F(2)(a) through (k) have been fully considered. As the lot size increases beyond the 1/2 acre, the technical justification required for issuing the permit increases.
(5)
Variances shall only be issued on a determination that the variance
is the minimum necessary, considering the flood hazard, to afford
relief.
(6)
Variances shall only be issued upon a determination that the granting of a variance will not result in increased flood heights, additional threats to public safety or extraordinary public expense, create nuisances, cause fraud on or victimization of the public as identified in § 300-12.6F(2) or conflict with existing local laws or ordinances.
(7)
Any applicant to whom a variance is granted shall be given written
notice that the structure will be permitted to be built with the lowest
floor elevation below the base flood elevation and that the cost of
flood insurance will be commensurate with the increased risk resulting
from the reduced lowest floor elevation.
