[Amended 10-16-2006 by L.L. No. 10-2006]
The Board of Appeals shall consist of five members. Their successors shall be appointed in accordance with the provisions of Village Law. The Village Board shall designate the Chairman from among the Board's membership.
Alternate members. The Village Board may appoint not more than two alternate members of the Board of Appeals. Each such alternate member shall attend meetings of the Board of Appeals and participate in its deliberations but shall vote only in the event that a member of the Board of Appeals is absent, otherwise unable to act with respect to a particular matter or is unable to participate because of a conflict of interest (Village Law § 7-712, Subdivision 11). When acting pursuant to the Board of Appeals authority provided hereby, such alternate member shall have all of the rights and privileges of a member of the Board of Appeals. The term of appointment of said alternates shall be as authorized by the Village Board under a duly adopted resolution. This section is adopted pursuant to the authority granted by § 10, Subdivision 1(ii)e(3), of the Municipal Home Rule Law and shall supersede any provision of the Village Law which is inconsistent herewith as well as Village Law § 7-712, Subdivision 11.
[Amended 11-22-2010 by L.L. No. 12-2010]
The Board of Appeals shall have all the powers and duties prescribed by statute 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.
Appeals. The Board of Appeals shall hear and decide appeals from and review any order, requirement, decision or determination of the Codes Official or such other official charged with enforcement of this chapter.
Interpretation. On an appeal from an order, requirement, decision, or determination made by an administrative official or by the Codes Official, the Board of Appeals may decide any of the following questions:
Variances. On appeal from an order, requirement, decision or determination made by the Codes Official, or on referral of an applicant to the Board by an approving agency acting pursuant to this chapter, the Board of Appeals is authorized, after public notice and hearing, to vary or modify the strict letter of this chapter where its literal interpretation would cause practical difficulties or unnecessary hardships, as defined in this section, in such manner as to observe the spirit of the law, secure public safety and welfare, and do substantial justice.
State statute authorizes the Zoning Board of Appeals (ZBA) to hear and decide upon applications for area variances. An area variance is defined as the authorization by the ZBA for the use of land in a manner which is not allowed by dimensional or physical requirements of the applicable zoning regulations. State statute sets forth the test to be applied when reviewing an application for an area variance.
In making its determination, the ZBA 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:
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;
Whether the benefit sought by the applicant can be achieved by some method feasible for the applicant to pursue, other than an area variance;
Whether the requested area variance is substantial;
Whether the proposed variance will have an adverse effect or impact on the physical or environmental condition in the neighborhood or district; and
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 ZBA, 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.
Use variances. 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:
The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;
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;
That the requested use variance, if granted, will not alter the essential character of the neighborhood; and
That the alleged hardship has not been self-created.
The ZBA, 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.
Extensions across district boundaries. In appropriate cases where a lot lies within two districts, the Board of Appeals may permit the extension of existing or proposed permitted accessory off-street parking space across a district boundary under such conditions as will safeguard the character of the district into which such use is extended. However, no such extension shall exceed 75 feet, measured at right angles to such district boundary. The power under this subsection shall not permit the moving of the zoning district line but only the extension of the accessory off-street parking space.
In addition to such powers as may be conferred on it by statute, the Board of Appeals shall have the power, on application and after public notice and hearing, to issue special use permits for any of the uses so specified in §§ 300-10 through 300-15. In issuing such special use permits, the Board shall take into consideration the public health, safety and welfare, the comfort and convenience of the public in general and of the residents of the immediate neighborhood in particular, as well as the conditions and standards set forth in §§ 300-16 and 300-17.1 and may prescribe such appropriate conditions and safeguards as may be required in order that the result of its action shall, to the maximum extent possible, further the expressed intent of this chapter. On an application for a special use permit, an application may be made to the Board of Appeals for an area variance without the necessity of a decision or determination by the Zoning Enforcement Officer.
[Amended 1-18-2018 by L.L. No. 1-2018]
An applicant for a special permit shall simultaneously with the filing of an application with the Board of Appeals file an application for site development plan approval, if such is required under § 300-41, with the Planning Board, together with appropriate plans, drawings and fee for site development plan review, indicating the extent of any variance required, if any. Thereafter, and before the Board of Appeals shall give any consideration to or review the application for such permit, the Planning Board shall review the application for the purpose of preliminary site development plan review and in light of the general considerations herein and specific standards herein for special permits. The Planning Board shall transmit its recommendations as to the application for a special permit to the Board of Appeals within 30 days of receipt of the application for site development plan approval.
The Board of Appeals, upon receipt of the report of the Planning Board, shall, within 60 days, conduct a public hearing and, within 62 days thereafter, render its decision, unless the applicant waives the time requirements of this section. Upon approval of the special permit by the Board of Appeals, the decision shall be filed in the office of the Village Clerk and a copy thereof mailed to the applicant. Thereafter, the applicant will proceed with site development plan approval before the Planning Board (Article VIII).
Any use for which a special permit may be granted shall be deemed to be a conforming use in the district in which such use is located, provided that such permit shall affect only the lot or portion thereof for which such permit shall have been granted.
The Board of Appeals may require that special permits be periodically renewed. Such renewal shall be granted or denied following due public notice and hearing.
When a use allowed under special permit is discontinued or abandoned for a period of one year, the special permit shall expire.
[Added 4-21-2003 by L.L. No. 4-2003]
The Board of Appeals, after a public hearing, shall have the power to direct the Codes Official to issue a building permit, certificate of occupancy, or certificate of use, as the case may be, subject to other applicable laws, codes, rules and regulations.
The Board of Appeals may adopt rules and regulations with respect to procedure before it and with respect to any subject matter over which it has jurisdiction. Such regulations shall include provisions for conduct of meetings, notification of parties, form of applications, and filing of decisions.
Every decision of the Board of Appeals shall be recorded in accordance with a standard format adopted by such Board, shall fully set forth the circumstances of the case and shall contain a 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 offices of the Village Clerk and Codes Official by case number.
All appeals and applications made to the Board of Appeals shall be in writing and shall be accompanied by a fee as determined in the Standard Schedule of Fees, as may be adopted from time to time by resolution of the Village Board.
Editor's Note: Current fees are on file in the office of the Village Clerk.
Any person aggrieved by any decision of the Board of Appeals hereunder may, within 30 days of the filing of the decision with the office of the Village Clerk, seek judicial review pursuant to Article 78 of the Civil Practice Law and Rules.