Village of Nyack, NY Article I General Provisions

This article provides general provisions related to the administration of the Zoning Chapter applicable to all properties in the Village of Nyack.

§ 360-1.1 Title.

This chapter is officially known, cited and referred to as the "Local Zoning and Planning Law of the Village of Nyack, New York." It is referred to throughout this document as the "Zoning Chapter" and "this chapter."

§ 360-1.2 Authority.

This chapter is a local law establishing zoning and planning regulations for the Village of Nyack and providing for the administration and enactment of those regulations, pursuant to § 7-700 of the Village Law of the State of New York, as amended. This chapter has been adopted and enacted by the Village Board of Trustees of the Village of Nyack, by virtue of the power and authority vested in it by law.

§ 360-1.3 Applicability.

The regulations of this chapter apply to all development, public or private, within the limits of the Village of Nyack, unless otherwise expressly exempted or provided in this chapter.

§ 360-1.4 Purpose and intent.

This Village of Nyack has adopted this chapter for the purposes set forth in § 7-700 of the Village Law of the State of New York, which, in the interest of the protection and promotion of the public health, safety and welfare, shall be deemed to specifically include the following, among others:

A. Implement adopted plans, including the Comprehensive Master Plan of the Village of Nyack (CMP).

B. Promote and enhance the downtown, including the historic scale and character and mix of uses.

C. Enhance walkability throughout the Village, including connections between downtown, the waterfront and surrounding neighborhoods.

D. Enhance uses and the walkability of the Corridor Commercial District and adjacent areas, including redevelopment that addresses design and safety concerns.

E. Enhance the waterfront by protecting views, improving connections, and providing additional waterfront parks and access opportunities.

F. Protect the character of established residential neighborhoods and ensure privacy for families.

G. Maintain and promote economically vibrant and attractive business and commercial areas; facilitate the efficient and adequate provision of public facilities and services through orderly and compatible land use and development patterns.

H. Prevent and reduce traffic congestion and provide safe and adequate traffic access to uses generating large volumes of vehicles.

I. Gradually eliminate nonconforming uses and limit their enlargement.

J. Preserve historic and natural features that contribute to the economic strength of the Village and provide for the review of new development to encourage quality design that reflects and enhances the historic Village.

K. Encourage development that accommodates solar energy systems, access to sunlight and sustainable development techniques and materials.

L. Ensure that the Village remains a place where a wide variety of residents can find and maintain a home.

M. Provide clear and efficient development review and approval procedures.

N. Provide privacy for families.

O. Accommodate growth and development that complies with the preceding stated purposes.

§ 360-1.5 Minimum requirements.

In their interpretation and application, the provisions of this chapter shall be held to be the minimum requirements adopted for the promotion of the public health, safety, comfort, convenience and general welfare. Site characteristics and constraints along with the implementation of the standards of this chapter may preclude the development of a specific site to the maximum density or bulk otherwise permitted by the Zoning Chapter.

§ 360-1.6 Rules of construction.

A. Common meaning. The words in this chapter shall be construed in accordance with their common meaning unless their context expressly indicates another meaning or unless they are otherwise defined in Article VI of this chapter. Words that are not defined in Article VI have the meaning given in the latest edition of Merriam Webster's Collegiate Dictionary.

B. Headings, illustrations and captions. Headings, illustrations and captions are provided for convenience and reference only and do not define or limit the scope of any provision of this chapter.

C. Numbering. Text within this chapter is divided into articles, sections, subsections, paragraphs, subparagraphs, and so on. The first numerals in a section number correspond to the chapter of the Village Code in which the section is located — Chapter 360 in the case of this chapter. The article number is found immediately following the dash in the section number. The numerals following the article number identify the section number. Thus, "§ 360-1.5" identifies the fifth section of Article I of Chapter 360. Subsequent subsections, paragraphs, subparagraphs, etc., are identified with consecutive letters or numbers on a separate line.

D. Delegation of authority. Whenever a provision appears requiring the head of a department or another officer or employee of the Village to perform an act or duty, that provision shall be construed as authorizing the department head or officer to delegate that responsibility to others over whom they have authority, unless such delegation of authority is expressly prohibited by the provisions of this chapter.

E. Specific rules of construction. The following rules of construction apply to the text of this chapter:

(1) Words used in the present tense include the future.

(2) The singular number includes the plural, and the plural number includes the singular.

(3) The word "person" includes individuals and organizations, including corporations, firms, partnerships, associations and joint ventures, and combinations of one or more types of organizations, as well as any individual acting on their behalf.

(4) The words "occupied" or "used" as applied to any land or building shall be construed as though followed by the words "or intended, arranged or designed to be occupied or used."

(5) The particular shall control the general.

(6) The words "shall," "must," "will" and "may not" are mandatory.

(7) The word "may" is permissive. The word "should" is advisory but is not mandatory or required.

(8) The word "building" includes "structure"; the word "structure" includes "building"; a "building" or "structure" includes any part thereof.

(9) The word "premises" shall include land and the buildings thereon.

(10) The word "lot" includes the words "plot" and "parcel."

(11) Unless the context clearly indicates otherwise, where a regulation involves two or more items or provisions connected by a conjunction, the conjunction shall be interpreted as follows:

(a) "And" indicates that all connected items or provisions apply.

(b) "Or" indicates that the connected items or provisions may apply singularly or in combination.

(c) "Either. . .or" indicates that the connected items or provisions shall apply singly but not in combination.

(12) The word "includes" shall not limit a term to the specified examples but is intended to extend its meaning to all other instances or circumstances of like kind or character.

(13) Unless the context clearly indicates otherwise, all distances in this chapter shall be measured horizontally.

F. Fractions.

(1) Minimum requirements. Except as otherwise expressly provided in the Code, when a regulation is expressed in terms of a minimum requirement, any fractional result of 0.5 or more must be rounded up to the next consecutive whole number. For example, if a minimum requirement of one tree for every 30 linear feet is applied to a fifty-foot dimension, the resulting fraction of 1.67 is rounded up to two required trees.

(2) Maximum limits. Except as otherwise expressly provided in the Code, when a regulation is expressed in terms of maximum limits, any fractional result will be rounded down to the next lower whole number. For example, if a maximum limit of one dwelling unit for every 2,500 square feet is applied to a 6,250 square foot lot, the resulting fraction of 2.5 is rounded down to two (allowed dwelling units).

G. Lists and examples. Unless otherwise expressly indicated, lists of items or examples that use "including," "such as," or similar terms are intended to provide examples only. They are not to be construed as exhaustive lists of all possibilities.

§ 360-1.7 Effect of establishment of districts.

Following the effective date of this chapter:

A. All general regulations affecting the use of land or buildings are in the affirmative and no other or further use is to be made of land or buildings except that shown in the chapter as applying to the district in which the land or building is located.

B. No land or building shall hereafter be used or occupied and no building or any part thereof shall be erected, relocated, altered, used or occupied unless in conformity with the regulations herein specified for the district in which such land or building is located.

C. No building shall hereafter be erected, altered, relocated, used or occupied to be of greater height, to accommodate a greater number of families, to occupy a greater percentage of lot area or to have narrower or smaller front yards, rear yards, side yards or courts, than is specified herein for the district in which such building is located.

D. No part of a street frontage, yard or other open space required by or about any building for the purpose of complying with the provisions of this chapter shall be included or considered as part of a street frontage, yard or other open space required by or about any other building to comply with the provisions of this chapter.

E. No building shall hereafter be erected on a lot having less frontage on an official Village street or way than that required for the district in which it is located.

F. No lot shall be formed from part of a lot already occupied by a building if nonconformity of lot, yard or open space is thereby created or increased, and the remaining lot shall comply with all requirements prescribed by this chapter for the district in which said lot is located. No permit shall be issued for the erection of a building on any new lot thus created unless such building and lot comply with all the provisions of this chapter.

G. Nothing contained in this chapter shall require any change in the plans, construction or designated use of a building complying with existing law, a permit for which shall have been duly issued and the construction of which shall have been started before the date of first publication of notice of the public hearing on this chapter, and the ground-story framework of which, including the second tier of beams, shall have been completed within six months of the date of the permit, and which the entire building shall have been completed in accordance with such plans as have been filed within one year from the date of passage of this chapter.

§ 360-1.8 Conflicting provisions.

A. Conflict with state or federal regulations. If the provisions of this chapter are inconsistent with those of the state or federal government, the more restrictive provision will control, to the extent permitted by law. The more restrictive provision is the one that imposes greater restrictions or more stringent controls on development.

B. Conflict with other Village regulations. If the provisions of this chapter are inconsistent with one another, or if they conflict with provisions found in other adopted ordinances or regulations of the Village, the more restrictive provision will control. The more restrictive provision is the one that imposes greater restrictions or more stringent controls on development.

C. Conflict with private agreements and covenants. This chapter is not intended to interfere with, abrogate or annul any easement, covenant, deed restriction or other agreement between private parties. If the provisions of this chapter impose a greater restriction than imposed by a private agreement, the provisions of this chapter will control. If the provisions of a valid, enforceable private agreement impose a greater restriction than this chapter, the provisions of the private agreement will control. The Village does not enforce private agreements.

§ 360-1.9 Nonconformities.

A. Intent. The regulations of this section govern nonconformities, which are uses, buildings or signs that were lawfully established but, because of the adoption of new or amended regulations, no longer comply with one or more requirements of this chapter. In older communities, such as the Village of Nyack, many buildings and uses that were established in compliance with all regulations in effect at the time of their establishment have been made nonconforming by Zoning Map changes (rezoning) or amendments to the Zoning Chapter text. The regulations of this chapter are intended to clarify the effect of such nonconforming status and avoid confusion with illegal buildings and uses (those established in violation of zoning rules). The regulations are also intended to:

(1) Recognize the interests of landowners in continuing to use their property for uses and activities that were lawfully established;

(2) Promote maintenance, reuse and rehabilitation of existing buildings; and

(3) Place reasonable limits on nonconformities that have the potential to adversely effect surrounding properties or the community as a whole.

B. Determination of nonconformity status. The burden of proof for establishing that a use, structure or lot is a legal nonconformity rests with the subject landowner.

C. Maintenance and restoration of nonconforming structures.

(1) Nonconforming structures must be maintained to be safe and in good repair. Incidental repairs and normal maintenance necessary to keep a nonconforming structures in sound condition are permitted, consistent with all permit or approval requirements of this chapter and the Village of Nyack Code.

(2) Normal maintenance, repair or reconstruction in kind of a building which houses a conforming use but is nonconforming as to the dimensional standards of Table 4-1[1] is permitted if same does not increase the degree of an existing nonconformity or create any new nonconformity.

[Amended 7-16-2015 by L.L. No. 3-2015]

[1] Editor’s Note: Said table is included as an attachment to this chapter.

(3) Nothing in this chapter shall be deemed to prevent normal maintenance and repair of any nonconforming structure. If structural alterations or demolitions are necessary in the interest of public safety that would have the effect of increasing the degree of or creating any new nonconformity, a building permit shall be required. In granting such a permit, the Building Inspector shall state the precise reason why such alterations were deemed necessary.

D. Nonconforming uses. Any nonconforming use may be continued indefinitely, but:

(1) Shall not be enlarged, extended, reconstructed or placed on a different portion of the lot, nor shall any external evidence of such use be increased by any means whatsoever.

(2) Shall not be changed to another nonconforming use without a special permit from the Zoning Board of Appeals and then only to a use that, in the opinion of said Board, is of the same or a more restricted nature.

(3) Shall not be reestablished if such use has been discontinued for any reason for a period of one year or more, or has been changed to, or replaced by, a conforming use. Intent to reestablish a nonconforming use shall not confer the right to do so.

(4) Shall not be restored for other than a conforming use after damage from any cause exceeding 50% of the replacement cost of such building, exclusive of foundations, as determined by the Building Inspector. Any such building damaged to a lesser extent may be restored but not enlarged if application for a building permit is made within six months of such damage and the nonconforming use reinstated within one year thereafter; if the restoration of such building is not completed within said one-year period, the nonconforming use of such building shall be deemed to have been discontinued, unless such nonconforming use is carried on without interruption in the undamaged portion of such building.

E. Nonconforming buildings. The alteration, enlargement or horizontal extension of a building that is nonconforming with respect to dimensional and development standards, as specified in Article IV of this chapter, is permitted unless the degree of the existing nonconformity of the building is increased by such alteration, enlargement or horizontal extension. Increasing the height of a wall or roof that is nonconforming shall be deemed to be an increase in the degree of nonconformity.

[Amended 7-16-2015 by L.L. No. 3-2015]

F. Nonconforming signs.

(1) A nonconforming permanent sign, except for a freestanding sign in place at the time of enactment of this chapter, must be removed within 24 months of the enactment of this chapter.

(2) All nonconforming temporary signs shall be removed within 30 days of the passage of this chapter.

(3) The maintenance of such nonconforming signs may be permitted, but any sign once removed for purposes other than maintenance shall be deemed permanently removed and may be replaced only in accordance with the provisions of this section.

§ 360-1.10 Enforcement.

A. Violations. All buildings and land used, and all buildings and structures erected, converted, enlarged, reconstructed, moved or structurally altered, must comply with all applicable provisions of this chapter. Failure to comply with applicable provisions constitutes a violation of this chapter. Express violations include, but are not limited to the following:

(1) Using land or buildings in any way inconsistent with the requirements of this chapter;

(2) Erecting a building or other structure in any way inconsistent with the requirements of this chapter;

(3) Engaging in the development of land in any way inconsistent with the requirements of this chapter;

(4) Installation or use of a sign in any way inconsistent with the requirements of this chapter;

(5) Engaging in the use of a building or land, the use or installation of a sign, or any other activity requiring one or more permits or approvals under this chapter without obtaining all such permits or approvals;

(6) Failure to comply with any permit or approval granted under this chapter;

(7) Failure to comply with any condition imposed on a permit or approval;

(8) Obscuring, obstructing, removing or destroying any notice required to be posted or otherwise given under this chapter; or

(9) Disobeying, omitting, neglecting or refusing to comply with or resist the enforcement of any of the provisions of this chapter.

B. Liability. The property owner, tenant or occupant of any land or structure, or part thereof, or any design professional, builder, contractor, vendor or authorized agent who participates in, assists, directs, creates or maintains any situation that is contrary to the requirements of this chapter is jointly and severally liable for the violation and subject to all available penalties and remedies.

C. Remedies and enforcement powers. The Village may use any lawful remedy or enforcement powers, expressly including those described in this section. The remedies and enforcement powers established in this chapter are cumulative, and the Village may exercise them in any order:

(1) Withhold permit. Village officials may deny or withhold all permits or other forms of authorization for any land or structure for which there is an uncorrected violation of a provision of this chapter or of a condition or qualification of a permit or other authorization previously granted by the Village. This provision applies regardless of whether the current property owner or applicant is responsible for the violation in question.

(2) Permits with conditions. Instead of withholding or denying a permit or other authorization, Village officials may grant such permit or authorization subject to the condition that the violation be corrected by a specified time. Village officials are also authorized to require adequate financial assurances that such correction will be made.

(3) Revoke permit.

(a) Any permit or other form of authorization required and issued under this chapter may be revoked when the Building Inspector determines that:

[1] There is departure from the plans, specifications or conditions required under terms of the permit;

[2] The development permit was procured by false representation or was issued by mistake; or

[3] Any of the provisions of this chapter are being violated.

(b) Written notice of revocation must be served upon the property owner, the property owner's agent or contractor, or upon any person employed on the building or structure for which such permit was issued, or posted in a prominent location. Once notice of revocation is provided, all construction must stop.

(4) Stop work. Whenever development is occurring in violation of this chapter, the Building Inspector may order the work to be immediately stopped, in accordance with the following standards:

(a) The stop-work order must be in writing and directed to the person doing the work; and

(b) The stop-work order must state the specific work to be stopped, the specific reasons for the stoppage, and the conditions under which the work may be resumed.

(5) Injunctive relief. The Village may seek an injunction or other equitable relief in court to stop any violation of this chapter.

(6) Abatement. The Village may seek a court order in the nature of mandamus, abatement or other action or proceeding to abate or remove a violation or to otherwise restore the premises in question to the condition in which they existed before the violation.

(7) Remedial action. Any person who violates this chapter by alteration or modification of a structure to increase the number of dwelling units or living spaces within the structure, or by allowing any such alteration or modification to continue or to be used, is required to remove all fixtures, connections, furnishings, partitions and non-load bearing walls used in the violation. Failure to remove any of the foregoing constitutes a separate violation.

(8) Penalties. Unless otherwise specified, any violation of this chapter is punishable by a penalty of not more than $350 for the first offense, $750 for the second offense, and $1,000 for the third and each subsequent offense. In addition to any penalties, all costs and expenses including reasonable attorney's fees and costs incurred by the Village in determining such violation may be collected.

(a) In addition, every violation of this chapter shall constitute disorderly conduct and every person violating the Zoning Chapter shall be a disorderly person, subject to both a fine and imprisonment not in excess of the maximum fine and imprisonment prescribed by the Penal Law for such disorderly conduct.

(b) Each week such violation or failure to comply exists after notice constitutes a separate and distinct offense.

(9) Other remedies and enforcement powers. Nothing in this chapter will be construed as depriving the Village of the right to apply for an injunction to prevent any violation or of employing any other remedies, as allowed by law.

D. Continuation of previous enforcement actions. Nothing in this chapter will be interpreted to prohibit the continuation of previous enforcement actions, undertaken by the Village under previous, valid ordinances and laws.

§ 360-1.11 Effective date.

The effective date of this chapter shall be January 1, 2010.

§ 360-1.12 Transitional provisions.

A. Applications submitted before effective date. Development applications or reapplications or requests for permit renewal or reinstatement that were submitted in complete form and are pending approval before the effective date, may be reviewed wholly under the terms of the zoning ordinance in effect immediately before this chapter and which this chapter supersedes in its entirety on the effective date ("previous ordinance"), or may be reviewed wholly under the terms of this chapter. Whether such review takes place under the previous ordinance or under this chapter shall be at the discretion of the applicant. The applicant's decision as to which ordinance shall apply, once submitted, shall not be subject to change. All development applications or reapplications or requests for permit renewal or reinstatement submitted on or after the effective date will be subject to and reviewed wholly under the terms of this chapter.

B. Permits issued before the effective date. Any building, development or structure for which a final building permit was issued before the effective date may be completed in conformance with the issued building permit and other applicable permits and conditions, even if such building, development or structure does not fully comply with provisions of this chapter. If building is not commenced and diligently pursued within the time allowed under the original permit or any extension granted, then the building, development or structure must be constructed, completed and occupied only in strict compliance with the standards of this chapter.

C. Violations continue. Any violation of the previous ordinance will continue to be a violation under this chapter and shall be subject to penalties and enforcement under § 360-1.10. If the use, development, construction or other activity that was a violation under the previous ordinance complies with the express terms of this chapter, enforcement action will cease, except to the extent of collecting penalties for violations that occurred before the effective date. The adoption of this chapter does not affect or prevent any pending or future prosecution of, or action to abate, violations of the previous ordinance that occurred before the effective date.

D. Nonconformities. Any nonconformity under the previous ordinance will also be a nonconformity under this chapter, unless changes to this chapter, or any subsequent amendment to it, permit the previously nonconforming use, structure or sign.

E. Existing uses.

(1) When a use classified as a special use under this chapter exists as a special use or permitted use on the effective date, such use will be considered a legal special use except as otherwise expressly provided in this section.

(2) When any amendment to this chapter changes the classification of a permitted use to a special use, any use legally established before such amendment will be considered a legal special use after the effective date of such amendment.

(3) A lawfully established, existing use that is not allowed as a special use or permitted use in the district in which the use is now located will be considered a nonconforming use and will be subject to all applicable regulations of § 360-1.10.

§ 360-1.13 Repealer.

The following chapters of the Village of Nyack Code, together with changes and amendments thereto, are hereby repealed and declared to be of no effect due to incorporation within this chapter:

A. Chapter 11, Building Line;

B. Chapter 20, Fences;

C. Chapter 50, Subdivision of Land; and

D. Chapter 54, Trees.