[Amended 10-16-2006 by L.L. No. 10-2006]
A.
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.
B.
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.
A.
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.
B.
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:
C.
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.
(1)
Area variances.
(a)
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.
(b)
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:
[1]
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;
[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 proposed variance will have an adverse
effect or impact on the physical or environmental condition in the
neighborhood or district; and
[5]
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.
(c)
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.
(2)
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.
(a)
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)
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.
D.
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.
E.
Special permits.
(1)
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]
(2)
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.
(3)
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).
(4)
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.
(5)
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.
(8)
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]
F.
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.
A.
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.
B.
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.
C.
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.[1]
[1]
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.
