The Zoning Board of Appeals, as heretofore established by the
Town Board pursuant to § 267 of the Town Law of the State
of New York, is hereby maintained.
12.1.1
Membership. The Zoning Board of Appeals shall consist of seven members
who may serve with compensation. The Town Board, by resolution, shall
appoint the members thereof and shall designate the Chairman. No person who is a member of the Town Board shall be eligible
to serve simultaneously on the Board of Appeals.
12.1.2
Terms of office. The members of the Zoning Board
of Appeals holding office on the effective date of
this chapter shall continue to hold such office until
the expiration of their respective terms and the appointment of their
successors. Of the first of the successor members, upon the expiration
of each of the aforesaid terms, two shall hold office for the term of one year, three for the term of two years and two
for the term of three years from and after their respective appointments.
Their successors shall be appointed for a term five years from and
after the expiration of the terms of their predecessors in office. If a vacancy shall occur, otherwise than by expiration
of term, it shall be filled with a successor appointed by the Town
Board for the unexpired term.
12.1.3
Removal of members. The Town Board shall have the power to remove
any member of the Zoning Board of Appeals for cause and after a public
hearing.
The presence of four members of the Zoning Board of Appeals
shall constitute a quorum. The concurring vote of four members shall
be necessary to effect any variation or variance in this chapter,
to reverse any order, requirement, decision or determination appealed
from or to decide in favor of the applicant in any
matter before the Board. The Board shall keep minutes of its proceedings,
showing the vote of each member on every question and, if any member
is absent or fails to vote, indication of such fact. The Board shall
also keep records of its review and other official actions. Every
rule, determination, regulation, amendment or appeal thereof, and
every order, requirement and decision of the Zoning Board of Appeals,
shall immediately be filed in the office of said
Board.
12.3.1
General. The Zoning Board of Appeals shall have all of the powers
and duties prescribed by Town Law and by this chapter, which powers
and duties are summarized and more particularly specified in the following,
provided that none of the following sections shall be deemed to limit
any of the powers of the Board of Appeals that are conferred by the
Town Law. In passing upon any matter before it, the Board shall take
into specific consideration the goals of this chapter, which constitutes
the comprehensive plan of the Town of Oyster Bay.
12.3.2
Rules and regulations. The Zoning Board of Appeals may adopt such
rules and regulations as are necessary or proper to the performance
of its powers and duties hereunder, and may amend or repeal the same.
12.3.3
Special use permits. The Zoning Board of Appeals is authorized to
hear and decide applications for certain special use permits in accordance
with the procedures and standards set forth in § 246-9 of
this chapter.
12.3.4
Nonconforming uses. As more fully set out in § 246-4.2
of this chapter, the Board of Appeals is authorized to extend the
permitted period for cessation of a nonconforming use; to review and
approve, approve with modifications or disapprove a plan for the reconstruction
(but not expansion) of a nonconforming building;
to permit the change of a nonconforming use to another nonconforming
use; and to review and approve, approve with modifications or disapprove
a plan for the improvement of a nonconforming use.
12.3.5
Variances. On appeal from an order, requirement, decision or determination
made by an administrative official charged with the enforcement of
this chapter, or on referral of an applicant to the
Zoning Board of Appeals by an approving agency acting pursuant to
requirements of this chapter, the Zoning Board of Appeals is authorized
to vary or modify the strict letter of this chapter, where its literal
interpretation would cause unnecessary hardships, in such manner as
to observe the spirit of the chapter, secure public safety and welfare
and do substantial justice.
12.3.5.1
Use variances. Where an applicant demonstrates
that applicable regulations and restrictions have caused unnecessary
hardship and where the applicant desires to utilize
land for a use not allowed in the district in which the land is located,
the Zoning Board of Appeals may grant a variance in the application
of the provisions of this chapter, in the specific case, provided
that as a condition to the grant of any such variance, the Board shall
make all of the following findings for each and every permitted use
under this chapter for the particular district in which the property
is located:
12.3.5.1.1
That the applicant cannot realize a reasonable
return, provided that lack of return is substantial as demonstrated
by competent financial evidence.
12.3.5.1.2
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 in which the property in question is located.
12.3.5.1.3
That the use to be authorized by the variance will not alter
the essential character of the neighborhood in which the property
in question is located.
12.3.5.1.4
That the alleged hardship has not been created by the applicant, owner or by a predecessor in title.
12.3.5.1.5
That the use to be authorized by the variance, and any conditions
imposed thereto, are consistent with the spirit and intent of this
chapter.
12.3.5.1.6
That within the intent and purposes of this chapter the variance,
if granted, is the minimum variance necessary to afford relief. To
this end, the Board may permit a lesser variance than that for which
an application was submitted.
12.3.5.2
Area variances. Where an applicant requests
a variance of the lot area or other dimensional requirements
of this chapter, the Zoning Board of Appeals may grant a variance
in the application of the provisions of this chapter in the specific
case, provided that as a condition to the grant of any such variance,
the Board shall consider 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 this determination, the Board of Appeals shall
consider the following:
12.3.5.2.1
How substantial the variance is in relation to the requirement.
12.3.5.2.2
Whether an adverse effect or impact will be created on the physical
or environmental conditions in the neighborhood or district.
12.3.5.2.3
Whether an undesirable change will be produced in the character
of the neighborhood or a detriment to nearby properties created.
12.3.5.2.4
Whether the benefit sought by the applicant can be achieved by some method feasible for the applicant to pursue, other than a variance.
12.3.5.2.5
Whether the hardship or difficulty claimed as a ground for the
variance has been created by the owner or by a predecessor in title.
Mere purchase of the land subject to the restrictions sought to be
varied shall not in itself constitute a self-created hardship.
12.3.5.2.6
The Zoning Board of Appeals shall grant the minimum variance
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.
12.3.6
Interpretations. On appeal from an order, requirement, decision or
determination made by an administrative official charged with the
enforcement of this chapter, or on request from any official, agency
or board of the town, the Zoning Board of Appeals is authorized to
decide any question involving the interpretation of any provision
of this chapter. Interpretations shall be made in accordance with
the intent of the particular provision being interpreted.
12.3.7
Conditions and safeguards. In granting a use or area variance, the
Zoning Board of Appeals may prescribe 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 the variance may have on the neighborhood
or community and to protect the public health, safety and welfare.
Such conditions or restrictions shall be incorporated in the building permit and certificate of occupancy. Failure to
comply with such conditions or restrictions shall constitute a violation
of this chapter and may constitute the basis for denial or revocation
of a building permit or certificate of occupancy
and for all other applicable remedies.
A variance granted under this chapter shall automatically expire
if substantial construction in accordance with the plans for which
such variance was granted has not been completed within one year,
or such other time limit as may be chosen by the Zoning Board of Appeals
in connection with its decision, from the date of filing the resolution
of approval of variance by the Board; or, if judicial proceedings
to review the Board's decision shall be instituted, from the date
of entry of the final order in such proceedings, including all appeals.
[Amended 10-16-2012 by L.L. No. 3-2012]
All fees charged by the Board of Appeals shall be in an amount
as determined by the Commissioner of the Department of Planning and
Development.
