The Board of Trustees shall appoint a Board of Appeals, containing
five members, pursuant to § 7-712 of the Village Law of
the State of New York.
Procedure. Meetings shall be held at the call of the Chairman
and at such other times as the Board may determine. The Board shall
adopt rules and regulations governing its procedures. The presence
of three members of the Board shall be necessary for a quorum. The
concurring vote of three members shall be necessary to affect 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 any matter before the Board. The Board shall keep minutes
of its proceedings, showing the vote of each member on every question,
or if any member is absent or fails to vote, indicating that fact,
and shall also keep records of its examinations and other official
actions. Every rule, determination, regulation, amendment or appeal
thereof and every order, requirement and decision of the Board shall
be filed in the office of the Village Clerk within five business days.
A.
General. The Board of Appeals shall have all of the powers and duties
prescribed by the Village 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
Village Law. In passing upon any matter before it, the Board shall
take into specific consideration the goals of this chapter.[1]
B.
Nonconforming uses. The Board of Appeals is authorized to extend the permitted period for cessation of a nonconforming use in accordance with the requirements of § 230-13B(5) of this chapter; to permit the change of a nonconforming use to another nonconforming use in accordance with § 230-13F of this chapter; and to review and approve, approve with modifications or disapprove a plan for the improvement of a nonconforming use in accordance with § 230-13G.
[Amended 3-12-2002 by L.L. No. 1-2002]
C.
Variances. On appeal from an order, requirement, decision or determination
made by on administrative official charged with the enforcement of
this chapter, or on referral of an applicant to the Board by an approving
agency acting pursuant to this chapter, the Board of Appeals is authorized
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 this chapter, secure public safety and welfare and do substantial
justice.
(1)
Use variances. Where, because of unnecessary hardship relating to
the land, an applicant desires to utilize land for a use not allowed
in the district in which the land is located, the Board 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 each and every one of the following
findings:
[Amended 9-13-1993 by L.L. No. 2-1993]
(a)
That under the applicable zoning regulations, the owner of the
property in question cannot realize a reasonable return, provided
that lack of return is substantial as demonstrated by competent financial
evidence; and[2]
(b)
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; and
(c)
That the use to be authorized by the variance will not alter
the essential character of the neighborhood; and
(d)
That the unnecessary hardship claimed as a ground for the variance
has not 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 itself constitute a self-created hardship; and
(e)
That, within the intent and purposes of this chapter, the variance,
if granted, is the minimum variance necessary to afford relief and
at the same time preserve and protect the character of the neighborhood
and the health, safety and welfare of the community. To this end,
the Board may permit a lesser variance than that applied for.
(2)
Area variances. Where, because of practical difficulty, an applicant
requests a variance of the lot area or other dimensional requirements
of this chapter, the Board 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 a specific finding that the application of the requirements of
this chapter to the land in question creates such practical difficulty.
In making this determination, the Board shall consider the following
factors:
[Amended 9-13-1993 by L.L. No. 2-1993]
(a)
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.
(b)
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.
(c)
Whether the benefit sought by the applicant can be achieved
by some method feasible for the applicant to pursue other than an
area variance.
(d)
Whether the requested area variance is substantial in relation
to the requirement.
(e)
Whether the proposed variance will have an adverse effect or
impact on the physical or environmental conditions in the neighborhood
or district.
(f)
Whether the alleged difficulty was self-created, which consideration
shall be relevant to the decision of the Board but shall not necessarily
preclude the granting of the area variance.
(g)
The Board, in the granting of an area variance, shall grant
the minimum variance that it shall deem necessary and adequate to
afford relief and at the same time preserve and protect the character
of the neighborhood and the health, safety and welfare of the community.
To this end, the Board may permit a lesser variance than that applied
for.
(3)
Variances for satellite dishes. Where, because of difficulties in reception of delivered signals, an applicant requests a variance of the requirements of either or both § 230-14U(1) or (2) of this chapter, the Board shall grant a variance in the application of the provisions of this chapter in the specific case, in the event that (and as a condition to the grant of any such variance) the Board shall make a specific finding that the application of the requirements of such sections of this chapter to the land in question prevents or unreasonably limits reception of delivered signals. In making this determination, the Board shall make the following findings:
[Added 12-12-1989 by L.L. No. 2-1989; amended 3-12-2002 by L.L. No.
1-2002]
(a)
In the case of a variance of the requirements of § 230-14U(1), that no point exists within the permitted location for satellite dishes greater than one meter in diameter where such a satellite dish can be installed without preventing or unreasonably limiting reception of delivered signals.
(b)
In the case of a variance of the requirements of § 230-14U(2), that the limitation on the height of such satellite dish will prevent or unreasonably limit reception of delivered signals.
(4)
Variances when Planning Board applications involved. Where a proposed site plan contains one or more features which do not comply with the zoning regulations, or where a proposed special permit use contains one or more features which do not comply with the zoning regulations, or where a proposed subdivision plat contains one or more lots which do not comply with the zoning regulations, application may be made to the Board of Appeals for an area variance or variances pursuant to Subsection C(2), without the necessity of a decision or determination of an administrative official charged with the enforcement of this chapter or a referral by an approving agency acting pursuant to this chapter.
[Added 9-13-1993 by L.L. No. 2-1993]
D.
Other appeals. 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 Village, the 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.[3]
[3]
Editor's Note: Original § 9.3.6, Decisions of the
Architectural Review Board, which immediately followed this subsection,
was repealed 9-12-2006 by L.L. No. 4-2006.
E.
Conditions and safeguards. The Board of Appeals, in the granting
of both use variances and area variances, may prescribe such reasonable
conditions or restrictions applying to the grant of a variance as
it may deem necessary in each specific case, in order to minimize
the adverse effects of such variance upon the character and property
values of the neighborhood or community and to protect the public
health, safety and welfare. Such conditions or restrictions shall
be directly related to and incidental to the proposed use of the property
and/or the period of time such variance shall be in effect. 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.
[Amended 9-13-1993 by L.L. No. 2-1993]
A.
Appeal or application. An appeal shall be taken within 60 days of
the order or decision appealed from, by filing with the official or
agency from whom the appeal is taken and with the Board of Appeals
of a notice of appeal, specifying the ground thereof. The official
or agency from whom the appeal is taken shall forthwith transmit to
the Board all the papers constituting the record upon which the action
appealed from is taken. A referral to the Board for a variance, or
a request for an interpretation, may be made at any time. All such
appeals and applications to the Board shall be made by the owner or
agent duly authorized, in writing, and shall be on forms prescribed
by the Board. Each appeal or application shall fully set forth the
circumstances of the case, shall refer to the specific provision of
the chapter involved, and shall exactly set forth, as the case may
be, the interpretation that is claimed, the details of the adjustment
that is applied for, and the grounds on which it is claimed that the
same should be granted.
[Amended 9-13-1993 by L.L. No. 2-1993]
B.
Review by other agencies.
(1)
Upon receipt of a completed appeal or application, the Board of Appeals
may forward copies for review and report to the Building Inspector,
Code Inspector, Village Engineer and Planning Board, and to other
such officials and agencies of the Village as it deems appropriate.
All such agencies shall have 45 days from the date of forwarding to
submit a report. If approval of a site plan or issuance of a special
permit is involved, the Board of Appeals shall forward sufficient
copies for review and report to the Planning Board and shall not act
on the matter until it has received the report of the Planning Board
or 45 days have passed since such forwarding.
(2)
The Board of Appeals shall refer to the Rockland County Planning
Board for its recommendation all matters within the provisions of
Article 12B, §§ 239-i and 239-m, of the General Municipal
Law, which includes real property lying within 500 feet from the boundary
of any city, Village, or town, or from the boundary of any existing
or proposed county or state parkway, thruway, expressway, road, highway
or from 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, or from the existing or proposed boundary of any county
or state owned land on which a public building or institution is situated,
and any special permit or variance affecting such use or property
within a distance of 500 feet. The Rockland County Planning Board
shall render its decision within 30 days of referral or within an
extended period if agreed upon. If the Rockland County Planning Board
fails to report within such period of 30 days or such longer period
as has been agreed upon by it and the Board of Appeals, the Board
of Appeals may act without such report. If the Rockland County Planning
Board disapproves the proposal, or recommends modifications thereof,
the Board of Appeals shall not act contrary to such disapproval or
recommendation except by a vote of a majority plus one of all members
thereof and after the adoption of a resolution fully setting forth
the reasons for such contrary action. Within 30 days after final action
by the Board of Appeals, a report shall be filed of the final action
it has taken with the County Planning Board which had made the recommendations,
modifications or disapproval.[1]
C.
Public hearing. The Board of Appeals shall conduct a public hearing
on any appeal, application or request made pursuant to this chapter.
Such public hearing shall be held within 60 days of the date an appeal
is taken or an application or request is made to the Board.
D.
Notice of hearing. Notice of hearing shall be published in the official newspaper at least 10 days prior to the date of such hearing. Notice shall also be sent 10 days prior to the date of such hearing to all property owners within 750 feet of the perimeter of the property, in the same manner as is required for zoning amendments changing the district classification of land, as set forth in § 230-78 of this chapter. The applicant shall cause signs to be posted on such property on each street frontage indicating the date and purpose of such hearing. The costs of all such notice shall be paid by the applicant.
[Amended 12-12-1995 by L.L. No. 1-1995]
E.
Action. The Board of Appeals shall decide upon the appeal within
62 days after the conduct of said hearing. The time within which the
Board of Appeals must render its decision may be extended by mutual
consent of the applicant and the Board. Every decision of the Board
of Appeals shall be by resolution, shall be recorded and shall fully
set forth the facts of the case, the findings and the conclusions
on which the decision was based. The decision of the Board shall be
filed in the office of the Village Clerk with five business days after
the day such decision is rendered, and a copy of such resolution shall
be mailed to the applicant forthwith.
[Amended 9-13-1993 by L.L. No. 2-1993]
[Amended 3-3-2020 by L.L. No. 1-2020]
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 18 months,
or such other time limit as may be chosen by the Board of Appeals
in connection with its decision, from the date of granting such 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.
Every application or appeal to the Board shall be subject to
a fee as set forth in the Fee Schedule of the Village of Wesley Hills.
