[Amended 10-22-2001 by L.L. No. 2-2001]
The Mayor, with the approval of the Board of Trustees, shall
appoint a Board of Appeals consisting of five members and two alternate
members pursuant to the provisions of § 7-712 of the Village
Law of the State of New York.
A.
The terms of each member of the Board of Appeals, including alternates
thereof, shall be five official years. Notwithstanding the provisions
of § 7-712 of the Village Law of the State of New York,
the terms of Chairperson and Deputy Chairperson of the Zoning Board
of Appeals of the Village of New Hempstead shall be one year.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
B.
Notwithstanding the provisions of Subdivision 11 of § 7-712
of the Village Law of the State of New York, and for the purpose of
specifically overriding said provisions, the Chairperson of the Zoning
Board of Appeals may designate an alternate member to substitute for
a member of said Board when said member is unable to participate because
of a conflict of interest on an application or matter before the Board
or when said member is unable to attend a meeting of the Board for
any reason whatsoever. When so designated, the alternate member shall
possess all the powers and responsibilities of said member of the
Board. Such designation shall be entered into the minutes of the Board
of Appeals meeting at which the substitution is made.
C.
All provisions of § 7-712 of the Village Law of the State
of New York relating to Zoning Board of Appeals member training, continuing
education, attendance, conflicts of interest, compensation, eligibility,
vacancy in office, removal and service on other boards shall also
apply to alternate members.
Meetings shall be held at the call of the Chairperson 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 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
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 promptly be filed in the
office of the Board.
The Zoning Board of Appeals shall have all 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 Zoning 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.
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.
The Zoning Board of Appeals is authorized to extend the permitted period for cessation of a nonconforming use in accordance with the requirements of § 290-12E of this chapter; to review and approve, approve with modifications or disapprove a plan for reconstruction of a nonconforming building in accordance with the requirements of § 290-14B of this chapter; to permit the change of a nonconforming use to another nonconforming use in accordance with § 290-15 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 § 290-16 of this chapter.
[Amended 9-24-1992 by L.L. No. 2-1992]
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 Board by an approving
agency acting pursuant to 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 practical difficulties
or unnecessary hardships, as defined in this section, in such a manner
as to observe the spirit of the chapter, secure public safety and
welfare and do substantial justice.
A.
Use variances.
(1)
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. In order to
prove such unnecessary hardship, the applicant shall be required to
demonstrate the following to the Board of Appeals:
(a)
Under applicable zoning regulations the applicant cannot realize
a reasonable return, provided that the lack of return is substantial
as demonstrated by competent financial evidence.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
(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.
(c)
That the requested use variance, if granted, will not alter
the essential character of the neighborhood.
(d)
That the alleged hardship has not been self created.
(2)
The Board of Appeals, in granting the use variance, shall grant the
minimum variance that it shall deem necessary and adequate to address
the unnecessary hardship provided 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.
B.
Area variances.
(1)
Where 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.
In making its determination, the Zoning Board of Appeals 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:
(a)
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 variance.
(b)
Whether the benefit sought by the applicant can be achieved
by some method, feasible for the applicant to pursue, other than a
variance.
(c)
Whether the requested variance is substantial.
(d)
Whether the proposed variance will have an adverse effect or
impact on the physical or environmental conditions in the neighborhood
or district.
(e)
Whether the alleged difficulty was self-created; this consideration
shall be relevant to the decision of the Board of Appeals but shall
not necessarily preclude the granting of the variance.
(2)
The Board of Appeals, 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.
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 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.
The Zoning Board of Appeals is authorized to hear and decide appeals from decisions of the Architectural Review Board. The Board may grant a variance in the application of the decision of the Architectural Review Board, provided that it finds, in accordance with the standards of § 290-90B, that there are practical difficulties associated therewith.
[Amended 9-24-1992 by L.L. No. 2-1992]
The Board of Appeals shall, in the granting of both use variances
and area variances, have the authority to impose such reasonable conditions
and restrictions as are directly related to and incidental to the
proposed use of the property, or the period of time such variance
shall be in effect. 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 such variance may have on the neighborhood
or community. Such conditions or restrictions shall be incorporated
into 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 at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
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 Zoning Board of Appeals 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.
A.
Upon receipt of a completed appeal or application, the Zoning Board
of Appeals shall 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 30 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 Zoning Board of Appeals shall forward sufficient
copies for review and report to the applicable approving agency and
shall not act on the matter until it has received the report of the
approving agency or 30 days have passed since such forwarding.
B.
The Zoning Board of Appeals shall refer to the Rockland County Planning
Board for its recommendation all matters within the provisions of
Article 12-B, §§ 239-l and 239-m, of the General Municipal
Law, which includes real property lying within 500 feet of 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 Zoning Board of Appeals, the
Zoning Board of Appeals may act without such report. If the Rockland
County Planning Board disapproves the proposal or recommends modifications
thereof, the Zoning 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 seven
days after final action by the Zoning 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.
The Zoning 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 45 days of the date an appeal
is taken or an application or request is made to the Board.
Notice of the hearing shall be published in the official newspaper at least 10 days prior to the date of such hearing. Notice shall also be sent by the applicant 10 days prior to the date of such hearing to all property owners within 500 feet of the perimeter of the property, in the same manner as is required for amendments, pursuant to § 290-135 of this chapter. The applicant shall cause signs to be posted on such property on such street frontage indicating the date and purpose of such hearing. The costs of all such notice shall be paid by the applicant.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
The Board of Appeals shall decide upon an appeal within 62 days
after the conduct of the hearing thereon. Every decision of the Zoning
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 Board shall file its resolution
in the office of the Village Clerk within five business days and shall
mail a copy of such resolution to the applicant.
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 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 New Hempstead.
