There is hereby established a Board of Appeals
consisting of three members, which shall function in the manner prescribed
by law. The members of the Board of Appeals shall be residents of
the Village and shall be appointed by the Village Board to serve for
three-year terms as prescribed by law. Vacancies occurring in said
Board, by expiration of term or otherwise, shall be filled in the
manner provided by law. The Board of Appeals shall adopt such rules
and regulations as it may deem necessary to carry into effect the
provisions of this chapter, and all its resolutions and orders shall
be in accordance therewith.
[Amended 2-5-2013 by L.L. No. 1-2013]
The Board of Appeals shall act in strict accordance
with the procedure specified by law and by this chapter. All appeals
and applications made to the Board shall be in writing, on forms prescribed
by the Board. Every appeal or application shall refer to the specific
provision of the chapter involved and shall set forth the interpretation
that is claimed, the details of the variance that is applied for or
the use for which the special permit is sought, and the basis thereof.
At least seven days before the date of the hearing required by law
on an application or an appeal to the Board of Appeals, the Secretary
of said Board shall transmit to the Planning Board a copy of said
application or appeal, together with a copy of the notice of the aforesaid
hearing, and shall request that the Planning Board submit to the Board
of Appeals its opinion on said application or appeal, and the Planning
Board shall submit a report of such advisory opinion prior to the
date of said hearing. Upon failure to submit such report, the Planning
Board shall be deemed to have approved the application or appeal.
All meetings of the Board of Appeals shall be
held at the call of the Chairman and at such other times as such Board
may determine. The Chairman or, in his absence, the Acting Chairman
may administer oaths and compel the attendance of witnesses. Meetings
of the Board shall be open to the public. Such Board shall keep minutes
of its proceedings showing the vote of each member upon every question
or, if absent or failing to vote, indicating such fact, and shall
also keep records of its examinations and other official actions.
[Amended 2-5-2013 by L.L. No. 1-2013]
All decisions of the Board shall be by resolution,
and a copy of each decision shall be sent to the applicant, to the
Village Clerk and to the Zoning Officer. Every rule, regulation, amendment
or repeal thereof and every order, requirement, decision or determination
of the Board shall immediately be filed in the office of the Board
and shall be a public record. Each decision shall set forth fully
the reasons for the decision of the Board and the findings of fact
on which the decision was based. Such findings and reasons shall include
references to the standards pertaining thereto where the appeal is
for a variance or a special permit.
A.
The Board of Appeals shall hear and decide appeals
from and review any order, requirement, decision or determination
made by the Zoning Officer. It shall also hear and decide all matters
referred to it upon which it is required to pass under this chapter.
The concurring vote of a majority of the Board of Appeals shall be
necessary to reverse any order, requirement, decision or determination
of the Zoning Officer or to decide in favor of the applicant on any
matter upon which it is required to pass under this chapter or to
effect any variation in this chapter. Such appeal may be taken by
any persons aggrieved or by an officer, department, board or bureau
of the Village.
B.
Such appeal shall be taken within 30 days, or such
additional time as shall be prescribed by the Board of Appeals by
general rule, by filing with the Zoning Officer and with the Board
of Appeals a notice of appeal specifying the grounds thereof. The
Zoning Officer shall forthwith transmit to the Board all of the papers
constituting the record upon which the action appealed from was taken.
An appeal stays all proceedings in furtherance
of the action appealed from unless the Zoning Officer from whom the
appeal is taken certifies to the Board of Appeals after the notice
of appeal shall have been filed with him that, by reason of acts stated
in the certificate, a stay would in his opinion cause imminent peril
to life or property; otherwise, proceedings shall not be stayed except
by a restraining order which may be granted by the Board of Appeals
or by a court of record on application, on notice to the officer from
whom the appeal is taken and on due cause shown.
The Board of Appeals shall fix a reasonable
time for the hearing of the appeal and give due notice thereof to
the parties, and by publication at least once in the official newspaper
seven days before the date of the hearing, and shall decide the same
within a reasonable time. Upon the hearing, any party may appear in
person or by agent or by attorney. The applicant shall bear the cost
of advertising as required in connection with hearings.
The Board of Appeals shall have the following
powers and duties prescribed by statute and by this chapter as described
below:
B.
To consider and to grant, grant with conditions, and/or deny applications
for special permits.
[Amended 2-5-2013 by L.L. No. 1-2013]
C.
Interpretation. On appeal from a determination of
the Zoning Officer, to hear and decide on questions where it is alleged
there is an error in any order, requirement, decision or determination
made by the Zoning Officer involving the interpretation of any provision
of the chapter.
D.
Variances. On appeal from the decision or determination of the Zoning
Officer, or otherwise as contemplated by this chapter, to grant use
variances and area variances, subject to and upon the terms and conditions
set forth herein.
[Amended 2-5-2013 by L.L. No. 1-2013]
(1)
Use variances.
(a)
No use variance shall be granted unless, in addition to satisfying
all other applicable provisions of law and this chapter, the Board
of Appeals finds that otherwise applicable zoning regulations and
restrictions have caused unnecessary hardship as set forth herein.
[1]
Unnecessary hardship. In order to prove the existence of an
unnecessary hardship for purposes hereof, the applicant is required
to clearly demonstrate to the Board of Appeals' satisfaction
that, with respect to every permitted use under the zoning regulations
for the particular district where the property is located, each and
every of the following four criteria is satisfied:
[a]
The applicant cannot realize a reasonable return
on the entire parcel of property, and such lack of return is substantial
as demonstrated by competent financial evidence;
[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 involved;
[c]
That the requested use variance, if granted, will
not alter the essential character of the neighborhood; and
[d]
That the alleged hardship has not been self-created.
[2]
Reasonable rate of return. In evaluating whether the applicant
can realize a reasonable rate of return, the Board of Appeals shall
examine whether the entire original or expanded property holdings
of the applicant are incapable of producing a reasonable rate of return
(and not just the site of the proposed project). No use variance shall
be granted unless, in addition to satisfying all other applicable
provisions of law and this chapter, the Board of Appeals finds that
the applicant has clearly demonstrated, by detailed, written "dollar
and cents" proof, the inability to obtain a reasonable return for
the entire parcel (and not just the site of the proposed project)
and for each and every permitted use in the district (including those
uses permitted by special use permit).
[3]
Unique hardship. No use variance shall be granted unless, in
addition to satisfying all other applicable provisions of law and
this chapter, the Board of Appeals finds that the entire parcel of
which the project is a part possesses unique characteristics that
distinguish it from other properties in the area.
[4]
Essential character of the neighborhood. No use variance shall
be granted unless, in addition to satisfying all other applicable
provisions of law and this chapter, the Board of Appeals finds that
the proposed project will not alter the essential character of the
neighborhood.
[a]
In making its determination of whether the proposed
project will alter the essential character of the neighborhood, the
Board of Appeals shall take into account factors that are of vital
importance to the citizens of the Village including without limitation:
[i]
The rural residential, agricultural and historic
character of the Village;
[ii]
Its irreplaceable recreation and tourism sites;
[iii]
The extent of hazard to life, limb or property
that may result from the proposed project;
[iv]
Health impacts;
[v]
The social and economic impacts of traffic congestion,
noise, dust, odors, emissions, solid waste generation and other nuisances;
[vi]
The impact on property values; and
[vii]
Whether the applicant will use a style of development
that will result in degradation to the air quality, water quality
or scenic and natural resources of the Village.
[b]
In order to find that the proposed project does
not alter the essential character of the neighborhood, the Board of
Appeals shall interpret the public interest in said essential character
of the neighborhood to require, at a minimum, that the project will
not do any of the following:
[5]
Self-created hardship. No use variance shall be granted unless,
in addition to satisfying all other applicable provisions of law and
this chapter, the Board of Appeals finds that the alleged hardship
was not self-created. The Board of Appeals may find that the applicant
suffers from a self-created hardship in the event that the Board finds
that:
[a]
The applicant's inability to obtain a reasonable
return on the property as a whole results from having paid too much
or from a poor investment decision;
[b]
The applicant previously divided the property and
is left with only a portion which suffers from some unique condition
for which relief is sought and which did not apply to the parcel as
a whole; or
[c]
When the applicant purchased the property, the
applicant knew or should have known the property was subject to the
zoning restrictions.
(b)
In addition to the application requirements from time to time
established pursuant to law and this chapter, an application for any
use variance shall contain a typewritten narrative explaining what
the application is for, and how the project meets or exceeds all of
the criteria for a use variance, including:
[1]
Competent financial evidence. Competent written financial evidence
containing reasonable written specification of, and back-up (confirmation)
for, the nature and factual particulars of such claim, and articulating
the basis for the applicant's claim, and including, at a minimum
(as to the entire parcel of which the proposed project is a part):
[a]
The date of acquisition;
[b]
The purchase price;
[c]
The present value of the property;
[d]
The amount of real estate taxes;
[e]
The amount of mortgages or liens and other expenses;
[f]
The asking price for the property when it had been
offered for sale;
[g]
The costs of demolishing any existing structures
on the property;
[h]
The cost of erecting a new building(s) for each
and every permitted use in the zoning district (including uses allowed
by special use permit);
[i]
Efforts to market the property; and
[j]
A schedule of all other property in common ownership
at either the date of the enactment of this chapter or thereafter.
[2]
Competent written financial evidence must include written "dollars
and cents proof" such as appraisals, economic studies, and any other
written evidence supporting the applicant's contention that the
desired relief is appropriate, including appraisals relating to any
alleged diminution of all or substantially all of the fair market
value of property. For the purposes of this chapter, common ownership
means all other interests in property either located within the Village
or contiguous to the Village that is held by any of the applicants
(if more than one), whether such ownership is of a legal or equitable
interest, in whole or in part, contiguous or not, and whether such
property interest is held by any of the applicants through a legal
or equitable interest in a(nother) corporation, partnership, trust,
business, entity, association, fund, joint venture, or individually.
[3]
Unique nature of the property. The applicant must provide evidence
demonstrating the unique nature of the parcel as a whole. The fact
that the improvements already existing at the time of the application
are old, obsolete, outmoded or in disrepair or the fact that the property
is then unimproved shall not be deemed to make the plight of the property
unique or to contribute thereto. Exceptional topographic conditions
are an example of a factor demonstrating the unique nature of the
property.
[4]
Alteration of the essential character of the neighborhood. The
applicant must demonstrate that the proposed project will not adversely
change the essential character of the neighborhood with regard to
physical, economic, social or environmental elements. Adverse impacts
to the essential character of the neighborhood include, but are not
limited to, decreased quality or increased quantity of stormwater
runoff, increased soil erosion, increased traffic congestion, decreased
road quality, impairment of the scenic or rural character of roads,
increased noise, dust, odor and/or glare, reduced wildlife habitat,
decreased air quality, decreased water quality, impairment of the
viewshed, creation of solid wastes, negative impacts on sustainability
efforts, increased social costs, increased emergency response times,
negative impacts to public infrastructure, decreased property values,
and negative impacts on the health of area residents.
[5]
Hardship not self-created. In order to show that the hardship
is not self-created, the applicant must demonstrate that either:
[a]
When the property was purchased the zoning restrictions
from which a use variance is now sought were not in existence or did
not otherwise apply; or
[b]
Some other change has occurred since the applicant's
purchase which makes the use nonconforming, as long as that change
was not caused by the applicant.
(c)
The Board of Appeals, in the granting of use variances, shall
grant only the minimum variance that it shall deem necessary and adequate
to allow an economically beneficial use of the property, and at the
same time preserve and protect the essential character of the neighborhood
and the health, safety and welfare of the community.
(d)
The Board of Appeals, in the granting of use variances, shall
have the authority to impose such reasonable conditions and restrictions
as are directly related to and incidental to the proposed project.
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 use variance may have on the neighborhood or community.
Such conditions may include, but are not limited to, landscaping,
lighting, access and egress, signs, screening, architectural features,
location and layout of buildings, limitations upon the use or characteristics
of the use which are reasonably related to the public health, safety
and general welfare and as may be necessary to carry out the intent
of this chapter. If the applicant refuses to accept such requirements
and conditions, the use variance shall be denied.
(2)
Area variances.
(a)
In making a determination whether to grant, grant conditionally,
or deny an application for an area variance, the Board of Appeals
shall take into consideration the benefit to the applicant if the
area variance is granted, and balance this benefit against the detriment
to the health, safety and welfare of the neighborhood or community
by making such grant. In making such determination, the Board shall
consider each of the following factors:
[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 area variance will have art adverse effect
or impact on the physical or environmental conditions in the neighborhood
or district; and
[5]
Whether the alleged difficulty was self-created. (In contrast
to the context of a use variance, in the context of an area variance
application whether or not the alleged difficulty was self-created
shall be relevant to the decision of the Board of Zoning Appeals,
but a finding that the difficulty was self-created shall not in and
of itself preclude the granting of the area variance.)
(b)
The Board of Appeals, in the granting of area variances, shall
grant the minimum area 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.
(c)
In addition to the application requirements from time to time
established pursuant to law and this chapter, applications for an
area variance shall contain a typewritten narrative explaining what
the application is for, and how the project meets or exceeds all of
the criteria for an area variance.
(d)
The Board of Appeals shall, in the granting of 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. 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 area variance may have on the neighborhood
or community. If the applicant refuses to accept such requirements
and conditions, the area variance shall be denied.
E.
Special permit. On application, supplementing an application
to the Zoning Officer for a permit or certificate of occupancy, the
Board of Appeals may authorize the Zoning Officer to grant a permit
for any use for which approval of the Board is required by this chapter.
The Board shall, pursuant to law, hold a public hearing on any such
application prior to acting thereon. In authorizing such permit, the
Board may designate appropriate conditions in harmony with the following
standards:
[Amended 2-5-2013 by L.L. No. 1-2013]
(1)
The use shall be of such location, size and character
that it will be in harmony with the appropriate and orderly development
of the district in which it is situated and will not be detrimental
to the orderly development of adjacent districts and uses.
(2)
The location and size of the use, the nature and intensity
of the operations involved in or conducted in connection therewith,
its site layout and its relation to streets giving access to it shall
be such that traffic to and from the use and the assembly of persons
in connection with it will not be hazardous or inconvenient to the
neighborhood or conflict with the normal traffic of the neighborhood.
In applying this standard, the Board shall consider, among other things,
convenient routes of pedestrian traffic, particularly of children,
relation to main traffic thoroughfares and to street and road intersections,
and the general character and intensity of development of the neighborhood.
(3)
The location and height of building, the location,
nature and height of walls and fences and the nature and extent of
landscaping on the site shall be such that the use will not hinder
or discourage the proper development and use of adjacent land and
buildings or impair the value thereof.
[Amended 2-5-2013 by L.L. No. 1-2013]
No use shall be considered to be or to be allowed as a special permit use except and unless such use is specified as being a special permit use (as to the district in question) in §§ 293-10B, 293-11B, 293-14B(2), 293-15B(2), 293-16B(2), or 293-18B(2) of this chapter. In addition to any other applicable regulations and requirements, the following standards shall apply with respect to the special permit uses indicated below:
A.
Public utility station or structure. Such uses shall
include electric or telephone substations, transformers and auxiliary
apparatus serving a distribution area and water pumping stations in
any residential district and shall be subject to the following regulations:
(1)
Such facility shall not be located on a residential
street (unless no other site is available) and shall be so located
as to draw a minimum of vehicular traffic to and through such streets.
(2)
The location, design and operation of such facility
shall not adversely affect the character of the surrounding residential
area.
B.
Drive-in restaurant or refreshment stand. In addition
to meeting the minimum yard and lot coverage requirements, such businesses,
where persons are served in automobiles or out-of-doors, shall be
subject to the following regulations:
(1)
Such use shall be not closer than 200 feet to a residence
district (the use referring to the principal building).
(2)
Such use shall have frontage on a public street.
(3)
Ingress and egress shall be so designed as to minimize
traffic congestion, and, for this purpose, the number and location
of driveways shall be subject to review and approval of the Board
of Appeals.
(4)
Such use shall be adequately fenced and screened from
any adjacent residential property and lighting shall be directed away
from adjacent property.
C.
Auto wash. In addition to meeting the minimum yard
and lot coverage requirements, any auto wash establishment shall be
subject to the following regulations:
(1)
Such establishment shall not be closer than 200 feet
to a residence district.
(2)
The wash water shall not pollute any stream nor create
a hazard because of surface drainage.
(3)
The number and location of driveways shall be subject
to review and approval of the Board of Appeals.
(4)
Such establishment, in addition to meeting the off-street parking requirements of Schedule B,[1] shall provide three stacking spaces per bay on the lot
to prevent the waiting of automobiles in the public street.
[1]
Editor's Note: Schedule B is included as an attachment to this chapter.
D.
(Reserved)
E.
Junkyard or automobile junkyard. No junkyard or automobile
junkyard shall be operated or established hereafter in any area of
the Village.
F.
Swimming pool.
(1)
A swimming pool is any body of water or receptacle
for water having a depth at any point greater than two feet, used
or intended to be used for swimming or bathing, and constructed, installed
or maintained in or above the ground outside any building.
(2)
Private outdoor swimming pools which are accessory
to a principal residential use shall be regulated as follows:
(a)
Such pool may be erected only on the same lot
with the principal structure.
(b)
Such pool may be erected only in the side or
rear yard of such structure and not less than 10 feet from the side
or rear lot line.
(c)
Such pool shall be adequately fenced and screened.
(d)
Such pool shall not adversely affect the character
of any residential neighborhood.
