A.
A Board of Zoning Appeals is hereby established. Said
Board shall consist of five members appointed by the Mayor of the
Board of Trustees with the approval of a majority of the Board of
Trustees for terms of three years. All appointees to fill vacancies
shall be appointed for the unexpired term. Said Board shall elect
a Chairman and such other officials and employees as shall be necessary.
The members of the Board shall receive compensation for their services
fixed by the Board of Trustees. The Chairman or in his absence the
Acting Chairman may administer oaths and compel the attendance of
witnesses. The Board of Zoning Appeals shall hear and decide appeals
from and review any order, requirement, decision or determination
made by the Building Inspector. The Board of Zoning Appeals, by majority
vote of its members, shall be authorized to appoint a Secretary to
the Board of Zoning Appeals subject to a salary and benefit appointment
by the Board of Trustees.
[Amended 5-15-2012 by L.L. No. 2-2012]
B.
Alternate members.
[Added 10-17-2000 by L.L. No. 7-2000]
(1)
Purpose. In order to permit the Zoning Board of Appeals
to transact business in those instances when absence or conflict of
interest of one or more members precludes a full membership of five
members from considering a particular matter, it is deemed advantageous
by the Board of Trustees to enact a local law superseding Village
Law § 7712 to provide for appointment of alternate (ad hoc)
members to the Zoning Board of Appeals.
(2)
ALTERNATIVE (AD HOC) MEMBER
ZONING BOARD OF APPEALS
Definitions. As used in this section, the following
terms shall have the meanings indicated:
An individual appointed by the Village Board to serve the
Village Board of Zoning Board of Appeals when a regular member is
unable to participate on an application or mailer before the Board
as provided herein.
The Zoning Board of Appeals of the Village of New Hyde Park as established by the Village Board of Trustees under § 195-35 pursuant to the provisions of § 712 of the Village Law.
(3)
Appointment; term; powers; applicability of state
law.
(a)
The Village Board of the Village of New Hyde
Park may, in any year it deems necessary, appoint alternate (ad hoc)
members to the Zoning Board of Appeals to serve as provided in this
section.
(b)
The number of alternate (ad hoc) members so
appointed pursuant to this section in any year shall not exceed three.
(c)
Each alternate (ad hoc) member shall be appointed
for a one-year term of office.
(d)
The Chairperson of the Zoning Board of Appeals
shall assign the alternate (ad hoc) members as necessary when absence
of regular members of the Board or a conflict of interest of regular
members of the Board would otherwise prevent five members of the Board
from considering any pending mailer.
(e)
Once designated to serve on a particular mailer
before the Board, the alternate (ad hoc) members shall have the same
powers and duties as regular members of the Board until the mailer
is concluded.
(f)
Any determination by the Board consisting of
alternate (ad hoc) members shall have the same weight and be entitled
to the same authority as the act or deed of the regular Zoning Board,
and all laws, statutes and regulations shall apply and be applied
with equal force and effect.
(g)
Alternate (ad hoc) members appointed pursuant
to this section shall be paid for their respective services as fixed
by resolution of the Village Board.
(4)
Authority. This subsection is enacted pursuant to
the authority of § 10 of the New York State Municipal Home
Rule Law and § 10 of the New York State Statute of Local
Governments. It is the intent of the Village Board of Trustees, pursuant
to § 10 of the Municipal Home Rule Law, to supersede the
provisions of § 7-712 of the Village Law relating to the
appointment of members to Village Zoning Boards of Appeal.
The Board of Zoning Appeals may, in a specific
case, after public notice and hearing and subject to appropriate conditions
and safeguards, determine and vary the application of the regulations
herein established in harmony with their general purpose and intent
without changing the boundaries of the respective zones, as follows:
A.
Where a zone boundary line divides a lot in a single
ownership at the time of the passage of this chapter, permit a use
authorized on either portion of such lot to extend to the entire lot;
but not more than 50 feet beyond the boundary line of the zone in
which such use is authorized.
B.
Permit the extension of a nonconforming use or building
upon the lot occupied by such use or building at the time of the passage
of this chapter.
C.
Permit the erection of an additional building upon
a lot occupied at the time of the passage of this chapter by a business
or industrial establishment and which additional building is a part
of such establishment where carrying out the strict letter of the
provisions would result in practical difficulties or unnecessary hardship.
D.
Grant in developed sections of the Village temporary
and conditional permits for not more than two years for structures
and uses in contravention of the use regulations controlling residence
zones; provided that such uses are important to the development of
such undeveloped sections, and also provided that such uses are not
prejudicial to adjoining and neighboring sections already developed.
E.
Exempt a proposed building, either in whole or in
part, from the front yard requirement. This relief shall, however,
be granted only in cases where the proposed building adjoins on either
or both sides of buildings that do not conform to the minimum setback
line or where compliance with the minimum setback line would cause
unnecessary hardship to the owner without any compensating benefit
to the community.
F.
Adopt from time to time such rules and regulations
as may be deemed necessary to carry into effect the provisions of
this chapter.
G.
Vary any requirement of this chapter in harmony with
its general purpose and intent, so that substantial justice may be
done. This authority shall be exercised in instances where there are
practical difficulties or unnecessary hardships in the way of carrying
out the strict letter of this chapter and in a manner to secure the
public health, safety and general welfare.
H.
Permit, as a special use in a business or industrial zone only, the construction, extension, establishment, reconstruction, conversion, maintenance and use of a motor vehicle service station and/or motor vehicle repair shop, as those terms and uses are separately defined in § 195-1 of this chapter, and all accessory uses and different collateral uses and structures as may be authorized or permitted by or under the provisions of this chapter, subject to the specific provisions and limitations set forth in this subsection and Subsection N of this section:
[Amended 10-19-1982 by L.L. No. 6-1982; 7-7-1988 by L.L. No. 1-1988; 2-1-1990 by L.L. No. 1-1990]
(1)
Every person seeking a special use permit under the
provisions of this subsection shall make a formal application for
the same, on forms approved and provided for such purpose by the Board
of Zoning Appeals. Such application shall be accompanied by such other
papers, documents or materials as may be required by this chapter,
by other ordinance or local law of the Village, by state statute or
by the rules and regulations of said Board of Zoning Appeals, together
with the following items:
(a)
A plot plan or survey print, prepared and certified
by a registered architect, land surveyor or licensed engineer and
dated not more than six months prior to the date of filing of such
application with the Board of Zoning Appeals; said plot plan or survey
shall clearly show the size and configuration of the subject premises,
the street(s) upon which it fronts, the distance and location of all
intersecting street(s), and the location and dimensions of all structures,
improvements, tanks, storage facilities and the like, whether above
or below grade, drawn to scale;
(b)
A duly subscribed and notarized "consent and
waiver" form, authorizing the inspection of the premises and all structures,
uses and facilities thereon, during reasonable business hours, by
members of the Village Building and Zoning Departments, Village Code
Enforcement Officers and their respective agents and employees, in
order to determine compliance with the several provisions of this
chapter, of this subsection and of any conditions or requirements
imposed by the Board of Zoning Appeals in the special permit requested;
and
(c)
A certified copy of the deed to the premises
if the applicant be the owner of the same, or of the lease or leasehold
agreement if the applicant be a tenant or lessee of said premises.
(2)
Before granting any special permit applied for under
this subsection, the Board of Zoning Appeals shall make the following
findings of fact, upon competent evidence presented to it at the hearing
on such application:
(a)
That the proposed use will not prevent the orderly
and reasonable use and enjoyment of properties and uses adjacent to
or within the neighboring areas of, the subject premises, especially
concerning residential uses in such areas or zones.
(b)
That the proposed use will not encumber, prevent
or otherwise adversely affect legal uses established adjacent to or
within a radius of 200 feet of the subject premises.
(c)
That the health, safety, comfort, convenience
and general welfare of the Village and of the public at large will
not be impaired or adversely affected by the proposed use.
(d)
That the proposed use will not deprive surrounding
uses of adequate light and air and will not burden the same with undue
noise, odors, fumes or other adverse environmental hazards arising
out of or in connection with such proposed use, and will not otherwise
seriously disrupt the characteristics of the community and environment
within the surrounding areas and zones.
(e)
That the proposed use will not, by its nature
or incidental to its nature, create undue hazards to the life, limb
or health of the public, especially those residing in or occupying
the surrounding areas to the subject premises, due to increased hazards
of fire, explosion or other serious consequence.
(f)
That the proposed use, by its nature or due
to the consequences of its operations, will not result in an accumulation
of junk, wastes, junked vehicles or auto parts, noxious or dangerous
fumes or effluents (whether solid, liquid, gaseous or otherwise),
sewage, refuse or other rubbish.
(g)
That the proposed use shall not increase congestion
of streets and sidewalks, or create interference with their free and
unfettered use by the public.
(h)
That the proposed use shall be in harmony with,
and will promote the general purposes and intent of the Building Zone
Code and Comprehensive Plan embraced and evidenced therein, as well
as being in harmony with the general and prevailing character of the
neighborhood in which such proposed use will exist.
(3)
In making its findings, the Board of Zoning Appeals
shall give due consideration to the following factors, and may impose
such conditions or requirements in its grant of such special permit
as it may deem necessary to safeguard and protect such considerations:
(a)
The characteristics of existing and probable
uses in the district, and the peculiar suitability of such district
for the location and maintenance of the proposed use.
(b)
The conservation of property values and preservation
of orderly and reasonable use and enjoyment of surrounding properties,
especially established legal uses.
(c)
The effect of the proposed use upon traffic
and pedestrian congestion of the public streets, sidewalks and other
open public areas or rights-of-way.
(d)
The existence or availability of safety measures
and other pertinent safeguards against fire, explosion, noxious or
dangerous noises, fumes or odors and effluents, such as gas leaks,
chemical spills, etc., to be incorporated into the operation or construction
of the proposed use site.
(e)
The availability of adequate and proper public
facilities for the removal, storage or treatment of sewage, refuse
or other waste products or effluents (whether solid, liquid, gaseous
or otherwise), that may be caused or created by or as a result of
the proposed use.
(f)
Whether the proposed use will interfere with,
or create a burden upon, existing or proposed public services, public
streets, parking or other facilities, or public recreational facilities.
(g)
Whether surfaced off-street parking space incidental
to the proposed use is necessary and such space is adequately and
reasonably available on the premises of such proposed use.
(h)
Whether fire or other emergency apparatus will
be afforded sufficient and adequate ingress to and egress from the
proposed use premises, in the event of fire or other emergency or
disaster, so as to protect or effect rescue of persons in or about
the premises and the structures and buildings on the premises and
on adjoining or adjacent properties.
(i)
Whether the proposed use will cause an overcrowding
of land with people, vehicles, structures or other devices, either
temporarily or permanently, resulting in increased fire or other hazard,
or in danger to the public or properties in the surrounding area.
(j)
Whether sufficient open and unencumbered ingress
and egress to the premises, structures and buildings thereon will
be afforded to members of the public and private motor vehicles using
or entering upon the premises, without undue congestion of adjoining
streets or sidewalks.
(k)
Whether the hours of operation of the proposed
use, and any accessory or incidental uses or activities on the same
premises, would result in an unreasonable impairment of, or interference
with, legitimate uses and structures in the surrounding environs,
especially residential uses and/or structures in the neighborhood,
unless reasonably and strictly limited, so as to balance the conflicting
interests of nearby uses and structures with the commercial and proprietary
interests of the proposed use. It is the specific finding of the Board
of Trustees that all or nearly all available sites for the operation
of motor vehicle service stations and/or repair shops, whether presently
existing or potentially usable as such in the future, either adjoin
residential lots or structures and unrelated business uses or are
so physically near and proximate thereto that, by necessity, the operation
of a service station or repair shop on any such sites would have immediate,
tangible and substantial impact upon the use and enjoyment of such
adjoining and surrounding uses and structures; that the unlimited,
twenty-four-hour operation of either a service station or a repair
shop, or any accessory or incidental uses thereto, would place an
unacceptable burden on adjoining and surrounding uses and structures
and would amount to a public nuisance due to the unabated noise, traffic,
odors and congestion created thereby; and that because of the special
problems created by, and attendant with, such special uses, it is
both desirable and necessary to strictly limit their adverse impact
upon the surrounding community by the limitation of their hours of
operation, thereby ensuring and preserving a reasonable period of
time each and every day during which surrounding uses may enjoy relative
freedom from the noise, traffic, odors and congestion, and other adverse
by-products which are necessarily generated by the operation of the
subject special uses. Accordingly, the provisions of any other law,
statute, ordinance, code, rule or regulation to the contrary notwithstanding,
in no event shall any motor vehicle service station or motor vehicle
repair shop operate or be operated, nor shall any authorization or
permission be given to operate the same, between the hours of 11:00
p.m. and 6:00 a.m., inclusive, prevailing time. This prohibition shall
extend to all uses, conduct or other operations maintained on the
premises, whether primary, accessory or incidental, without exception,
and this prohibition shall be mandatory with respect to each and every
service station and repair shop at any time located, operated, used
or maintained within the territorial boundaries of the Village, whether
by special permit or otherwise. While the stated hours of prohibited
operation may not and shall not be reduced, suspended, alternated
or otherwise modified to result in different periods of lesser hours,
the Board of Zoning Appeals is hereby specifically authorized to increase
the hours of prohibited operation, in a given case, where and when
the evidence and circumstances in such case support a finding by such
Board that an increase is both warranted and reasonable.
(4)
The Board of Zoning Appeals shall, in granting any
such permit provided for herein, impose such other additional, reasonable
and appropriate conditions and restrictions as it may deem necessary
or advisable to preserve and protect, foster and maintain the health,
safety, convenience, comfort, morals and general welfare of the community
and public at large, and shall consider the views of owners of adjacent
and surrounding properties relevant to such issues. Every permit issued,
as provided for herein, shall set forth as mandatory conditions of
issuance, the following limitations and prohibitions, in satisfactory
form, based on the size, location and circumstances in each case:
(a)
That no vehicle may be stored, parked, left
or serviced in any manner, or for any length of time, in, on or upon
the public streets, sidewalks or other public areas, or in or upon
the lot or part thereof of any property not covered by the special
use permit.
(b)
No junk vehicle or unregistered vehicle may
at any time be stored, parked or left unattended outside the enclosed
confines of the buildings on the subject premises.
(c)
No vehicle may be parked or stored outside of
the buildings on such premises, overnight between the hours of 8:00
p.m. and 6:00 a.m., in excess of the following formula: one vehicle
for each 1,000 square feet of open lot area of the premises; and in
no event shall more than eight vehicles be so stored or parked on
such premises, regardless of lot size or available open lot area of
the same.
(d)
No vehicle may be stored, parked or left unattended
within a radius of 20 feet of any pump, pumping device or pumping
tank situated on the subject premises, at any time, except such vehicles
which are actually receiving fuel into their fuel tanks from any such
pump or device.
(e)
No servicing or other work shall at any time
be commenced, continued or otherwise proceed on any vehicle in the
streets or sidewalks fronting the premises or surrounding areas nor
on any part or portion of the premises except for the interior service
bays and the area immediately fronting and adjacent thereto in or
upon such premises and the buildings thereon.
(f)
No vehicles may be parked or stored on the premises
overnight, during the aforesaid hours above, except those of legitimate
customers of the holder of the special use permit, awaiting servicing
or repair, the vehicles actually owned or leased by said permit holder
or the vehicles owned or leased by the employees of the permit holder.
(5)
No other use, structure or activity, whether accessory
to the special use or otherwise, which it not reasonably and necessarily
related thereto and incidental to the primary operation on the premises,
shall be constructed, located, established, operated, engaged in or
otherwise maintained on the same premises, during the tenure of the
special use, except by specific and express authorization and permission
of the Board of Zoning Appeals, as evidenced in and limited by, the
decision of the Board granting such special use permit. A copy of
the special permit and all restrictions and limitations set forth
therein shall at all times be posted conspicuously in or upon the
premises, and shall be subject to examination by any person visiting
or entering in or upon the premises for any lawful purpose.
(a)
In considering any application for permission to maintain a separate, unrelated use, structure or activity on the same premises as the special use governed by this subsection, the Board of Zoning Appeals shall consider all of the factors and make all of the findings as provided for under Subsection H(2), (3) and (4) of this section, with respect to the primary use, as applied to the unrelated use, structure or activity, and shall additionally determine whether such unrelated use, structure or activity is compatible with the special use and with surrounding uses and structures in the neighborhood; whether the area of the subject premises can reasonably support the proposed or existing primary use and any proposed unrelated use at the same time; and whether additional traffic, either pedestrian or vehicular, can be reasonably accommodated by both the subject parcel and the surrounding streets, sidewalks and other public rights-of-way.
(b)
In its determinations, the Board of Zoning Appeals
shall require additional off-street parking spaces on the subject
premises to be devoted solely to any such unrelated proposed use on
the premises, using a formula of one off-street parking space, having
minimal dimensions of at least 200 square feet, for each 50 square
feet of the premises or any portion thereof devoted to such unrelated
use, with a mandatory minimum of two such spaces in any event, regardless
of the actual square footage so devoted to such unrelated use.
(c)
For purposes of this subsection, the following
uses are hereby deemed to be the sole uses, structures or activities
reasonably and necessarily related to the operation of a motor vehicle
repair shop, a motor vehicle service station, or both such special
uses:
[1]
Motor vehicle repair shop: construction, maintenance
and use of interior spray booths, hydraulic equipment; inventory and
storage of paints, lacquers and thinners for automotive repainting;
inventory and storage of motor vehicle chassis and body parts when
actually held for use in repairs made on the premises.
[2]
Motor vehicle service station: construction,
maintenance and use of exterior gasoline pumps and service islands,
exterior, below-grade and lined gasoline storage tanks and exterior,
below-grade and lined waste oil storage tanks; installation of exterior
air pumps and hoses for inflation of tires.
[3]
Both such uses: construction, maintenance and
use of a garage, interior service bays, interior lifts, auto exhaust
filtering and ventilation equipment, air pumps and compressors; installation
and use of hydraulic, electrical, pneumatic or hand operated tools,
machinery or equipment within the confines of the premises, for the
service and repair of motor vehicles; installation and use within
the confines of the building of automotive diagnostic equipment and
machinery; inventory and storage of tires, mufflers, exhaust pipes,
automotive lubricants, fluids and greases, vehicle coolants/antifreeze
and related automotive systems repair and tuneup parts, when held
on the premises for sale and installation while vehicles are on the
premises; examination, testing and inspection of automotive engines,
parts and systems; vehicular inspections for preparation of estimates
of repair; erections, installation and use of an office for the keeping
of books of account; a cash register, bills and billings material
and related and necessary office supplies; erection, construction,
maintenance and use of employee and/or customer rest rooms, waiting
rooms, lounges or service areas; installation and maintenance on the
premises of not more than three coin-operated vending machines for
the sale and dispensing of newspapers, candy, soft drinks, coffee,
cigarettes and wrapped, nonperishable foodstuffs; inventory, storage
and sale of maps, atlases, cigarettes, candy, newspapers, nonperishable
wrapped foodstuffs, and car-care products by over-the-counter sale,
when the aggregate counter, shelf, display or other space used or
devoted to all such items does not exceed 40 cubic feet in area; the
parking and temporary storage of motor vehicles on the premises when
the same are owned by employees working on the premises or are owned
by customers who have left the same on premises for immediate and
ongoing service or repair; the installation, maintenance and storage
on the premises of sanitary dumpsters or carts for refuse and garbage
generated by uses, operations and activities on the premises, when
such dumpsters and carts do not exceed five cubic yards in capacity;
the installation and maintenance on the premises of signs, lighting
and fences as permitted by this chapter; and the maintenance, parking
or storage of one tow vehicle in connection with the primary permitted
special use.[1]
[1]
Editor's Note: Former Subsection H(6), regarding
termination and violations of a special use permit, which immediately
followed this subsection, was repealed 2-1-1990 by L.L. No. 1-1990.
I.
Permit the erection of a four-car garage and permit
the storage of not more than two commercial trucks in an accessory
garage in a residence zone.
J.
Permit any public utility in a restricted zone.
K.
Permit in a residence zone, upon the filing with the
Building Inspector of the written consents of the owners of 50% of
the frontage of the land within 200 feet of the property in question,
a boardinghouse, a hotel, a private school, an asylum, a club, a lodge,
a social community center, a recreation building and a philanthropic
or eleemosynary use or institution.
L.
Second kitchens.
[Added 9-6-77 by L.L. No. 5-1977]
(1)
Permit, as a special exception in a residence zone, the construction, extension, establishment, reconstruction, conversion, maintenance and use of a second, separate, above-grade apartment and/or kitchen, in a one-family dwelling, subject to the specific provisions, conditions and limitations set forth in this subsection and Subsection N of this section.
[Amended 2-1-1990 by L.L. No. 1-1990]
(2)
Said special exception permit may be granted only
upon compliance by the applicant with the following requirements:
(a)
The submission by the applicant of a verified
application upon forms acceptable to the Board of Zoning Appeals for
each and every period for which the permit is to be applicable.
(b)
The submission by the applicant with each such
application of a plot plan prepared by a registered architect, a licensed
professional engineer or licensed surveyor, showing the location of
each such structure proposed to be erected or modified on the plot
which is the subject of said application and showing the dimensions
of each such structure.
(c)
The payment by the applicant of the nonrefundable fees provided for under § 195-39A of this chapter.
[Amended 2-1-1990 by L.L. No. 1-1990]
(d)
The filing by the applicant with the Village
Clerk of the applicant's consent to inspections of the subject premises
by the Village Building Inspector during reasonable hours to determine
whether use of the premises subsequent to the grant of the special
exception permit is in compliance with the provisions of said permit.
(e)
The certification by the applicant that the
primary residence and occupancy in any such dwelling will be by the
owner thereof for the duration of any permit granted hereunder.
(f)
The certification by the applicant, on an annual basis, that any separate apartment and/or separate kitchen permitted hereunder is used and occupied solely by members of the household meeting the definition of family as set forth in § 195-21 of this chapter.
[Amended 2-1-1990 by L.L. No. 1-1990]
(g)
The submission by the applicant of a restrictive
covenant to be filed in the office of the Nassau County Clerk by the
applicant at the applicant's expense, which covenant shall declare
the limitations of the use of any premises granted a permit hereunder
and set forth the grounds for termination of such permit as hereinafter
provided.
(3)
Before the Board of Zoning Appeals shall grant the
permit provided for herein, it shall find, upon the evidence presented:
(a)
That the use will not prevent the orderly and
reasonable use of adjacent properties or of properties in adjacent
use zones.
(b)
That the use will not prevent the orderly and
reasonable use of permitted or legally established uses in the zone
wherein the proposed use is to be located or of permitted and legally
established uses in adjacent use zones.
(c)
That the health, safety, welfare, comfort, convenience
and order of the Village will not be adversely affected by the proposed
use.
(d)
That the use will be in harmony with and promote
the general purposes and intent of the Building Zone Code.
(4)
In making such finding, the Board of Zoning Appeals
shall give consideration, among other things, to:
(a)
The promotion and enhancement of traditional
family needs and family values.
(b)
The character of existing and probable uses
in the district, and the peculiar suitability of such district for
the location of any such permissive use.
(c)
The conservation of property values and the
encouragement of the most appropriate uses of land.
(d)
The effect that the proposed use may have upon
traffic congestion on public streets.
(e)
The availability of adequate and proper public
or private facilities for removal of sewage, refuse or effluent, whether
liquid, solid, gaseous or otherwise, that may be caused or created
by or as a result of the use.
(f)
Whether said use will cause undue interference
with existing or proposed public parking or recreational facilities.
(g)
Whether bituminous surfaced off-street parking
space incidental to the use is necessary, and whether such space is
reasonably available.
(h)
Whether a hazard to life, limb or property because
of fire, flood, erosion or panic may be created by reason or as a
result of the use or by the proposed structure, or by the inaccessibility
of the property or structure thereon for the convenient entry and
operation of fire and other emergency apparatus or by the undue concentration
of persons upon such plot.
(i)
Whether the proposed use or the proposed structure
will cause an overcrowding of land or undue concentration of population.
(j)
Whether the plot area is sufficient, appropriate
and adequate for the proposed use and the reasonable anticipated operation
and expansion thereof.
(k)
Whether sufficient ingress and egress to the
residence is provided.
(5)
The Board of Zoning Appeals shall, in granting the
permit provided for herein, impose such additional, reasonable and
appropriate conditions and restrictions as it may deem necessary to
promote and maintain the health, safety, morals and general welfare
of the community, and it shall consider the views of the owners of
adjoining property.[2]
[2]
Editor's Note: Former Subsection L(6), regarding
the termination of special exception permits, which immediately followed
this subsection, was repealed 2-1-1990 by L.L. No. 1-1990.
M.
Renewals.
[Added 9-6-1977 by L.L. No. 5-1977; 2-1-1990 by L.L. No. 1-1990]
(1)
Permit, as a special exception in a residence zone, the construction, extension, establishment, conversion, maintenance and use of a second separate, above-grade apartment and/or kitchen, in a one-family dwelling, subject to the specific provisions, conditions and limitations set forth in this subsection and Subsection N of this section.
(2)
Said special permit may be granted only upon compliance by the applicant with the requirements set forth in Subsection L(2)(a), (b), (c), (d), (e) and (g), and the following additional requirements:
(a)
The certification by the applicant(s) that applicant(s)
are one or more of the owners in fee of the subject premises and hold
title to at least an undivided 1/2 interest in and to the premises.
(b)
Certification that the applicant(s) owning at
least an undivided 1/2 interest in the premises, are over the age
of 62 years, except that if the applicants are married to each other,
only one such spouse shall be at least 62 years of age.
(c)
Certification, at least annually, that the combined
household gross taxable earned income of the applicants does not exceed
$15,000 in the aggregate.
(d)
Certification, at least annually, that the primary
dwelling unit and/or kitchen on the premises is used and occupied
solely by applicant(s) and their family members and that the second
apartment and/or kitchen on the premises is used and occupied solely
by a separate family household headed by at least one or more persons
over the age of 62 years upon whom all such separate family household
members are legally and financially dependent.
(e)
Certification, at least annually, of the amount
of rent charged or to be charged on a monthly or other pertinent periodic
basis to every person using or occupying the separate apartment and/or
kitchen in the subject premises. For such purposes, a copy of any
lease or rental agreement, duly signed by all parties and covering
the period in question, shall be sufficient and presumptive evidence
of the facts stated therein.
N.
Public hearing; filing.
[Added 2-1-1990 by L.L. No. 1-1990]
(1)
Every special permit granted under or pursuant to the provisions of Subsections H, L and M of this section, hereinabove, shall continue in full force and effect and without durational limitation or other fixed expiration upon the special use permitted thereby until the same shall be suspended, modified, amended, terminated or revoked by subsequent order of the Board of Zoning Appeals. No such order shall be made or entered except after a duly noticed public hearing, at which the Board shall hear and determine all charges, violations or other specified basis upon which such permit is sought to be amended, terminated or otherwise modified or impaired, and shall allow any evidence or testimony necessary or proper to such determination. Notice of such hearing, including the time, date and place thereof and a specification of the charges or other basis affecting or purporting to affect the status of such permit shall be made, in writing, and shall be served upon the holder or grantee of the subject permit and all other persons required to be notified under the provisions of this chapter or pursuant to the rules and regulations of the Board in the manner and in the time required by this chapter and/or such rules and regulations.
(2)
Every special use or special exception permit heretofore granted prior to February 1, 1990, under the provisions of Subsection H, L or M hereinabove, as then previously enacted (hereafter referred to, jointly and severally, as the "predecessor provisions") and which was due or shall hereafter become due to expire on or after August 1, 1989, by operation of any durational condition or limitation set forth in the language or text of such predecessor provisions or set forth in the language or text of any decision, determination or order of the Board of Zoning Appeals made or adopted pursuant to the power or authority of such predecessor provisions shall be and the same hereby is made and deemed amended and continued in all other respects without further regard or legal effect to any such durational limitation or expiration period and shall be construed and interpreted for all purposes as if the same were granted on or after February 1, 1990, in full conformity with the requirements of this subsection.
(3)
Every person holding any special permit granted under the provisions of Subsection H, L or M hereinabove, or any predecessor provisions thereof shall annually file and record with the Clerk of the Village such restrictive covenants, certifications, affidavits, inspection reports, registration statements or other documents or papers as may be required under the provisions of this chapter or by rule or regulation of the Board of Zoning Appeals promulgated and adopted to give effect to such provisions, as a condition of such permit. Any permit holder or grantee failing to file, record or submit any such documents or failing to pay any fee, charge or expense required by or under this chapter, within the time provided, shall be subject to the suspension, modification, termination or revocation of such permit and all rights or privileges extended or obtained thereby.
O.
Basement/cellar kitchen. Permit, as a special exception
in a residence zone, the construction, extension, establishment, reconstruction,
conversion, maintenance and use of a second, separate, basement/cellar
kitchen, in a one-family dwelling, subject to the following:
[Added 1-24-2006 by L.L. No. 3-2006]
(1)
Applicant with an existing three-piece bathroom (toilet,
sink and shower/tub) is prohibited from installing a basement/cellar
kitchen.
(2)
Applicant with an existing basement/cellar kitchen
is prohibited from installing a three-piece bathroom (toilet, sink
and shower/tub) and will only be permitted to install a water closet
and sink.
[Added 11-16-1999 by L.L. No. 5-1999]
A.
Subject to the provisions of this section, and in
the interest of furthering public policies applicable to the accommodation
of persons with serious physical or other effective disabilities,
the Superintendent of Buildings is hereby specifically authorized
and empowered, in a proper case, to issue a special permit, without
prior variance by, or other prior review and approval of, the Board
of Zoning Appeals, to allow the construction and maintenance of so-called
handicap ramps and other similar or related structural devices or
appurtenances (hereinafter referred to as "disability facilities")
accessory to lawful one- and two-family dwellings. Such a special
permit may be issued either to the owner of such a dwelling or, upon
the prior written consent and approval of such owner being filed with
such officer, to the principal lessee of any lawful dwelling unit
located in such a dwelling, provided that such owner or lessee, or
another family or household member residing with such person, is a
legal occupant of said dwelling or dwelling unit and currently suffers
from a serious and certifiable disability which restricts his/her
access to and from such residence.
B.
A special permit authorized by this section shall
be issuable solely for the purpose of allowing the construction and
maintenance of requested disability facilities in or along any mandatory
open front, side or rear yards of the dwelling premises in excess
of any setback, lot coverage or other applicable area or use limitations
otherwise prescribed under this chapter or any other chapter of the
Village Code. Such a permit shall be issued on a temporary basis not
to exceed one calendar year, but may be renewed indefinitely thereafter,
provided that a qualified and certifiably disabled person shall continue
to occupy and reside in the dwelling premises.
C.
Prior to the issuance of a special permit authorized
by this section, the applicant therefor shall supply to or file with
the Building Department the following documents or other information
relative to the construction and maintenance of the proposed disability
facilities
(1)
A completed application for a building permit
and temporary certificate of occupancy and a set of building plans
and a plot plan or survey accurately drawn to scale, showing the location,
dimensions, elevations and slope of, and identifying the materials
and means of construction to be used for, the proposed facilities.
(2)
A written and dated letter or certificate, signed
or subscribed by a duly licensed physician, nurse practitioner or
physical therapist, identifying the nature and extent of the disability
suffered by the person for whose benefit such disability facilities
are requested, and attesting to the current need for such facilities.
(3)
Any other information or documentation which
the Superintendent of Buildings may require in order to make suitable
findings, reach reasonable conclusions and render a proper determination
with respect to the issuance of the special permit.
D.
In evaluating an application for a special permit authorized by this section, the Building Superintendent shall take into consideration all of the factors itemized under § 195-36L(4) of this chapter, and shall make the same findings relative thereto as are set forth and enumerated under Subsection L(3) of that said section; provided, however, that the benefit to the applicant shall be given priority and the greatest possible weight in comparison to all other factors. In reaching a determination as to whether to grant such special permit, the Superintendent may impose such additional and appropriate conditions, restrictions or other requirements as he/she may reasonably determine to be necessary to promote, preserve or maintain substantial conformance, under the circumstances, with all other provisions of this chapter in the interests of individual or public health, safety, peace and good order.
E.
A written copy of the decision either granting or
denying a special permit authorized by this section and applied for
by any applicant shall be filed of record in the office of the Building
Department within five days of the date such decision is rendered,
and any person aggrieved by such decision may file an appeal thereof
with the Board of Zoning Appeals within 30 days of the date such decision
is filed. An appeal to the Board of Zoning Appeals shall be docketed
and heard in the same manner as any other appeal and said Board shall
make its own findings and reach its own conclusions with respect thereto
as if the jurisdiction and authority to grant such special permit
under this section were originally vested in such Board.
[Added 5-6-2008 by L.L. No. 3-2008]
A.
Expiration, lapse, extension and reinstatement of
variances. Any variance granted pursuant to this chapter shall automatically
expire and be of no further force and effect six months after the
granting thereof unless, within such six-month period, substantial
construction shall have been commenced. Such construction must be
completed within one year of the date of commencement of substantial
construction. The Zoning Board of Appeals shall be authorized, upon
application and without hearing, to grant extensions of the variance
for periods not to exceed six months in duration or to reinstate a
lapsed variance for good cause shown. Any variance issued prior to
the effective date of this section shall be deemed to have been issued
on such effective date.
B.
Extinguishment of variance. Whenever a use established
pursuant to a variance shall have been abandoned for a term of six
months, or whenever the location of such a use is substantially destroyed,
the land, building or structure in which said use shall have existed
shall not thereafter be used for the previously established use. Such
six-month period of abandonment may be discontinued only by 30 or
more consecutive business days of operation. A use shall be "substantially
destroyed" if the cost to repair and replace the structure in which
it is located exceeds 50% of the current structural replacement value
thereof.
C.
Revocation of variance. Any variance granted pursuant
to this chapter shall be revocable on the order of the Zoning Board
of Appeals at any time upon the failure of the owner or operator of
the use or structure covered by the variance to observe all requirements
of this chapter with respect to the maintenance and conduct of the
use or structure or upon failure to observe all conditions in connection
with such variance which was designated by the Zoning Board of Appeals
issuing the same. Prior to revoking any such variance, the Zoning
Board of Appeals shall give the holder of the variance at least 10
days' written notice of violation. If within such 10 days the variance
holder so requests, the Zoning Board of Appeals shall hold a hearing
on the revocation of such variance and shall give the applicant for
the hearing at least 10 days' written notice thereof either by certified
mail, return receipt requested, or by personal service. The foregoing
provisions shall not be deemed to preclude the use of any other remedy
by the Zoning Board of Appeals or by any enforcement agent of the
Village to compel compliance with any conditions of the variance.
The violation of any condition imposed by the Zoning Board of Appeals
as part of a variance shall constitute a violation of this chapter.
All meetings of the Board of Zoning Appeals
shall be public. The presence of four members shall be necessary for
a quorum. The Clerk to the Board shall keep minutes of its proceedings
showing the vote of each member upon every question or, if absent
or failing to vote, indicating that fact. He shall also keep a record
of the examinations and other official actions of the Board. Every
rule, regulation, every 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.
A.
The concurring vote of four members of the Board shall
be necessary to reverse any order, requirement, decision or determination
of the Building Inspector or to decide in favor of the applicant 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 person aggrieved, or by an office, department, board or bureau
of the Village. Such appeal shall be taken within such time as shall
be prescribed by the Board of Appeals by general rule, by filing with
the Building Inspector from whom the appeal is taken and with the
Board of Appeals a notice of appeal specifying the grounds thereof.
The Building Inspector shall forthwith transmit to the Board all the
papers constituting the record upon which the action appealed from
was taken.
B.
An appeal stays all proceedings in furtherance of
the action appealed from, unless the Building Inspector 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 facts stated
in the certificate a stay would, in his opinion, cause imminent peril
to life or property, in which case proceedings shall not be stayed
otherwise than by a restraining order which may be granted by the
Board of Appeals or by court of record on application, on notice to
the Building Inspector and on due cause shown.
C.
The Board of Appeals shall fix a reasonable time for
the hearing of the appeal and give due notice thereof to the parties,
and decide the same within a reasonable time. Upon the hearing, any
party may appear in person or by agent or by attorney. The Board of
Appeals may reverse or affirm, wholly or partly, or may modify the
order, requirement, decision or determination appealed from and shall
make such order, requirement, decision or determination as in its
opinion ought to be made in the premises and to that end shall have
all the powers of the Building Inspector from whom the appeal is taken.
Where there are practical difficulties or unnecessary hardships in
the way of carrying out the strict letter of such ordinance, the Board
of Appeals shall have the power in passing upon appeals, to vary or
modify the application of any of the regulations or provisions of
such ordinance relating to the use, construction or alterations of
buildings or structures, or the use of land, so that the spirit of
the ordinance shall be observed, public safety and welfare secured
and substantial justice done.
[Amended 3-6-1968; 10-22-1973; 2-1-1990 by L.L. No. 1-1990; 11-8-2001 by L.L. No. 3-2001; 7-15-2021 by L.L. No. 7-2021]
A.
The fees for any variances, special permits, conditional use permits
or other applications to the Board of Zoning Appeals and for the annual
inspection, registration or certification of any such variances, special
permits or conditional uses, etc., shall be in such amounts as may
be fixed from time to time by resolution or order of the Board of
Trustees. A schedule of current fees shall be made, posted and certified
to any person, by the Village Clerk, in such manner or on such forms
as may be adopted from time to time by such Clerk.
B.
Before any application can be heard by the Board of Zoning Appeals,
a complete and accurate list of the names and addresses of owners
of all the lands within a radius of 300 feet of the property affected
by such application, as appears on the last completed assessment roll
of the County of Nassau or the Village of New Hyde Park, shall be
submitted simultaneously with the application. The applicant shall
send by registered or certified mail to each owner, not less than
10 nor more than 20 days before the date set for a hearing upon his
application, a notice addressed to each owner generally signed by
the applicant, identifying the property affected thereby and setting
forth the variance requested and the date, hour and place fixed by
the Board of Zoning Appeals for the hearing thereon. Before such case
may be heard by the Board, an applicant must file with the Clerk of
the Board, not later than five days prior to the hearing, an affidavit
of the mailing of such notices as herein provided or, in lieu thereof,
consents from said owners, said affidavit or consents to be made on
forms to be provided by the Board of Appeals.
C.
Reimbursable expenses. No variance, special permit, conditional use
permit or other decisional relief shall be issued pursuant to the
provisions of this article until all expenses incurred by the Board
of Zoning Appeals for transcript costs, exhibit reproduction costs,
consultation fees, including, but not limited to, engineering, architectural
and legal fees, or other extraordinary expenses in connection with
the review of an application are reimbursed to the Village by the
applicant. At the time of application, the applicant shall deposit
with the Village Clerk such amount to cover transcript costs, exhibit
reproduction costs, consultation fees and extraordinary expenses as
shall be established from time to time by resolution of the Board
of Trustees. Additional deposits shall be deposited upon demand.