Membership. The Board of Appeals on Zoning, as heretofore established by the City Council pursuant to § 81 of the General City Law of the State of New York, is hereby maintained. The Board of Appeals on Zoning shall consist of seven members.
Meetings and records. The presence of four members of the Board shall be necessary for a quorum and the concurring vote of a majority shall be necessary to effect any decision 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 a record 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 immediately be filed in the office of the Board.
General. The Board of Appeals shall have all of the powers and duties prescribed by the General City 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 General City Law. In passing upon any matter before it, the Board shall take into specific consideration the goals as well as the specific standards of this chapter.
Rules and regulations. The Board of Appeals may adopt such rules and regulations as it deems necessary and proper to the performance of its powers and duties hereunder, and may amend or repeal the same.
Special permits. The Board of Appeals is authorized to hear and decide applications for certain special permits in accordance with the procedures and standards set forth in Article XII of this chapter.
Nonconforming uses. As more fully set out in § 331-12 of this chapter, the Board of Appeals is authorized to extend the permitted period for discontinuance of a nonconforming use in accordance with the requirements of § 331-12B(5) of this chapter; review and approve, approve with modifications or disapprove a plan for reconstruction of a nonconforming building in accordance with requirements of § 331-12D(2) of this chapter; to permit the change of a nonconforming use to another nonconforming use in accordance with § 331-12E of this chapter; and to review and approve, approve with modifications or disapprove a plan for the improvement of a nonconforming use pursuant to § 331-12F of this chapter.
Variances. The Board of Appeals on Zoning may reverse or affirm, wholly or partly, or may modify the order, decision, interpretation or determination appealed from and shall make such order, requirement, decision, interpretation or determination as in its opinion ought to have been made in the matter by the Building Official except as provided in Article X and to that end shall have all the powers of the Building Official from whose order, requirement, decision, interpretation or determination the appeal is taken.
Definitions. As used in this article, the following terms shall have the meanings indicated:
- AREA VARIANCE
- The authorization by the Board of Appeals on Zoning for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations. Variances related to parking issues are area variances.
- USE VARIANCE
- The authorization by the Board of Appeals on Zoning for the use of land or building for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations.
The Board of Appeals on Zoning, on appeal from the decision or determination of the Building Official charged with the enforcement of such ordinance or local law, shall have the power to grant use variances, as defined herein.
No such use variance shall be granted by the Board of Appeals on Zoning without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship. In order to prove such unnecessary hardship, the applicant shall demonstrate to the satisfaction of the Board of Appeals on Zoning that for each and every permitted use under the zoning regulations for the particular district where the property is located:
The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;
The alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood;
The requested use variance, if granted, will not alter the essential character of the neighborhood; and
The alleged hardship has not been self-created.
The Board of Appeals on Zoning, in the granting of use variances, shall grant the minimum variance that it shall deem necessary and adequate to address the unnecessary hardship proven 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.
Imposition of conditions. The Board of Appeals on Zoning shall, in the granting a use variance, have the authority to impose such reasonable conditions and restrictions as are directly related and incidental to the proposed use of the property. Such conditions shall be consistent with the spirit and intent of the Zoning Chapter and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.
The Board of Appeals on Zoning shall have the power, upon an appeal from a decision or determination of the Building Official charged with the enforcement of such ordinance or local law, to grant area variances as defined herein.
In making its determination, the Board of Appeals on Zoning 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:
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;
Whether the benefit sought by the applicant can be achieved by some method feasible for the applicant to pursue, other than an area variance;
Whether the requested area variance is substantial;
Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and
Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the Board of Appeals on Zoning, but shall not necessarily preclude the granting of the area variance.
The Board of Appeals on Zoning, 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.
Imposition of conditions. The Board of Appeals on Zoning shall, in the granting an area variance, have the authority to impose such reasonable conditions and restrictions as are directly related and incidental to the proposed use of the property. Such conditions shall be consistent with the spirit and intent of the Zoning Chapter and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.
The powers and duties of the Board of Appeals on Zoning shall be exercised in accordance with the following procedure:
Appeal and application. A public hearing shall be held by said Board on every appeal and application made to it. The deliberations of the Board shall be conducted publicly, and all votes on any matter before the Board must be taken at a public meeting.
A notice of such hearing and of the substance of the appeal or application shall be given by publication in the official newspaper of this City at least 10 calendar days before the date of such hearing. A notice of such hearing shall also be transmitted to the applicant. The applicant must notify any property owners within 250 feet of any boundary of the property which is the subject of an application for a special permit or an appeal for a variance to permit a use or a change in use. On any other application or appeal the applicant must notify any property owners within 150 feet of any boundary of the property which is the subject of the application. Such notice shall be given by certified mail, with return receipt requested, to such property owners whose names currently appear as the assessed owners of record in the Office of the Assessor of the City of New Rochelle. Such notice shall be mailed not less than seven calendar days before the date of public hearing, and the applicant shall file with the Board an affidavit, duly sworn, not less than three calendar days prior to the date of public hearing to the effect that such property owners were so notified.
In addition, the applicant shall post a sign on the property which is the subject of the application on or before 15 days prior to the first date of public hearing and shall remove such sign within two days following such hearing. The sign shall be obtained from the Department of Development and shall be at least 30 inches by 20 inches, consist of sturdy and serviceable material containing a white background with black letters and shall be placed in a location plainly visible from the most commonly traveled street upon which the property fronts but in no case more than 20 feet back from the front lot line. Such sign shall be not more than three feet above the ground and shall read as follows, in legible lettering at least two inches:
[Amended 7-16-2002 by Ord. No. 139-2002]
Prior to the first public hearing on the application, the applicant shall submit a notarized statement to the Board of Appeals certifying full compliance with the requirements set forth above.
Review by other agencies. If the land involved in an appeal or application lies within 500 feet of the boundary of any other municipality, the Secretary of the Board of Appeals on Zoning shall transmit to the Municipal Clerk of such other municipality a copy of the official notice of the public hearing thereon not later than the day after such notice appears in the official newspaper of the City, but the failure of the Secretary to do so shall not invalidate any decision, variance or permit made or granted by the Board of Appeals. In addition, copies shall be forwarded with a notice of public hearing to the Westchester County Planning Board pursuant to the requirements of §§ 239-l and 239-m of General Municipal Law and § 277.61 of the County Administrative Code.
Expiration. Unless a permit is obtained and work is commenced and diligently prosecuted within one year of the date of the granting of a variance or special permit, such variance or special permit shall become null and void.
Reapplication. After having been decided and determined, no appeal or other matter presented to the Board of Appeals shall again be presented to or entertained by said Board within a period of three years from the date of such decision or determination or, if renewed by the courts, within the same period after the final adjudication thereof, except upon a showing by the applicant or appellant that there has been a material change in the circumstances under consideration in the original proceeding, and the applicant or appellant so presenting a second appeal or application shall have the burden of establishing upon such new appeal or application the existence of such material change in circumstance.
Application procedures. All appeals and applications made to the Board of Appeals shall be in writing, on forms prescribed by the Board, and shall be accompanied by fees as established by the City Council, a current copy of which is available in the Bureau of Buildings.
Filing requirements. Every decision of the Board of Appeals on Zoning shall be filed in the Office of the City Clerk within five business days and shall be a public record. Such filing shall also be recorded in accordance with standard forms adopted by the Board and shall fully set forth the circumstances of the case and the findings on which the decision is based. Every decision of the Board of Appeals shall be by resolution, and each such resolution shall be filed in the office of the Board, by case number, together with all documents pertaining thereto. The Board of Appeals shall notify the Planning Board, the Building Official, the Fire Chief and each applicant of its decision in each case, in writing, upon the filing of its decision in the office of the Board. The failure of the Board of Appeals on Zoning to give notice as herein provided shall not invalidate any decision made by said Board, nor shall it affect the time of any applicant to appeal.
SEQRA. The Board of Appeals on Zoning shall comply with the provisions of the State Environmental Quality Review Act under Article 8 and its implementing regulations.
Decision. The Board of Appeals on Zoning shall decide on the appeal within 62 days after the holding of a public 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.
Compliance. All the provisions of this chapter relating to the Board of Appeals on Zoning shall be strictly construed; the Board, as a body of limited jurisdiction, shall act in full conformity with all provisions of law and of this chapter and in strict compliance with all limitations contained therein; provided, however, that if the procedural requirements set forth in this chapter have been substantially observed, no applicant or appellant shall be deprived of the right of application or appeal.