A.
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.
B.
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.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
(1)
AREA VARIANCE
USE VARIANCE
Definitions. As used in this article, the following
terms shall have the meanings indicated:
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.
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.
F.
Use variances.
(1)
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.
(2)
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:
(a)
The applicant cannot realize a reasonable return,
provided that lack of return is substantial as demonstrated by competent
financial evidence;
(b)
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)
The requested use variance, if granted, will
not alter the essential character of the neighborhood; and
(d)
The alleged hardship has not been self-created.
(3)
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.
(4)
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.
G.
Area variances.
(1)
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.
(2)
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:
(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 area variance;
(b)
Whether the benefit sought by the applicant
can be achieved by some method feasible for the applicant to pursue,
other than an area variance;
(c)
Whether the requested area 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; and
(e)
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.
(3)
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.
(4)
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:
A.
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.
B.
Public hearing.
(1)
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.
(2)
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]
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"THE USE OF THIS SITE IS PROPOSED TO BE CHANGED
AS FOLLOWS: (DESCRIBE PROPOSED CHANGE). THIS MATTER IS SUBJECT TO
PUBLIC HEARING AT CITY HALL ON (GIVE DATE AND TIME)."
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(3)
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.
C.
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.
D.
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.
E.
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.
F.
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.
G.
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.
H.
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.
I.
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.
J.
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.
