[Added 4-26-2005 by L.L. No. 6-2005]
The Town Board hereby supersedes, pursuant to
its powers set forth in § 10 of the Municipal Home Rule
Law, § 267(2) of the Town Law, which limits the Board of
Appeals to three or five members, and § 267(11) of the Town
Law, which only allows for alternate members to serve where a conflict
of interest is involved. There shall be a Board of Appeals consisting
of seven members appointed by the Town Board. There shall also be
up to three alternate members who may serve when a member has a conflict
of interest or is absent or when a vacancy on the Board occurs. Such
Board of Appeals shall, consistent with Town Law, determine its own
rules and procedure, the manner in which appeals shall be brought
before it and what notice shall be given of proceedings before it.
The Board of Appeals shall investigate and report upon all matters
referred to it by the Town Board. The Board of Appeals shall have
the powers granted by the Town Law and the following powers.
Where there are practical difficulties or unnecessary
hardships in the way of carrying out the strict letter of these regulations,
the Board of Appeals shall have power to vary or modify the application
of such regulations so that the spirit of the chapter shall be observed,
public safety and welfare secured and substantial justice done.
Whenever a use or the location thereof is permitted
only if the Board of Appeals shall approve thereof, the Board of Appeals
may, in a specific case and after notice and public hearing, authorize
such permissive use and its location within the district in which
this chapter specifies the permissive use may be located, subject,
however, to the following:
A.
Before such approval shall be given, the Board of
Appeals shall determine:
(1)
That the use will not prevent the orderly and reasonable
use of adjacent properties or of properties in adjacent use districts.
(2)
That the use will not prevent the orderly and reasonable
use of permitted or legally established uses in the district wherein
the proposed use is to be located or of permitted or legally established
uses in adjacent use districts.
(3)
That the safety, the health, the welfare, the comfort,
the convenience or the order of the Town will not be adversely affected
by the proposed use and its location.
(4)
That the use will be in harmony with and promote the
general purposes and intent of this chapter.
B.
In making such determination, the Board of Appeals
shall also give consideration, among other things, to:
(1)
The character of the existing and probable development
of uses in the district and the peculiar suitability of such district
for the location of any of such permissive uses.
(2)
The conservation of property values and the encouragement
of the most appropriate uses of land.
(3)
The effect that the location of the proposed use may
have upon the creation or undue increase of vehicular traffic congestion
on public streets or highways.
(4)
The availability of adequate and proper public or
private facilities for the treatment, removal or discharge of sewage,
refuse or other effluent (whether liquid, solid, gaseous or otherwise)
that may be caused or created by or as a result of the use.
(5)
Whether the use or materials incidental thereto or
produced thereby may give off obnoxious gases, odors, smoke or soot.
(6)
Whether the use will cause disturbing emissions of
electrical discharges, dust, light, vibration or noise.
(7)
Whether the operations in pursuance of the use will
cause undue interference with the orderly enjoyment by the public
of parking or of recreational facilities, if existing, or if proposed
by the Town or by other competent governmental agency.
(8)
The necessity for bituminous surfaced space for purposes
of off-street parking of vehicles incidental to the use and whether
such space is reasonably adequate and appropriate and can be furnished
by the owner of the plot sought to be used within or adjacent to the
plot wherein the use shall be had.
(9)
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 structures to be used therefor, or by
the inaccessibility of the property or structures thereon for the
convenient entry and operation of fire and other emergency apparatus
or by the undue concentration or assemblage of persons upon such plot.
(10)
Whether the use or the structures to be used
therefor will cause an overcrowding of the land or undue concentration
of population.
(11)
Whether the plot area is sufficient, appropriate
and adequate for the use and the reasonably anticipated operation
and expansion thereof.
(12)
Whether the use to be operated is unreasonably
near to a church, school, theater, recreational area or other place
of public assembly.
C.
The Board of Appeals shall, in authorizing such permissive
uses, impose such conditions and safeguards as it may deem appropriate,
necessary or desirable to preserve and protect the spirit and objectives
of this chapter. Such permits may be granted for a temporary period
or permanently, as determined by the Board of Appeals. If granted
for a temporary period, the application for extension of same will
be subject to a public hearing as required in the original application.
[Amended 10-7-2008 by L.L. No. 23-2008]
[Added 12-15-1987]
Every variance or permissive use granted or denied by the Board of Appeals shall be based upon and accompanied by specific findings supported by evidence produced at a public hearing. In the case of a variance, the decision shall set forth whether or not there are unique circumstances of the particular case as measured by the criteria set forth in § 213-13, so as to constitute practical difficulties or unnecessary hardship in the way of carrying out the strict letter of the Zoning Ordinance. In the case of a permissive use, the decision shall set forth whether or not the criteria of § 213-13 for the granting of a permissive use have been met and the determinations of the Board with respect to matters upon which the Zoning Ordinance requires Board of Appeals consideration. The determination of the Board of Appeals shall be made at the time of the decision to grant or deny the variance or special use. A determination made after the issuance of the Board's decision, including such a determination included in a return on judicial review, shall not satisfy the requirements of this section.
The Board of Appeals shall make rules as to
the manner of filing appeals and applications for variances or for
special exceptions.
[Amended 7-7-1970]
A.
Posting of signs. After filing with the Board of Appeals,
and payment of the requisite fees, of an appeal for a variance or
of an application for special exception, the Board of Appeals shall
fix a time and place for a public hearing thereon and shall give notice
thereof by publishing a notice thereof in accordance with Town Law
and by requiring the applicant to erect a white with red lettering
sign or signs measuring not less than 30 inches high and 40 inches
wide, which shall be prominently displayed on the premises facing
each public street on which the property abuts, giving notice that
an application for an appeal or special exception use is pending and
the date, time and place where the public hearing will be held. The
sign shall not be set back more than 10 feet from the property line
and shall be not less than two nor more than six feet above the grade
at the property line. The sign shall be made of fourteen-ply pressed
board or other durable material. It shall be displayed for a period
of not less than 10 days immediately preceding the public hearing
date or any adjourned date. The applicant shall file an affidavit
that he has complied with the provisions of the section.
B.
Notice to surrounding property owners.
[Added 6-6-2000 by L.L. No. 12-2000]
(1)
Not less than 15 days prior to the date fixed for
the public hearing, the applicant shall file with the Clerk of the
Board the following:
(a)
A radius map drawn by a professional engineer
or architect for all applications where the subject property is used
as or zoned business or industrial, which map shall depict all properties
and zoning districts within 200 feet of the perimeter of the subject
property.
(b)
A copy of the Suffolk County Tax Map for all
applications with a two-hundred-foot border drawn around the perimeter
of the subject property.
(c)
A list of names and addresses of all owners
of properties within 200 feet of the perimeter of the subject property,
as listed on the assessment rolls of the Town.
(d)
Envelopes (Size 10: 4 1/8 inches by 9 1/2
inches) with first-class postage affixed thereto, addressed to the
owners of properties located within 200 feet of the perimeter of the
subject property, as listed on the assessment rolls of the Town, which
envelopes shall name the Board as the return addressee.
(2)
The Clerk of the Board shall mail notice of the hearing
utilizing the foregoing not less than 10 days prior to the date fixed
for the hearing. The failure of a property owner to actually receive
the notice required by this section shall not be deemed a jurisdictional
defect, and the Board, in its discretion, may proceed with the hearing
and render a decision.
Every variance or application granted by the
Board of Appeals in pursuance of the provisions of this chapter shall
be and become null, void and of no further force or effect, unless,
within 180 days after filing with the Town Clerk of the decision of
the Board of Appeals, the use so granted shall actually have commenced
upon the premises or the erection and construction of the principal
building or structure for the construction or use of which a variance
or special exception shall have been granted by the Board of Appeals
shall actually have been commenced; provided, however, that excavation
for or construction of a building foundation shall not be deemed to
be commencement of the erection or construction of such building or
structure within the meaning of this section.
[Added 8-20-1985]
No parcel or part thereof may be the subject
of an application for a variance within one year after the Board of
Appeals has held a public hearing on an application for a variance,
unless such application shall be substantially different from the
previous application.
