City of Rye, NY Appeals

The Board of Appeals, on appeal from the decision or determination of the administrative 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 a Board of Appeals 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 Board of Appeals 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.

The Board of Appeals, 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.

Area variances.

The Zoning Board of Appeals shall have the power, upon an appeal from a decision or determination of the administrative official charged with the enforcement of such ordinance or local law, to grant area variances as defined herein.

In making its determination, the Zoning Board of Appeals 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:

(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)

The benefit sought by the applicant can be achieved by some method feasible for the applicant to pursue, other than an area variance;

(c)

The requested area variance is substantial;

(d)

The proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and

(e)

The alleged difficulty was self-created, which consideration shall be relevant to the decision of the Board of Appeals but shall not necessarily preclude the granting of the area variance.

The Board of Appeals, 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 shall, in the granting of both use variances and 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 the zoning ordinance or local law and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.

To facilitate public notification, the applicant shall prepare a public notification list using the most current City of Rye Tax Maps and Tax Assessment Roll, showing the Tax Map sheet, block and lot number, the owner's name and the owner's mailing address for each property located wholly or partially within 300 feet of the perimeter of the property that is the subject of the application. The applicant shall deliver a copy of the public notice provided by the City Clerk to all of the property owners contained on the public notification list by mail in accordance with the following requirements:

[Amended 3-10-2010 by L.L. No. 4-2010[1]]

The mailing shall be limited solely to the public notice provided to the applicant by the City Clerk.

The public notice shall be mailed to all property owners by certified mail with certificate of mailing (no return receipt necessary) at a post office or official depository of the Postal Service, at least 10 days prior to the date of the public hearing.

At least five business days prior to the public hearing, the subdivider shall provide to the City Clerk all certificates of mailing.

(4)

In accordance with General City Law, at least five days prior to the public hearing, the City will publish a notice regarding the public hearing in the official newspaper of the City. The applicant shall be responsible for payment of all fees associated with such publication and any subsequent publication necessary.

[1]

Editor's Note: This local law provided that it shall take effect 5-1-2010.

§ 197-82 Original jurisdiction of Board.

[Amended 11-18-1959; 3-21-1962 by L.L. No. 2-1962; 10-24-1963 by L.L. No. 7-1963; 4-1-1964 by L.L. No. 6-1964; 6-21-1976 by L.L. No. 10-1976; 3-5-1980 by L.L. No. 3-1980; 5-6-1981 by L.L. No. 3-1981; 2-18-1985 by L.L. No. 17-1985; 8-15-1990 by L.L. No. 14-1990; 2-5-1992 by L.L. No. 2-1992; 1-20-1999 by L.L. No. 2-1999]

The Board of Appeals may in a specific case, after public notice and hearing and subject to appropriate conditions and safeguards, determine and grant special exceptions to the regulations herein established, in harmony with their general purpose and intent, as follows:

Expansion of a nonconforming use: permit the expansion of nonconforming uses or buildings upon the land occupied by such uses at the time such uses become nonconforming or on land adjoining, provided that such adjoining land was under the same ownership as the land in question at that time and provided that there has been no substitution of a new use for the original nonconforming use and provided that such extension or extensions of nonconforming uses shall not exceed in all 30% of the floor area of the building containing the nonconforming use at the time it became nonconforming, and the expansion or extension of a nonconforming use shall not exceed in all an increase of 30% in the intensity of the use at the time it became nonconforming, which percentage shall be related to number of employees, hours of operation, number of vehicles or such other characteristics or combination of characteristics as the Board of Appeals determines as the most accurate measure of the intensity of the particular use. In each case, the Board shall give consideration to and make a finding that the following conditions prevail prior to approving a special exemption:

The expansion or extension will not have a significant adverse impact on surrounding conforming development.

Proposed off-street parking complies with the provisions of § 197-26.

The use is not a use prohibited by the provisions of § 197-22.

Expansion into a more restricted district: permit the expansion of a use or building, within the same lot as such lot existed at the time the district boundary was established, into a contiguous more restricted district, but in no case for a distance of more than 25 feet into the more restricted district.

Substitution for a nonconforming use: permit a substitution for an existing nonconforming use, provided that such substitution is in accordance with the provisions of § 197-5A(2).

Construction of a single-family dwelling on a nonconforming lot: permit the construction of a single-family dwelling on a lot that does not conform to the requirements of the district in which it is located, subject to the provisions of § 197-37.

Joint use of parking space: approve the joint use of parking space as provided in § 197-29.

Reduction of side yards and waiving of off-street parking requirements: reduce to not less than eight feet the required side yards for a dwelling proposed to be converted for up to four families in RA-1, RA-2, RA-3, RA-4 and B-3 Districts, as provided in Article VIII, Tables of Regulations, and waive off-street parking requirements for such proposed conversions in RA-3 Districts where the Building Inspector finds it impossible to provide the required parking.

Reduction of yard requirements as authorized under § 197-64.

Issue permits: grant a permit wherever it is provided in this chapter that the approval of the Board of Appeals is required.

Permit the use of floor space in existing buildings in the B-2 Central Business District which is in excess of the maximum permitted in the district on the effective date of this chapter, provided that the total usable space in the building will not exceed a floor-area-to-lot-area ratio of 2.80 and the excess floor space will be used for a use permitted in the district, which shall not include the expansion of a nonconforming use.

Permit reductions in the standards required by § 197-6.1 of this chapter and Chapter 100 of this Code, subject to the requirements of § 197-37.1 of this chapter.

Permit the filming of movies, commercials, documentaries, serials, shows, performances or other similar events and activities, including still photography in excess of filming permitted as an accessory use, subject to the following requirements and limitations:

Such filming shall also be subject to the requirements of Chapter 93 of this Code.