Babylon City Zoning Code
ARTICLE II
Board of Appeals
§ 213-11 Creation.
[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.
§ 213-12 Variance 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.
§ 213-13 Authorization of permissive uses.
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]
§ 213-13.1 Basis for variance or permissive use.
[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.
§ 213-14 Power to make rules.
The Board of Appeals shall make rules as to the manner of filing appeals and applications for variances or for special exceptions.
§ 213-15 Notice of hearing for variance.
[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.
§ 213-16 Expiration of variance in absence of construction.
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.
§ 213-16.1 Additional variance applications.
[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.