Briarcliff Manor Town
City Zoning Code
City Zoning Code
§ 220-17
Board of Appeals.
[Amended 5-21-1998 by L.L. No. 2-1998; 5-21-2019 by L.L. No. 1-2019; 10-10-2019 by L.L. No. 5-2019; 10-3-2023 by L.L. No. 8-2023; 6-4-2024 by L.L. No. 8-2024]
The Board of Appeals, as heretofore established pursuant to the Village Law, is hereby continued with all powers and duties prescribed by Village Law, by Chapter 61, and by this chapter, which powers and duties are summarized and more particularly specified as follows, provided that none of the following provisions shall be deemed to limit any of the power of the Board of Appeals that is conferred by New York State Village Law §§ 7-712, 7-712-a and 7-712-b. Said Board shall have the power to adopt, from time to time, such rules and procedures not inconsistent with law, as it may determine to be necessary to carry out the provisions of these regulations and to exercise the authority vested in it by the Village Law.
A.
Interpretation. On appeal from an order, requirement, decision or determination made by an administrative official, the Board of Appeals shall decide any question involving the interpretation of any provision of this chapter, including determination of the exact location of any district boundary line, if uncertainty remains after reference to the rules specified in § 220-3C, Boundaries.
B.
Variances. Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the chapter, the Board of Appeals shall have the power in passing upon appeals to vary or modify the application of any of the regulations or provisions of this chapter relating to the use, construction or alteration of buildings or structures or the use of land, upon application by an appellant, so that the spirit of this chapter shall be observed, public safety and welfare secured and substantial justice done.
(1)
Use variances. Where because of unnecessary hardship relating to the land an applicant desires to utilize land for a use not allowed in the district in which the land is located, the Board may grant a variance in the application of the provisions of this chapter in the specific case, provided that as a condition to the grant of any such variance the applicant shall demonstrate to the Board, and the Board shall make each and every one of the following findings, 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;
(d)
The alleged unnecessary hardship has not been self-created; and
(e)
That within the intent and purposes of this chapter, the variance, if granted, is the minimum variance necessary to afford relief and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community. To this end, the Board may permit a lesser variance than that applied for.
(2)
Area variances. In making its determination, the Board of Appeals shall consider 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 the following factors:
(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 in relation to the requirement.
(d)
Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.
(e)
Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the Board but shall not necessarily preclude the granting of the area variance.
(f)
The Board, in the granting of an area variance, shall grant the minimum variance that it shall deem necessary and adequate to afford relief and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community. To this end, the Board may permit a lesser variance than that applied for.
(3)
Variances when subdivision, site plan or special permit applications are involved. Where a proposed site plan contains one or more features which do not comply with the zoning regulations, or where a proposed special permit use contains one or more features which do not comply with the zoning regulations, or where a proposed subdivision plat contains one or more lots which do not comply with the zoning regulations, application may be made to the Board of Appeals for an area variance or variances pursuant to Subsection B(2), without the necessity of a decision or determination of an administrative official charged with the enforcement of this chapter or a referral by an approving agency acting pursuant to this chapter.
C.
Conditions and safeguards. The Board of Appeals, in the granting of both use variances and area variances, may prescribe such reasonable conditions or restrictions applying to the grant of a variance as it may deem necessary in each specific case, in order to minimize the adverse effects of such variance upon the character and property values of the neighborhood or community and to protect the public health, safety and welfare. Such conditions or restrictions shall be directly related to the proposed use of the property. Such conditions or restrictions shall be incorporated in the building permit and certificate of occupancy. Failure to comply with such conditions or restrictions shall constitute a violation of this chapter and may constitute the basis for denial or revocation of a building permit, certificate of conformance or certificate of occupancy and for all other applicable remedies.
D.
Appeal or application. An appeal shall be taken within 60 days of the order or decision appealed from, by filing with the official or agency from whom the appeal is taken and with the Board of Appeals a notice of appeal specifying the ground thereof. The official or agency from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from is taken. A referral to the Board for a variance, or a request for an interpretation, may be made at any time. All such appeals and applications to the Board shall be made by the owner or agent duly authorized, in writing, and shall be on forms prescribed by the Board. Each appeal or application shall fully set forth the circumstances of the case, shall refer to the specific provision of the chapter involved, and shall exactly set forth, as the case may be, the interpretation that is claimed, the details of the adjustment that is applied for, and the grounds on which it is claimed that the same should be granted.
E.
Review by other agencies.
(1)
Upon receipt of a completed application for review, the Secretary of the Board of Appeals shall promptly transmit to Board of Appeals a copy of the application and all papers related thereto with a notice of hearing, a copy of which shall be sent to the Planning Board. The Board of Appeals may also forward copies for review and comments to the Building Inspector, Village Engineer and other officials, boards, and agencies of the Village as it deems appropriate.
(2)
The Board of Appeals shall refer to the Westchester County Planning Board for its recommendation all matters within the provisions of Article 12B, §§ 239-i and 239-m, of the General Municipal Law at least 10 days prior to the public hearing.
(3)
Any interested party may, with respect to any such application, submit comments for consideration prior to or at the public hearing.
F.
Public hearing. The Board of Appeals shall conduct a public hearing on every application or request made pursuant to this chapter. Such public hearing shall be held within a reasonable time, generally at the next scheduled meeting of the Board of Appeals, but no earlier than 15 days from the date the complete application is received by the Secretary of the Board. The Board of Appeals shall meet monthly, quorum permitting. No requirement herein shall mandate that the Board of Appeals meet if no timely, completed application or request is pending before the Board for its consideration.
G.
Notice of hearing. Notice of any hearing before the Board of Appeals shall be published by the Village Clerk in the official paper at least five days prior to the date of said hearing. Notice of the hearing shall also be mailed by the Board to any parties having jurisdiction over such appeal, at least five days before such hearing, and shall give any other notice required by law. The applicant shall mail, by certified mail, at least 10 days before such hearing, notice of the hearing to all abutting property owners and to all owners of the property situated directly across a street from the property affected by such appeal, and any other property owners as the Village Clerk or Chairman of the Board of Appeals may determine. Proof of such mailing, in a form acceptable to the Village Clerk, shall be submitted to the Board by the applicant prior to the hearing. The applicant shall be responsible for the cost of publication and mailing of such notice. Such notice shall include a plain-language description of the proposed construction and the variance requested. Further, the applicant shall post a sign, which should be located so that it is visible from the nearest public street, on the property referenced in such application at least 10 days but not more than 20 days prior to the Board of Appeals' scheduled hearing on the matter, and for a period of time determined by the Board of Appeals. Such signs shall be issued by the Building Department upon payment by the applicant of an amount to be set forth by resolution by the Village Board of Trustees.
H.
Decision. The Board of Appeals shall decide upon the appeal for relief, interpretation or determination within 62 days after the close of said hearing. The time within which the Board must render its decision may be extended by mutual consent of the applicant and the Board. Every decision of the Board of Appeals shall be by resolution, shall be recorded and shall fully set forth the facts of the case, the findings and the conclusions on which the decision was based. The decision of the Board shall be filed in the office of the Village Clerk within five business days after the day such decision is rendered, and a copy of such resolution shall be mailed to the applicant.
I.
Rehearing. A motion for the Zoning Board of Appeals to hold a rehearing to review any order, decision or determination of the Board not previously reviewed may be made by any member of the Board. A unanimous vote of all members of the Board then present is required for such hearing to occur. Such rehearing is subject to the same notice provisions as an original hearing. Upon such rehearing, the Board may reverse, modify or annul its original order, decision or determination upon the unanimous vote of all members then present, provided the Board finds that the rights vested by persons acting in good faith in reliance upon the reviewed order, decision or determination will not be prejudiced thereby.
J.
Fees. Any person or corporation, other than the Village of Briarcliff Manor, making any application to the Board of Appeals under the provisions of this chapter shall pay to the Building Department the sum as set forth in the Schedule of Fees to cover the cost of advertising the notice of hearing, upon each application filed.