East Hampton City Zoning Code
ARTICLE VIII
Zoning Board of Appeals
[Amended 4-3-1987 by L.L. No. 5-1987; 10-16-1987 by L.L. No. 15-1987; 3-15-1991 by L.L. No. 4-1991; 3-6-1992 by L.L. No. 2-1992; 6-19-1992 by L.L. No. 18-1992; 11-15-1996 by 19-1996]
§ 255-8-10 Purpose.
The purpose of this article is to provide for a Zoning Board of Appeals, made up of local citizens, to assist in the equitable administration of this chapter.
§ 255-8-20 Terms and duties of members.
[Amended 12-10-2024 by L.L. No. 26-2024]
A.
Board of Appeals continued. The Zoning Board of Appeals (also referred to herein as the "Board of Appeals" or the "Zoning Board"), created by the Town of East Hampton Building Zone Ordinance adopted on September 9, 1957, and in continuous existence since that time, is hereby continued.
B.
Terms of members. The current members of the Board and their terms of office shall continue as heretofore established. If a vacancy on the Board shall occur otherwise than by the expiration of a member's term, the Town Board shall appoint a new member for the unexpired term.
C.
Town Board members ineligible. No person who is a member of the Town Board shall be eligible for membership on the Board of Appeals.
D.
Removal of members. The Town Board shall have the power to remove any member of the Board of Appeals for cause and after a public hearing.
E.
Chairperson and Vice Chairperson. The Town Board shall designate a Chairperson and a Vice Chairperson of the Board of Appeals. If the Town Board fails to so designate a Chairperson or a Vice Chairperson, the members of the Board may themselves designate a member or members to hold these positions.
F.
Duties of Chairperson and Vice Chairperson. All meetings of the Board of Appeals shall be held at the call of the Chairperson and at such other times as the Board may determine. The Chairperson, or in his absence the Vice Chairperson, may administer oaths and compel the attendance of witnesses.
G.
Alternate members. The Town Board may appoint up to two additional alternate members to serve where a member is absent or has a conflict of interest. Alternate members of the Zoning Board of Appeals shall be appointed by resolution of the Town for a term of one year. Alternate members shall be required to satisfy on a timely basis the training and continuing education requirements described in NYS Town Law § 267(7-a).
§ 255-8-30 Jurisdiction.
[Amended 10-19-1999 by L.L. No. 26-1999]
The jurisdiction of the Zoning Board of Appeals shall be limited as follows:
A.
Matters within jurisdiction of the Board. The Board of Appeals shall have jurisdiction to hear and decide the following:
(1)
Appeals from the Building Inspector. Applications brought by aggrieved persons from interpretations of provisions of this chapter made by the Building Inspector or for review of other orders, requirements, decisions or determinations made by him pursuant to this chapter.
(2)
Appeals from the Architectural Review Board. Applications brought by an applicant before the Architectural Review Board or the owner of the property which is the subject of that application, for the reversal of all or part of a determination made by the Review Board, but only with respect to a Review Board decision involving a residence in a designated historic landmark or historic district pursuant to the Review Board's jurisdiction under §§ 255-8-30D or E of this chapter, and only on the grounds set forth in § 255-8-50A(2) of this chapter (unreasonable economic hardship). The Zoning Board is not authorized to hear applications to reverse decisions of the Review Board on any other matters or to reverse Review Board decisions on any matter (including decisions with respect to residences in an historic landmark or an historic district) on any grounds other than unreasonable economic hardship. Such Architectural Review Board decisions are final agency action, are not within the jurisdiction of the Zoning Board of Appeals and are subject to judicial review if otherwise appropriate.
[Amended 6-2-2000 by L.L. No. 6-2000]
(3)
Interpretations. Applications brought directly to the Board of Appeals by any local agency for interpretations of provisions of this chapter.
(4)
Special permits. Applications brought by persons for special permits, the administration of which is delegated to the Board of Appeals pursuant to Article V hereof.
(5)
Variances. Applications brought by persons for one or more use variances or area variances.
(6)
Personal wireless service facility tiers. If the Planning Director categorizes an application as Tier Two or Tier Three and the applicant believes that a lower tier applies, the applicant may appeal the categorization to the Zoning Board of Appeals.
[Added 11-1-2002 by L.L. No. 34-2002]
(7)
Revocation of a certificate of occupancy. Applications brought by the Building Inspector involving the revocation of a certificate of occupancy.
[Added 10-7-2005 by L.L. No. 32-2005]
B.
Scope of review. For the purposes of this section, "provision" shall include but not be limited to the location of district boundaries on any Use District Map contained in Article XI hereof; "interpretation" shall include but not be limited to a determination as to:
(1)
Whether a change or alteration involving a nonconforming building, structure or lot renders the same more or less nonconforming, or constitutes an expansion thereof.
(2)
Whether a change, activity or alteration involving a nonconforming use renders the same more or less nonconforming, or constitutes an expansion thereof.
(3)
Whether an alteration in a special permit use constitutes a substantial expansion thereof, necessitating issuance of a special permit, and whether an alteration of any other structure or use is a substantial expansion as defined herein.
(4)
Whether a particular use is a permitted or prohibited use under the terms of this chapter in a particular district.
(5)
The meaning of one or more words of the text of this chapter.
C.
Limitation. The Board of Appeals shall be wholly without authority to vary, waive or modify to any extent any provision of this chapter unless such variance, waiver, or modification constitutes an area variance or use variance, as defined herein. The Board of Appeals shall specifically be without power to vary, waive or modify any definitional or procedural provision of this chapter, whether found in Article I or Article VIII or elsewhere, although the Board may, if necessary, interpret the provisions of any part of the chapter as a part of its other authorized activities.
§ 255-8-32 Determinations as to status of family.
An application may be made to the Zoning Board of Appeals for a determination that persons occupying a dwelling unit do or do not constitute a family, as that term is defined in this chapter. Such an application shall be entertained by the Board only on appeal from an order, requirement, decision or determination made by the Building Inspector; the Board's jurisdiction in this respect shall be appellate only and shall lie under Subsection A of § 255-8-30 hereof.
§ 255-8-33 Determinations relating to Americans with Disabilities Act.
[Added 11-7-2003 by L.L. No. 37-2003]
The Zoning Board of Appeals shall have jurisdiction to determine appeals of aggrieved persons concerning matters set forth in Chapter 102, Building Construction, § 102-29 Grievance; appeals, relating to interpretations and variances from the application of the Americans with Disabilities Act, as the same may be amended from time to time.
§ 255-8-35 Time to take appeal.
A.
Limitation on appeals. The Board of Appeals shall not hear any appeal from an interpretation made by the Building Inspector with respect to a provision of this chapter, nor from any other order, requirement, decision or determination made by him, unless such appeal is made to the Board in writing, on the form prescribed for such purpose pursuant to § 255-8-40 hereof, within 60 days after the filing of the Building Inspector's written interpretation, order, requirement, decision or determination. The manner of such filing shall be governed by the provisions of Subsection B hereof and not by the provisions of New York Town Law § 267-a, Subdivision 5. For this purpose, the provisions of Town Law § 267-a, Subdivision 5, which specify filing in the Town Clerk's office are superseded pursuant to the Town's home rule powers under Article 9, § 2(b)(3) of the New York State Constitution, § 10, Subdivision 6, of the Statute of Local Governments, and § 10, Subdivisions 1(ii)a(3), 1(ii)a(11) and 1(ii)a(14) of the Municipal Home Rule Law.
[Amended 10-27-1998 by L.L. No. 35-1998]
B.
Manner of calculating time limitation. For the purpose of this section, the Building Inspector shall have filled an interpretation, order, requirement, decision or determination when the later of the following two events occurs:
(1)
When the Building Inspector has placed his interpretation, order, requirement, decision or determination in any of his official files or records regarding the affected premises; or
(2)
When he has mailed or otherwise caused to be delivered notice of the same to any owner, lessee, contract vendee, mortgagee or other person having a legal or equitable interest in the affected premises, or to any agent of any of the above parties.[1]
[1]
Editor's Note: Former Subsection C, Unavailability of alternate relief, which immediately followed this subsection, was repealed 10-27-1998 by L.L. No. 35-1998.
§ 255-8-40 Applications.
Applications to the Board of Appeals shall be made in writing only, on the forms prescribed by the Board for the same, and shall set forth fully the facts and circumstances involved in the application. Every such application shall refer to the specific provision(s) of this chapter involved and, as the case may be, shall set forth the interpretation that is claimed, the use for which a special permit is sought or the details of the variance applied for and the grounds on which it is claimed that the same should be granted. The required fee established by the Town Board pursuant to § 255-9-26 shall accompany the application. Upon receipt of any application which it finds to be complete and in compliance herewith, the Board of Appeals shall follow the procedure set forth in Article IX hereof for the processing of applications.
§ 255-8-50 Standards.
The following standards and criteria shall govern determinations made by the Zoning Board of Appeals.
A.
Appeals and interpretations.
[Amended 10-19-1999 by L.L. No. 26-1999]
(1)
Appeals from the Building Inspector and interpretations of provisions of this chapter. In deciding an appeal from an interpretation of a provision of this chapter made by the Building Inspector, or an appeal from any other order, requirement, decision or determination made by him, the Board of Appeals shall keep in mind the findings, purposes and goals of the Town's Comprehensive Plan and the purposes of this chapter as set forth in Article I and other parts thereof, as well as the findings of any local law enacting or amending the language at issue. The Board shall follow any specific standards or limitations set forth in this chapter which govern the question and shall give great weight to the above factors as indicative of legislative purpose and intent. Appeals relating to § 255-8-32 hereof (occupancy of a dwelling unit by a family) shall be governed by the provisions of Subsection F below.
(2)
Appeals from the Architectural Review Board. The Board of Appeals shall not reverse, in whole or part, a decision of the Architectural Review Board, unless the Board of Appeals shall find and fully set forth in its determination that the Review Board's decision would cause the applicant or the owner of the property an unreasonable economic hardship if left undisturbed.
[Amended 6-2-2000 by L.L. No. 6-2000]
(3)
In making any determination under this chapter, among other factors to be considered as outlined in this chapter, the Zoning Board of Appeals shall, when applicable, consider the location and metes and bounds of existing scenic, agricultural, and conservation easements and purchases of development rights agreements in, upon, or adjacent to the premises under review, to which the Town of East Hampton, a conservation organization or a homeowners' association is a grantee or a party, and the impact of the proposed action upon the benefits conferred by such easements and/or development rights.
[Added 6-20-2019 by L.L. No. 28-2019]
B.
Special permits. In deciding whether to grant a special permit the administration of which has been given to it by Article V of this chapter, the Board of Appeals shall apply the general standards and specific standards and safeguards, if any, set forth in Article V.
C.
Use variances. The Board of Appeals shall not grant any use variance, so as to allow a use of land in a manner or for a purpose which is otherwise not allowed or is prohibited by the use tables[1] contained in this chapter, unless the Board shall find and fully set forth in its determination that the applicant has shown unnecessary hardship, which shall mean that:
(1)
Under the use regulations contained in this chapter, the applicant cannot realize a reasonable economic return from the property, lot or land in question, under any of the uses permitted by this chapter, and that such lack of reasonable return is substantial and has been established by competent financial evidence.
(2)
Notwithstanding anything which may be to the contrary in § 267-b of the New York Town Law or in any other provision of the Town Law relating to Zoning Boards of Appeals, the applicant shall have the burden of showing that the benefit accruing to him from grant of the requested variance outweighs any harm which will be caused to the neighborhood or the Town, and that the variance requested is the minimum variance needed to alleviate his difficulty while safeguarding the character of the neighborhood and the general welfare of the Town. In making this determination, among other factors outlined in this chapter, the Zoning Board of Appeals shall consider the location and metes and bounds of existing scenic, agricultural, and conservation easements and purchases of development rights agreements in, upon, or adjacent to the premises under review, to which the Town of East Hampton, a conservation organization or a homeowners' association is a grantee or a party, and the impact of the proposed variance(s) upon the benefits conferred by such easements and/or development rights.
[Amended 6-20-2019 by L.L. No. 28-2019]
(3)
The use variance to be granted will not alter the essential character of the neighborhood.
(4)
The hardship relating to the property has not been self-created.
(5)
The use variance to be granted is the minimum variance necessary and adequate to alleviate the unnecessary hardship shown by the applicant, while at the same time preserving and protecting the character of the neighborhood and the general health, safety and welfare of the Town as a whole.
[1]
Editor's Note: The use tables are included at the end of this chapter.
D.
Area variances. The following provisions shall govern applications for area variances:
[Amended 5-15-1998 by L.L. No. 20-1998]
(1)
The Board of Appeals shall not grant any area variance, waiving strict application of the area or dimensional requirements of this chapter, unless the Board shall find and fully set forth in its determination that:
(a)
The benefit to the applicant from grant of the area variance outweighs any detriment which grant of the variance will cause to the general health, safety and welfare of the neighborhood or the Town as a whole; and
(b)
The area variance to be granted is the minimum variance necessary and adequate to alleviate the difficulty causing the applicant to request an area variance, while at the same time preserving and protecting the character of the neighborhood and the general health, safety and welfare of the Town as a whole.
(2)
Notwithstanding anything which may be to the contrary in § 267-b of the New York Town Law or in any other provision of the Town Law relating to Zoning Boards of Appeals, the applicant shall have the burden of showing that the benefit accruing to him from grant of the requested variance outweighs any harm which will be caused to the neighborhood or the Town, and that the variance requested is the minimum variance needed to alleviate his difficulty while safeguarding the character of the neighborhood and the general welfare of the Town.
(3)
In deciding whether to grant an area variance, the Board shall consider the following factors:
(a)
Whether the grant of the variance will cause an undesirable change in the character of the neighborhood or will create a detriment to nearby properties;
(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 grant of the variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or in the affected area of the Town; and
(e)
Whether the difficulty causing the applicant to request an area variance was self-created, which consideration shall be relevant to the determination of the Board but shall not necessarily preclude the grant of the variance.
E.
(Reserved)[2]
[2]
Editor's Note: Former Subsection E, Variances from requirements of Flood Hazard Overlay District, as amended, was repealed 4-13-2007 by L.L. No. 14-2007. See now § 255-8-62A.
F.
Occupancy by family.
(1)
A group of more than four unrelated persons shall be deemed to constitute a single-family for the purpose of occupying a dwelling unit only if the group is the functional equivalent of either of the two entities described in Subsection A of the definition of "family," found at § 255-1-20 of this chapter. The Board of Appeals shall determine that a group of more than four unrelated persons is a family only if it finds that:
(a)
The group is one which in size, function and structure resembles a traditional family unit.
(b)
The group will live and cook together as a single housekeeping unit.
(c)
The group is of a permanent nature and is neither a framework for transient or seasonal living nor merely an association or relationship which is transient or seasonal in nature.
(d)
All other requirements of this chapter regarding the use and occupancy of the dwelling unit in which the group resides will be met.
(2)
Any determination under this subsection that a particular group of persons constitutes a family shall constitute a determination as to the status of that particular group only and shall not be interpreted as authorizing any other occupancy, use or activity.
G.
The revocation of a certificate of occupancy. The Board of Appeals shall find that a certificate of occupancy was properly revoked by the Building Inspector only if the Board finds and fully sets forth in its determination that:
[Added 10-7-2005 by L.L. No. 32-2005]
(1)
There has been any false statement or misrepresentation as to a material fact in the application, plans or specifications upon which the building permit was issued;
(2)
There has been any false statement or misrepresentation as to a material fact in the application for a certificate of occupancy;
(3)
The certificate of occupancy was issued in error; or
(4)
The certificate of occupancy was issued in conflict with the applicable law.
§ 255-8-60 Limitations on certain variances.
[Amended 1-16-1997 by L.L. No. 2-1997]
Notwithstanding any other provision of this chapter or of the New York Town Law as it relates to Zoning Boards of Appeals and their power to grant variances, the authority of the Board of Appeals to grant variances shall be limited as provided in this section.
A.
Expansion of nonconforming buildings ("50% cap"). Nonconforming buildings should not be capable of unlimited enlargement in a manner which continues to transgress the applicable setbacks, even through the grant of variances by the Zoning Board of Appeals. To that end, the following rules shall limit the authority of the Zoning Board of Appeals:
(1)
The Board of Appeals shall have no power to grant a variance or variances which would increase the gross floor area of the nonconforming portion of a nonconforming building by more than 50%. For the purposes of this subsection, the "gross floor area of the nonconforming portion of a nonconforming building" shall be the cumulative gross floor area of any part or parts of a building which are located within a required yard, natural resources, pyramid law or other setback. Furthermore, in computing the "gross floor area of the nonconforming portion of a nonconforming building," the figure used shall be that which existed on the date the building first became nonconforming as to any Town setback requirement. See also § 255-1-42 hereof.
(2)
Notwithstanding the provisions of Subsection A(1), the Board of Appeals shall be authorized to grant a variance or variances which would increase the gross floor area of a nonconforming building in the following instances:
(a)
If the variance(s) would increase the gross floor area of the nonconforming portion of a nonconforming building by no more than 300 square feet; or
(b)
If the variance(s) would increase the gross floor area of the building as a whole to no more than 1,200 square feet.
B.
Small lots. The intended beneficial results of upgraded zoning requirements in established neighborhoods and other areas is sometimes defeated by continued creation of nonconforming lots in such areas by variance. Such haphazard creation of nonconforming lots (as opposed to creation of small lots as part of a controlled overall Town housing strategy) is hereby found to be disruptive of the goals of sound planning and land use, injurious to the health, safety and general welfare of the community and against public policy. Therefore, in deciding whether to grant a requested variance for the division of a residentially zoned lot into two or more nonconforming lots, one or more of which would not contain an existing residence, the Board of Appeals shall confine its deliberations to the standards set forth in § 255-8-50D hereof and shall not be compelled to grant any such variance solely because of the size of adjacent lots, the average size of lots in the neighborhood or any other similar narrow consideration.
C.
(Reserved)[1]
[1]
Editor's Note: Former Subsection C, Setbacks from designated natural features, was repealed 4-13-2007 by L.L. No. 14-2007.
D.
Urban renewal maps. The Board of Appeals may approve a change in the lot line configuration of or the division, diminishment or expansion of lots located in an urban renewal map subject to and conditioned upon the Town Board's determination to amend the Urban Renewal Plan to reflect such reconfigurations, division, diminishment or expansion but shall not issue variances authorizing or resulting in changes to streets, access, frontage, road improvement units or any other specific feature or requirements of any such plan, or of Chapter 232.[2]
[Amended 9-20-2005 by L.L. No. 29-2005]
[2]
Editor's Note: Former Subsection E, Flood Hazard Overlay District, which immediately followed this subsection, was repealed 4-13-2007 by L.L. No. 14-2007.
§ 255-8-62 Variances in Flood Hazard Overlay District and Coastal Erosion Overlay District.
[Added 4-13-2007 by L.L. No. 14-2007]
A.
Variances from requirements of Flood Hazard Overlay District. A variance from the Town's Flood Hazard Overlay District requirements shall be deemed an area variance. Nevertheless, pursuant to Article 36 of the Environmental Conservation Law and notwithstanding anything to the contrary in § 255-8-50D hereof or in § 267-b of the Town Law or any other provision of the Town Law relating to the standards for the granting of area variances, the review of variances from the requirements of said overlay district shall be governed by the following provisions:
(1)
The Board of Appeals shall not grant any variance from the requirements of the Flood Hazard Overlay District (found at § 255-3-40 et seq. hereof) unless the Board shall find and fully set forth in its determination that the applicant has shown exceptional hardship, which shall mean that:
(a)
The applicant cannot reasonably comply with the requirement from which a variance is sought; and
(b)
Grant of the variance will not result in an undue threat to human health or safety, will not result in an undue risk of damage to public or private property, will not increase flood heights, and will not cause extraordinary public expense.
(2)
The applicant shall have the burden of establishing the existence of exceptional hardship and shall show that, in view of the flood hazard, the variance sought is the minimum variance necessary to afford him relief. In deciding whether to grant a variance under this subsection, the Board shall consider the following factors:
(a)
The degree of difficulty which the applicant would have in complying with the requirement;
(b)
The expected heights, velocity, duration, rate of rise, and sediment transport of floodwaters at the applicant's property, and the effects of wave action, if applicable;
(c)
The extent of the danger to life and property due to flooding or flood-caused erosion of the applicant's land;
(d)
The susceptibility of any proposed structure or use, or its contents, to flood damage and the effects of such damage on the applicant;
(e)
The importance of the benefits provided to the community by the applicant's proposed structure or use;
(f)
The applicant's need for a waterfront location, where applicable;
(g)
The availability of alternative locations for the proposed structure or use which are not as subject to flooding or erosion damage;
(h)
The compatibility of the proposed structure or use with existing and anticipated development in its vicinity;
(i)
The relationship of the proposed structure or use to the Town's Comprehensive Plan and floodplain management program for the area;
(j)
The safety of vehicular access to the applicant's property in times of flood;
(k)
The cost of governmental services associated with flooding of the applicant's property, such as search and rescue operations, post-storm clean-up, and restoration of public facilities and utilities; and
(l)
The dangers associated with search and rescue operations involving the applicant's property during periods of flooding.
(3)
Notwithstanding the foregoing, a variance may be granted for the repair or rehabilitation of an historic structure, as defined herein, if the requirements of Subsection A(1)(b) above are met and the proposed repair or rehabilitation will not preclude the structure's continued designation as an historic structure.
B.
Limitation on variances from requirements of Coastal Erosion Overlay District. Any variance from the prohibition of erosion control structures in certain areas of the Town, as set forth in § 255-3-85B hereof, shall be deemed an area variance and subject to the standards set forth in § 255-8-50 hereof. Nevertheless, pursuant to Article 34 of the Environmental Conservation Law and notwithstanding anything to the contrary in § 255-8-50 hereof or in § 267-b of the Town Law or any other provision of the Town Law relating to the standards for grant of area variances, the Zoning Board of Appeals shall not grant a variance to allow the construction, placement, installation, maintenance, repair, replacement, or alteration of an erosion control structure which extends perpendicular to the shoreline (such as a groin or jetty), unless such structure is necessary to ensure the safe navigability of a boat channel.
§ 255-8-65 Lot area variances.
No area variance application which involves the subdivision of land, where one or more of the lots to be created does not comply with the minimum dimensional requirements of this chapter, shall be deemed complete unless application for approval of such subdivision shall have been made to the Planning Board and proof of the receipt of such application forwarded to the Zoning Board of Appeals. In any such application, the Board of Appeals shall solicit a written recommendation of the Planning Board concerning the grant of the requested variance or variances, as required by § 277, Subdivision 6, of the Town Law.
§ 255-8-80 Alternate procedures.
As more particularly set forth in the following sections, the Board of Appeals may follow alternate review procedures with respect to certain types of applications and approvals over which it has been given jurisdiction hereunder.
§ 255-8-82 Variances not requiring hearings.
A.
Authority to waive public hearing. The Board of Appeals may waive the holding of a public hearing for any application for a variance from the provisions of a front, rear or side yard setback required in a Dimensional Table of § 255-11-10 hereof or required in § 255-1-43 hereof, provided that the variance would not reduce the setback in question by more than 25% or 10 feet, whichever shall be the lesser distance.
B.
Requirement of notice. In the event that the Board elects to waive the holding of a public hearing on an application for a variance pursuant to this section, both the Board and the applicant shall give notice of the nature and extent of the variance sought in the manner prescribed by § 255-9-23 hereof for the giving of notice on public hearings. The following procedures shall be followed in giving such notice:
(1)
The Board shall cause a notice to be published in the official newspaper in accordance with the requirements of § 255-9-23. The notice shall state that comments or objections to the grant of the variance shall be made to the Board in writing no later than 10 days from the date of the appearance of the notice in the official newspaper (the "notice date").
(2)
The applicant shall erect a sign on the premises giving notice of the application and shall send notice to adjoining property owners by certified mail, in accordance with the requirements of § 255-9-23. The giving of notice in this manner shall be accomplished no later than the notice date described above, and the applicant shall file with the Board an affidavit that he has complied with this provision, together with the postal receipts evidencing notification of the abutting property owners.
(3)
The Board shall not grant the variance until the applicant has filed with the Board the affidavit and postal receipts described in the preceding subsection.
C.
Hearing required. At any time prior to the grant of a variance under this section, the Board of Appeals may determine for any reason that a public hearing must be held on the application and shall set the application for a hearing at the earliest practicable time. The Board shall be required to hold a public hearing on an application processed under this section if, within 10 days of the notice date described above, the Board receives one or more written objections to the grant of the variance without a public hearing.
D.
Town Law superseded. To the extent that § 267-a of the New York Town Law may require or be construed to require that the Zoning Board of Appeals hold a public hearing prior to the grant of a variance, Town Law § 267-a is hereby superseded pursuant to the Town's powers under Article 9, § 2(b)(3), of the New York State Constitution; § 10, Subdivision 6, of the Statute of Local Governments; and § 10, Subdivision 1(ii)a(3), (11) and (14), of the Municipal Home Rule Law.
§ 255-8-84 Administrative natural resources special permits.
A.
Administrative permits. The Planning Department of the Town of East Hampton shall in certain cases have the power to process and review applications for natural resources special permits (hereinafter called "administrative natural resources special permits") and to approve, conditionally approve, modify and approve or deny such permits.
B.
Jurisdiction; nature of permit. Except as provided for herein, the Planning Department shall exercise sole jurisdiction over administrative natural resources special permits and the review of applications received by the Town for the same. Such authority shall be exercised by the Department for and on behalf of the Zoning Board of Appeals and, except as otherwise specified herein, the determinations of the Planning Department with regard to natural resources special permit applications, which it processes and decides under this section, shall have the same force and effect as if such applications had been reviewed and acted upon by the Board of Appeals. Grant of any such administrative permit shall constitute an action as defined in the Environmental Conservation Law and in the regulations promulgated by the State Department of Environmental Conservation under that law.
C.
Informal procedures. Unless specifically provided otherwise herein, review of applications for administrative natural resources special permits conducted by the Planning Department shall not include or involve the holding of formal public hearings, the taking of sworn or unsworn testimony, the making of transcripts or the keeping of minutes or other formal records of proceedings. The issuance or conditional issuance of an administrative natural resources special permit authorized herein by the Department shall not require the making of formal findings or determinations by the Department or by any other Town department or agency, except as may be required by the Environmental Conservation Law or Chapter 75 of the Town Code.
D.
Receipt of applications. All applications for administrative natural resources special permits shall be submitted to and received for the Town by the Building Inspector, in the same manner as he receives and processes all other applications for natural resources special permits. The Building Inspector shall accept only applications which he finds to be facially complete and for which the appropriate fee has been received. One copy of each application accepted shall be forwarded immediately to the Planning Department, the Town Engineer, the Director of Natural Resources, and the Town Trustees (where applicable). Within five days after receipt of the application, the Town Engineer and the Director of Natural Resources shall advise the Planning Department as to whether they require additional information from the applicant.
[Amended 4-13-2007 by L.L. No. 14-2007]
E.
Review of applications. The Planning Department shall review every application forwarded to the Department by the Building Inspector for completeness. Within 10 days after receipt of the application by the Town Building Inspector, the Planning Department shall issue either a notice of complete application as specified below or a request to the applicant for additional information. The Department shall thereafter collect and compile any information necessary to an informed and thorough review of the application, shall conduct a site inspection, and shall formulate its analysis and recommendations regarding proper disposition of the application, including appropriate mitigation measures in the event a permit should issue. The Department shall solicit comments and recommendations from the Department of Natural Resources, the Town Engineer, and the Town Trustees (where applicable), which shall have a maximum of 14 days to respond. After receipt of all information necessary to meet the above requirements, and at the end of any comment period prescribed in Subsection F, the Planning Department shall either issue an administrative natural resources special permit or shall refer the matter to the Zoning Board of Appeals for public hearing and decision because one or more of the conditions listed in Subsection J below are found to exist. If for any such reason it is determined that a particular application cannot be further processed administratively by the Planning Department, the Board of Appeals shall be so informed by the Department, and the Board shall schedule and hold a public hearing on the application at the earliest practicable time and shall thereafter proceed to decide the application in the usual manner.
[Amended 4-13-2007 by L.L. No. 14-2007]
F.
Publication and notice; comment period. Except as to applications made pursuant to § 255-4-28 hereof for coastal restoration projects or the repair or reconstruction of certain coastal structures, which are governed by the provisions of Subsection H, once an application is deemed complete the Planning Department shall send a notice of complete application to the Board of Appeals, the official newspaper, and the applicant. If one or more official Town forms have been designed for these purposes, such forms shall be employed. Notice sent by the Department to the official newspaper shall be in form ready to be published, shall state that the application is one which may result in the issuance of a permit by the Department without a public hearing being held thereon, and shall inform the public that comments on the application or requests that a public hearing be held must be received by the Town within 20 days after the date of publication in the official newspaper (the "notice date"). Notice sent by the Department to the applicant must inform the applicant of his responsibilities to post the property and to mail copies of the notice of application or other similar approved form to all neighboring property owners as detailed in § 255-9-23 hereof. Notices sent by the Department to the applicant for forwarding to neighbors shall inform such persons that comments on the application or requests that a public hearing be held thereon must be received by the Town within 20 days of the "notice date."
[Amended 4-13-2007 by L.L. No. 14-2007]
G.
Final administrative processing. If none of the conditions listed in Subsection J below are found to exist, a draft natural resources special permit may be prepared by the Department. This permit shall be mailed by the Planning Department with a cover letter informing the applicant that, unless he submits to the Planning Department within 10 days a written request for modification of the draft permit or an objection to one or more conditions of the draft permit, the final permit will issue as originally drafted. Any objection or modification request so submitted shall be considered by the Planning Department, which may elect to modify the final permit accordingly. If such a modification is made, the final permit issued by the Planning Department shall reflect the modification; otherwise it shall be identical to the originally issued draft.
[Amended 4-13-2007 by L.L. No. 14-2007]
H.
Expedited review for coastal restoration projects and the repair or reconstruction of certain coastal structures. In the case of an application for a coastal restoration project or for the repair or reconstruction of certain coastal structures, as enumerated in and pursuant to § 255-4-28 hereof, the publication, notice, and public comment requirements of Subsection F shall not apply. In such applications, after receipt of all information required by the Planning Department pursuant to Subsection E, the Department shall either issue an administrative natural resources special permit or, within five days, refer the matter to the Zoning Board of Appeals, in accordance with the procedures for all other administrative natural resources special permits. At the request of an applicant for an expedited permit under this subsection, the Planning Department may waive the preparation and mailing of a draft permit as would be required by Subsection G. Where the Planning Department finds that the work proposed is neither a coastal restoration project nor the repair or reconstruction of a coastal structure as authorized in § 255-4-28, the application may not be processed under this subsection and shall be subject to the procedural requirements governing all other applications for administrative natural resources special permits.
[Amended 4-13-2007 by L.L. No. 14-2007]
I.
Appeals; hearing de novo. An applicant may appeal the Planning Department's decision not to issue an administrative natural resources special permit or the imposition in any permit issued by the Department of one or more particular conditions. Any such appeal shall be deemed procedurally and for all other purposes an entirely new application to the Board of Appeals for a nonadministrative natural resources special permit, and the Board of Appeals shall hear and decide the matter on that basis. The Board may make use of documents and materials already submitted by the applicant or produced by the Planning Department. No new fee shall be charged an applicant for the further processing of the application.
[Amended 4-13-2007 by L.L. No. 14-2007]
J.
Exceptions. The following applications for natural resources special permits shall be processed and heard by the Zoning Board of Appeals in the ordinary manner and shall not be eligible for administrative review and approval by the Planning Department:
(1)
Applications requiring the grant of one or more variances.
(2)
Applications for which the Planning Department recommends preparation of a draft environmental impact statement.
(3)
Applications for which the Planning Department recommends purchase by the Town of all or part of the property involved.
(4)
Applications which the Town Natural Resources Director, Town Planning Director or any member of the Board of Appeals requests be heard and determined by the Board of Appeals, provided that such request shall have been made in writing to the Board of Appeals prior to issuance of the final administrative natural resources permit by the Planning Department.
(5)
Applications as to which there is substantial public controversy. Substantial public controversy shall be deemed to exist in any case where the Town has timely received from one or more persons a clearly articulated, factually based allegation in writing that issuance of the requested natural resources special permit would cause the loss, diminishment or despoliation of a natural feature designated in § 255-4-15 of this chapter.
§ 255-8-85 Validity of Zoning Board of Appeals' determination.
[Added 3-1-2012 by L.L. No. 5-2012]
Time for obtaining a building permit. A determination from the Zoning Board of Appeals shall be valid for a period of three years from the date on which the Board certifies that all conditions of the determination have been met. The Zoning Board of Appeals may by resolution extend the determination for additional one-year periods.
§ 255-8-88 Notice required in all cases.
No waiver of notice. The preceding sections shall not be deemed to waive the requirements of Article IX of this chapter regarding publishing, sign posting or other required notice for variance, special permit or other applications which may be made to the Board of Appeals. Notices in the official newspaper for variances or permits of the type listed in these sections shall state that the application is of a type for which a public hearing may be waived if no written objections are received within the period prescribed in the notice.
§ 255-8-100 Violations.
[Amended 9-4-1998 by L.L. No. 30-1998]
It shall be a violation of this chapter, subject to the provisions of Article X hereof for any person to do any of the following:
A.
Failure to obtain variance. To undertake or commence a use or activity which does not comply with one or more physical, dimensional or use requirements of this chapter without having first obtained a variance of those requirements from the Zoning Board of Appeals.
B.
Failure to obtain special permit. To undertake or commence a use or activity for which this chapter requires the issuance of a special permit by the Board of Appeals without having first obtained said special permit.
C.
Violation of conditions of a grant of variance. To violate or fail to comply with a condition or requirement of any variance granted by the Board of Appeals pursuant to this article.
D.
Violation of conditions of special permit. To violate or fail to comply with a condition or requirement of a special permit issued by the Board of Appeals.
In addition, for a period of three years from the date of filing of a determination of the Board of Appeals which grants one or more variances or issues a special permit, the Board shall retain jurisdiction and shall have during such period the right to modify, suspend or revoke its determination, in accordance with the standards and procedures for such continuing jurisdiction set forth in § 255-9-25 of this chapter. See also § 255-5-100 hereof. |
