East Hampton Village
City Zoning Code
City Zoning Code
§ 278-7
Board of Appeals; variances; special permits; fees. 1
[Amended 10-2-1991 by L.L. No. 9-1991; 10-2-1991 by L.L. No. 12-1991; 4-17-1992 by L.L. No. 9-1992; 11-19-1993 by L.L. No. 23-1993; 10-18-1996 by L.L. No. 21-1996; 10-18-1996 by L.L. No. 22-1996; 6-20-1997 by L.L. No. 12-1997; 9-18-1998 by L.L. No. 15-1998; 3-15-2002 by L.L. No. 4-2002; 2-17-2006 by L.L. No. 5-2006; 2-17-2006 by L.L. No. 6-2006; 1-18-2008 by L.L. No. 2-2008; 9-19-2008 by L.L. No. 11-2008; 10-1-2009 by L.L. No. 10-2009; 7-29-2011 by Ord. No. 7-2011; 7-31-2012 by L.L. No. 21-2012; 1-18-2013 by L.L. No. 3-2013; 7-31-2014 by L.L. No. 14-2014; 11-21-2014 by L.L. No. 21-2014; 2-16-2018 by L.L. No. 4-2018; 4-19-2024 by L.L. No. 9-2024; 4-25-2025 by L.L. No. 7-2025; 7-30-2025 by L.L. No. 17-2025]
A.
Board continued; findings; legislative intent. The Board of Appeals created by the Board of Trustees, adopted on May 19, 1925, and in continuous existence since that time, is hereby continued. However, the Village Board finds that it is in the interest of the welfare of the Village to shorten the current five-year term of office of the members of the Zoning Board of Appeals. Pursuant to the Village's municipal home rule powers, the Village Board is empowered to enact local laws in relation to the health, safety, and welfare of persons or property in the Village and in relation to the powers, duties, qualifications, number, mode of selection, and removal and terms of office of the officers and employees. It is the intent and purpose of this section to supersede § 7-712(4) of the Village Law in order to modify the term of office of members of the Zoning Board of Appeals to three years.
(1)
Terms established. The term of office of members of the Zoning Board of Appeals is established as three years. Pursuant to the authority set forth in Municipal Home Rule Law §§ 10[1][ii][a](1) and (12) and 10[1][ii][e](3), Village Law § 7-712(4) which, by its terms, effectively fixes a five-year term of office for members of a five-member Zoning Board of Appeals, is hereby superseded. Board members shall continue to serve staggered terms.
(2)
Terms affected. This section shall be applicable to all appointments, including reappointments, made on, or after the effective date of this section.
(3)
The Village Board of Trustees, at any time after the effective date hereof, may appoint to the Zoning Board of Appeals two alternate members.
(4)
Role of alternate members. Alternate members shall, if appointed, serve in place of any member of the Zoning Board of Appeals who is absent or unable to attend a public hearing of the Zoning Board of Appeals. In the event that one of the alternate members does serve in place of a Board member, said alternate Board member shall serve in place of that Board member for the duration of the application (i.e., from the initial hearing of the concerned application to the ultimate decision and any rehearing thereof), and said alternate Board member shall ultimately cast one vote in connection with that application.
(5)
Other. The method of appointment, shall be as prescribed by § 7-712 of the Village Law, unless and until this section shall have been amended pursuant to the authority of the Village Board of Trustees under the Municipal Home Rule Law.
(6)
Each Board member and alternate Board member shall be permitted two unexcused absences per year of their appointment (each of said two absences to be approved by the Chairperson of the Board) from public hearings of the Zoning Board of Appeals.
B.
Jurisdiction. The Board of Appeals shall have jurisdiction to hear and decide the following:
(1)
Appeals. Applications brought by aggrieved persons from interpretations of provisions of this chapter made by the Building Inspector or from other determinations made by him.
(2)
Interpretations. Applications brought directly to the Board of Appeals by any local agency for interpretations of provisions of this chapter.
(3)
Variances. Applications brought by persons for variances from the strict application of provisions of this chapter or of Chapter 163 of this Code.
(4)
Special permits. Applications brought by persons for special permits.
C.
Variances.
(1)
Use variances. "Use variances" shall mean the authorization of the Board of Appeals for the use of land for a purpose which is otherwise not allowed or is prohibited by this chapter, including but not limited to the conversion of a nonconforming use to a use other than one which is more conforming.
(a)
No use variance shall be granted by the 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:
[1]
The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence.
[2]
The alleged hardship relating to the property in question is unique and does not apply to a substantial portion of the district or neighborhood.
[3]
The requested use variance, if granted, will not alter the essential character of the neighborhood.
[4]
The alleged hardship has not been self-created.
(b)
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 proved 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.
(2)
Area variances. "Area variances" shall mean the authorization by the Board of Appeals for the use of land which is not allowed by the dimensional or physical requirements of this chapter.
(a)
In making its determination, the 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 of Appeals shall also consider:
[1]
Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the grant of the area variance.
[2]
Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance.
[3]
Whether the requested area variance is substantial.
[4]
Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.
[5]
Whether 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 an area variance.
(b)
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.
(c)
Additional requirements for variances to § 278-6C and D shall be as follows:
[1]
In addition to the criteria set forth above, the Board of Appeals, before granting a variance from the parking requirements in the business districts, shall also make an affirmative finding that the applicant has demonstrated practical difficulty and that significant economic injury would result from a denial thereof.
[2]
Every decision of the Zoning Board of Appeals which grants a variance from the parking space requirements of § 278-6C and D for off-street parking shall clearly set forth the nature and extent of the reduction by specifying the number of spaces required to be provided pursuant to said section and the number of spaces required to be provided by the Zoning Board of Appeals, with the difference constituting the number of spaces for which the variance is granted.
[3]
Every determination granted by the Zoning Board of Appeals which varies the requirements of § 278-6C and D for off-street parking, except for variances from § 278- 6C and D granted specifically to allow for the construction of new affordable housing or the conversion of an existing building or a portion of an existing building into an affordable housing unit or units, shall be made subject to a condition requiring the payment to the Village of East Hampton of a sum of $10,000, or such other amount as the Board of Trustees may hereafter affix by resolution, for each space or part of a space for which a variance is granted, which sum shall constitute a trust fund to be used by the Board of Trustees exclusively for public off-street parking purposes, including the acquisition and improvement of land for such purposes. "Affordable housing," for purposes of this subsection, shall mean housing for which a maximum monthly rental (excluding utilities) does not exceed 120% of the fair-market rent for existing housing promulgated for the Nassau-Suffolk primary metropolitan statistical area and published annually in the Federal Register by the Secretary of the United States Department of Housing and Urban Development. Variances granted from § 278-6C and D to allow the establishment of such affordable housing shall be exempt from payment of the fee otherwise required under this provision, but shall be subject to a condition that restrictions are recorded in the County Clerk's office to ensure the continued use of the premises as affordable housing.
[4]
There is hereby continued a Village of East Hampton Public Off-Street Parking Trust Fund, to be used by the Board of Trustees exclusively for public off-street parking purposes, including the acquisition and improvement of land for such purposes.
(d)
Additional provisions related to applications for the extension, expansion or alteration of a nonconforming use or the buildings or structures related to a nonconforming use.
[1]
Applications for the extension or alteration of nonconforming uses and buildings and structures related to such uses and the erection of new buildings and structures on any lots used for nonconforming uses shall comply with the procedures and standards for area variance applications. All such applications, except those related to lots used solely for residential purposes, shall not be deemed complete, and therefore ready for a public hearing, until the Design Review Board has concluded its preliminary review pursuant to Chapter 121 of the Code.
[2]
With respect to a lot improved with a single-family residence which is deemed a nonconforming use solely because the lot is also improved with no more than one other building that might otherwise be characterized as an accessory building if it did not contain cooking and/or sleeping facilities, no variance relief shall be required for the proposed extension or alteration of the principal single-family residence, as long as the single-family residence and the proposed expansion conform with all dimensional requirements. This exemption also applies to the construction of new accessory buildings and structures on such a lot, as long as they are permitted in the district and conform to all dimensional requirements. This exemption does not apply to any structures on a lot improved with more than one single-family residence, each of which may be occupied lawfully by separate, independent families, nor does it apply to the extension, expansion or alteration of a building containing sleeping or cooking facilities other than the principal one-family residence on the lot.
[3]
No variance shall be granted to permit the introduction of any outdoor use, including outdoor dining, to a preexisting nonconforming commercial use in a residential district, or to permit the expansion or extension of any such outdoor use, and any variance granted to permit the reconstruction or alteration of any such lawfully existing outdoor use shall not exceed 100% of the lawfully preexisting area of such outdoor use.
D.
Special permits.
(1)
The Board of Appeals, as lead agency pursuant to the State Environmental Quality Review Act, upon application after due notice and public hearing, may issue special permits for the following uses which are allowed by special permit only. Any such application for a special permit shall not be deemed complete, and therefore ready for a public hearing, until the Design Review Board has concluded its preliminary review pursuant to Chapter 121 of the East Hampton Village Code. A special permit shall be required for:
(a)
The conversion of an existing nonconforming use and the buildings or structures related to such use into a use more conforming, except that the conversion of an existing nonconforming use to a multiple-dwelling use, including but not limited to condominium or cooperative units, shall not be considered more conforming.
(b)
The construction, extension, conversion or alteration of public, private, institutional and charitable uses, including schools, public libraries, museums, churches, parish houses and Sunday school buildings, the buildings of membership clubs devoted to outdoor sports and social and recreational buildings and premises and soldiers' or sailors' memorial buildings, except those for which a chief activity is one customarily carried on as a gainful business, and public or charitable buildings not of a correctional nature.
(2)
Before issuing a special permit, the Board of Appeals must find that the proposed use will not:
(a)
Prevent the orderly and reasonable use of adjacent properties or of properties in adjacent use districts.
(b)
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.
(c)
Adversely affect the safety, health, welfare, comfort, convenience or order of the Village and will be in harmony with the general purposes of this Code and the Village's Comprehensive Plan.
(3)
Before issuing a special permit, the Board of Appeals shall give consideration to:
(a)
The character of the existing and probable development of uses of the district and the suitability of the proposed use within that district.
(b)
The desire to conserve property values and to encourage the most appropriate uses of land.
(c)
The effect that the proposed use may have upon vehicular traffic congestion on public streets or highways.
(d)
Whether the proposed use or materials incident thereto or produced thereby may give off obnoxious gases, odors, smoke or soot.
(e)
Whether the proposed use will cause disturbing emissions of electrical discharges, dust, light, vibration or noise.
(f)
Whether the operations in pursuance of the proposed 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 Village or by another competent governmental agency.
(g)
The necessity for bituminous-surfaced space for purposes of off-street parking of vehicles incidental to the proposed 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 proposed use shall be made.
(h)
Whether a hazard to life, limb or property because of fire, flood, erosion or panic may be created by reason of or as a result of the proposed 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 said plot.
(i)
Whether the proposed use or the structure to be used therefor will cause an overcrowding of the land or undue concentration of the population.
(j)
Whether the plot area is sufficient, appropriate and adequate for the proposed use and the reasonably anticipated operation and expansion thereof.
(k)
Whether the proposed use to be operated is unreasonably near to a church, school, theater, recreational area or any other place of public assembly.
(4)
In granting special permits, the Board of Appeals shall impose such conditions and safeguards as it may deem appropriate in preserving and protecting the spirit and objectives of this Code.
(5)
All special permits granted pursuant to this section shall be conditioned upon review by the Design Review Board in conformance with Chapter 121 of the East Hampton Village Code.
E.
Fees, procedure and other submission requirements.
(1)
All applications or appeals to the Board of Appeals shall be accompanied by a fee payable to the Incorporated Village of East Hampton, in an amount which shall be fixed from time to time by resolution of the Board of Trustees.
(a)
All appeals and applications made to the Board of Appeals shall be in writing and submitted on the form required by the Board. Each application shall fully set forth the relief requested and shall refer to the specific provisions of this chapter implicated.
(b)
Each applicant shall be provided with a list which shall include all properties located within a 300-foot radius of the premises which is the subject of the application.
(c)
The Board shall fix a time and place for a public hearing thereon and shall provide for the giving of notice at least 14 days prior to the date thereof, as follows:
[1]
By publishing a notice in the official newspaper. Proof of publication is to be provided to the Village Clerk in advance of the public hearing scheduled for the application.
[2]
If the land involved in the application is located within 500 feet of the boundary of any other municipality, notice of the public hearing shall also be mailed by the applicant to the Municipal Clerk of each municipality, via certified mail, return receipt requested, and proof of such mailing, including the mailing receipts, shall be filed by the applicant with the Village Clerk in advance of the public hearing.
[3]
The applicant shall provide notice via certified mail, return receipt requested, to each property (as per the list provided pursuant to § 278-7E(1)(c)[1] and [2] above) located within a 300-foot radius of the premises which is the subject of the application. After the applicant has provided the required notice, the applicant shall submit and provide an affidavit of notification and proof of such mailing, including the mailing receipts, to the Village Clerk in advance of the public hearing thereon.
(2)
A stormwater pollution prevention plan (SWPPP), where required pursuant to Chapter 248, shall be required for approval of a coastal erosion management permit. The SWPPP shall meet the performance and design criteria and standards of Chapter 248, and the coastal erosion hazard area permit shall be consistent with the provisions of Chapter 248 of the Code.
F.
Administration of applications. The following Boards shall administer the following applications of this Code:
(1)
Design Review Board:
(a)
Chapter 121, Design and Site Plan Review.
(b)
Chapter 176, Preservation of Historic Areas.
(c)
Chapter 278, Zoning.
[1]
Sign permits.
[2]
Uses in Limited Office District.
[3]
Site plan review of special permit applications for nonresidential uses in residential districts.
(2)
Planning Board:
(a)
Chapter 42, Planning Board.
(b)
Chapter 252, Subdivision of Land.
(3)
Zoning Board of Appeals:
(a)
Chapter 101, Coastal Erosion Hazard Areas.
(b)
Chapter 124, Preservation of Dunes.
(c)
Chapter 160, Flood Damage Prevention.
(d)
Chapter 163, Wetlands. If an application is being administered by another agency and requires a permit pursuant to Chapter 163, that other agency shall have the responsibility of issuing the freshwater wetlands permit.
[1]
Editor's Note: On March 16, 2007, the Board of Trustees adopted a resolution requiring New York State mandated annual training for all Planning Board, Design Review Board, and Zoning Board of Appeals members. The resolution is on file in the office of the Village Clerk and available for public inspection during regular office hours.