East Rockaway City Zoning Code
ARTICLE XVI
Zoning Board of Appeals
§ 288-127 Establishment.
[Amended 7-6-2005 by L.L. No. 2-2005[1]]
The Board of Trustees of the Incorporated Village of East Rockaway shall appoint a Board of Appeals consisting of five members, each of whom shall serve for a term of five years, and one alternate member who shall serve for a term of one year, which Board of Appeals shall hear and decide appeals from and review any order, requirement, decision or determination made by an administrative officer or board charged with the enforcement of any ordinance adopted pursuant to this chapter.
A.
It shall, also, hear and decide all matters referred to it, or upon which it is required to pass under this chapter or the Village Law of the State of New York.
B.
Such appeal may be taken by any person aggrieved or by any officer, board or bureau of the Village.
C.
Such Board of Appeals shall have all the rights, powers and duties now granted or imposed upon it by the Village Law of the State of New York.
[1]
Editor's Note: This local law also superseded Village Law § 7-712, Subdivision (11), as its applied to the Village, to read as follows:
11. Alternate members. a. A village board of trustees may, by local law or as a part of the local law creating the zoning board of appeals, establish alternate zoning board of appeals member positions for purposes of substituting for a member in the event such member is absent or otherwise unable to serve. Alternate members of the zoning board of appeals shall be appointed by the mayor, subject to the approval of the board of trustees, for terms established by the village board of trustees.
b. The chairperson of the zoning board of appeals may designate an alternate member to substitute for a member when such member is absent or otherwise unable to serve. When so designated, the alternate member shall possess all the powers and responsibilities of such member of the board. Such designation shall be entered into the minutes of the initial zoning board of appeals meeting at which the substitution is made.
§ 288-128 Powers and duties.
A.
The Board of Appeals shall have all the powers and duties prescribed by Village Law and by this chapter, which powers and duties are summarized and more particularly specified as follows, provided that none of the following sections shall be deemed to limit any of the power of the Board of Appeals that is conferred by the Village Law.
[Amended 12-14-2015 by L.L. No. 4-2015; 5-13-2019 by L.L. No. 4-2019]
B.
On appeal from an order, requirement, decision or determination made by an administrative official, or on request from any official or agency of the Village, the Board of Appeals shall have the authority to decide any question involving the interpretation of any provision of this chapter, including determination of the exact application of the rules specified in §§ 288-81 through 288-93. The Board of Appeals is authorized and empowered to hear and decide all applications for permits involving any use subject to specific standards referred to it under Chapter 101, Building Construction.
C.
Where the strict application of any of the requirements of this chapter, in the case of an exceptionally irregular, narrow, shallow or steep lot or other exceptional physical conditions would result in practical difficulty or unnecessary hardship that would deprive the owner of the reasonable use of the land or building involved, but in no other case, the Board of Appeals shall have the power, upon appeal, to vary or adjust the strict application of the regulations or provisions of this chapter. No adjustment in the strict application of any provisions of this chapter shall be granted by the Board of Appeals unless it finds that:
(1)
There are special circumstances or conditions, fully described in the findings of the Board of Appeals, applying to the building or land for which the adjustment is sought, which circumstances or conditions are peculiar to such land or building and do apply generally to land or buildings in the neighborhood.
(2)
For reasons fully set forth in the findings of the Board, the aforesaid circumstances or conditions are such that the particular application of the provisions of this chapter would deprive the applicant of the reasonable use of such land or building, and the granting of the adjustment is necessary for the reasonable use of the land or building, and the adjustment as granted by the Board is the minimum adjustment that will accomplish the purpose.
(3)
The granting of the adjustment is in harmony with the general purposes and intent of this chapter and of the Land Use Plan, and will not be injurious to the neighborhood or otherwise detrimental to the public welfare.
D.
In accordance with Chapter 244, Signs, the Board of Appeals may authorize the issuance of permits for certain signs in districts in which such signs are permitted.
E.
In all cases where the Board of Appeals authorizes the issuance of a building permit or occupancy permit under any of the above powers, it shall be the duty of said Board to impose such conditions and safeguards as may be required to protect the public health, safety, morals and general welfare.
§ 288-129 Manner of taking appeals and applications.
All appeals and applications to the Board of Appeals shall be taken in the manner prescribed by law and within such time as shall be prescribed by the Board of Appeals by general rule. All such appeals and applications shall be in writing on forms prescribed by the Board, and each appeal or application shall fully set forth the circumstances of the case.
A.
Every appeal or application shall refer to the specific provision of the ordinance 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 for which it is claimed that the same should be granted or the use for which a permit is sought.
B.
Every decision of the Board of Appeals shall be recorded in accordance with standard forms adopted by the Board and shall fully set forth the circumstances of the case and the findings on which the decision was based.
§ 288-130 Minutes of meetings.
At all hearings before the Board of Appeals, on appeals and on applications, the minutes of the hearings shall be taken by a stenographic reporter, unless the same is waived by the Chairman or Acting Chairman of the Board of Zoning Appeals.
§ 288-131 Court review.
Any person or persons jointly or severally aggrieved by any decision of the Board of Appeals or any officer, department, board or bureau of the Village may apply to the Supreme Court for relief in the manner provided for by law.
§ 288-132 Rules of procedure; notice requirements.
[Amended 12-13-2004 by L.L. No. 3-2004]
A.
The Board of Appeals shall make rules as to the manner of filing appeals or applications for special use permits or special exceptions or variances from the terms of this chapter and as to any other matter requiring action by said Board.
B.
Upon the filing with the Board of Appeals of an appeal or of an application for a special use permit or special exception or variance from the terms of this chapter and upon payment of required fees, the Board shall fix a time and place for a public hearing thereon and shall give notice of such hearing as follows:
C.
Notice of hearing shall state the location of the building or premises, the name of the owner and applicant and the general nature of the application. Any specific variance or other relief from the Zoning Code not duly noticed as stated in Subsection B above and included in the mailing as in Subsection E below, shall be cause for the cancellation of a scheduled public hearing, and the applicant must then request a new date for said hearing and republish and remail notice at the applicant's expense, as was required for the original hearing.
D.
Cost and expense of providing the above notice shall be borne by the applicant.
E.
Mailing of notices; rescheduling of public hearing.
(1)
The applicant or his/her authorized agent shall mail notice of the hearing, postmarked no less than 10 days nor more than 20 days before the hearing, to the owners of all properties located within 200 feet of the exterior limits of the subject property as shown on the current tax roll:
(a)
Notice of hearing addressed to the owners of properties that are directly adjacent to the subject property shall be sent by certified mail return receipt requested. For purposes of this subsection, "adjacent" shall include property located on the opposite side of any street or right-of-way.
(b)
Notice of hearing addressed to the owners of all other properties located within 200 feet of the exterior limits of the subject property shall be sent by first class mail.
(2)
The applicant or his/her authorized agent shall also file an affidavit of mailing with the Board of Appeals office no less than two business days before the hearing. Said affidavit shall contain a sworn statement by the affiant that he/she is the person that actually mailed the notices and a list of the names and addresses of the property owners that were notified and the manner in which they were mailed notice. The affidavit shall be accompanied by the receipts for those notices mailed by certified mail and any return receipts received at the time the affidavit is filed. Failure to mail the notices as required by Subsection B above and/or provide the affidavit of mailing to the Board of Appeals office as required herein may result in postponement of the public hearing.
F.
Posting of signs. In addition to the mailing of notice as required by Subsection E above, the applicant or his/her authorized agent shall also post a sign on each frontage of the subject property giving notice that an application is pending before the Board of Appeals and the nature of that application, as well as the date, time and place at which the public hearing will take place.
(1)
The sign(s) shall be 20 inches by 30 inches and shall be supplied to the applicant by the Village Building Department for a fee. Said sign(s) shall be located at the center of the frontage of the subject property, not more than 10 feet back from the property line. It shall be located not less than two feet nor more than six feet above grade and it must be clearly visible from the street. On or before the date and time of the public hearing the applicant or his/her agent shall certify, in writing, in a notarized affidavit to the Board, that he/she has erected the sign as described herein. At the discretion of the Board, the failure to erect the sign or submit the affidavit may result in the cancellation of the hearing.
(2)
Such sign or signs shall be displayed for a period of not less than 10 days immediately preceding the public hearing and shall be removed by the applicant or his/her agent within three days after the hearing has taken place.
§ 288-133 Limitation of considerations.
Wherever, under the provisions of this chapter or the Village Law of the State of New York, the Board of Appeals is required to review any order, requirement, decision or determination made by an administrative official charged with the enforcement of this chapter, or whenever it is required to hear and decide any matters referred to it upon which said Board may be required to pass and upon any and all other matters where its approval, consent or permit is required, the Board, in its consideration and determination, shall confine itself to the purposes expressed in the Village Law and in this chapter, namely, that such chapter is enacted for the purpose of promoting the health, safety, morals or the general welfare of the community.
§ 288-134 Determination and considerations.
In all matters where appeal is made to said Board for relief from the strict letter of this chapter, the Board of Appeals shall determine and vary the application of the provisions of this chapter in harmony with the general purpose and intent of the zoning laws of the State of New York applicable to villages and of this chapter.
A.
The determination of the Board shall be made in accordance with the provisions of the Village Law concerning a comprehensive plan and design set forth in said Village Law and in this chapter to lessen congestion of the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; and to facilitate the adequate provisions of transportation, water, sewerage, schools, parks and other public requirements.
B.
The deliberations and determinations of said Board shall be made with reasonable consideration, among other things as to:
(1)
The character of the district.
(2)
Its peculiar suitability for particular uses.
(3)
The conservation of property values.
(4)
Encouraging the most appropriate use of land throughout the Village of East Rockaway.
(5)
The direction of building development.
(6)
The practical difficulty for unnecessary hardship is created by this chapter and not by the act of the applicant.
(7)
Such difficulty not common to others in the neighborhood or district.
§ 288-135 Imposition of conditions.
[Added 3-12-2007 by L.L. No. 2-2007]
A.
The Board of Appeals shall, in the granting of any use variance or area variance, have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed use of the property.
B.
Such conditions shall be consistent with the spirit and intent this chapter, and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.[1]
[1]
Editor's Note: Former § 288-111.2, Conditions governing variances from the off-street parking requirements, added 3-12-2007 by L.L. No. 2-2007, which immediately followed this section, was repealed 11-15-2010 by L.L. No. 10-2010.
§ 288-135.1 Application of regulations.
[Added 2-10-2025 by L.L. No. 1-2025]
A.
Legislative intent. The Board of Trustees hereby finds that a shortage of municipal and private off-street parking exists within the Village, thus creating congestion and also causing a negative impact upon the viability of the Village's business community. The Board also finds that an alternate method of obtaining a parking variance other than that set forth in Article XVI of the Village Code will be in the best interests of the Village and will promote the health, safety and welfare of the community. Accordingly, in order to further the goal of creating future municipal and private off-street parking in the Village, the Board hereby seeks to establish a Parking Trust Fund.
B.
Creation of parking trust fund. There is hereby created a Parking Trust Fund in the Incorporated Village of East Rockaway for the purpose of receiving funds upon the granting of alternate parking variances and for the further purpose of providing a source of funds for the provision of future municipal off-street parking, including the acquisition of land for said purpose.
C.
Alternate parking variance procedure. In addition to the granting of parking variances pursuant to Article XVI of the Village Code, the Zoning Board of Appeals shall be authorized to grant an alternate form of variance as set forth herein. The Zoning Board of Appeals may vary the parking requirements established in this section by reducing the number of parking spaces required for a specific use or structure at the property under consideration, provided that any such variance shall be granted subject to a condition requiring a payment to the Village of the sum of up to $7,500 per parking space so waived, varied or modified for deposit by the Village into the Parking Trust Fund.
D.
Dedicated trust fund. Any moneys deposited into the Parking Trust Fund shall constitute a trust fund to be used by the Board of Trustees exclusively for municipal off-street parking, including the acquisition, improvement and maintenance of land, facilities or parking equipment for said purpose.
E.
Payment required. Payment of the required fee to the Parking Trust Fund pursuant to an alternate parking variance grant of the Zoning Board of Appeals shall be a prerequisite to the issuance of a building permit or other municipal certificate.