Elmsford City Zoning Code
§ 335-22
Board of Appeals.
A.
Organization and membership. There shall be a Board of Appeals of five members pursuant to the provisions of Article 7, § 7-712 et. seq. of the Village Law of the State of New York. The members of such Board shall be resident citizens of the Village of Elmsford. The members of the existing Board shall continue to serve out their terms. The present Chairman shall continue to serve out his existing term and his successor shall be appointed by the Board of Trustees.
[Amended 5-16-2005 by L.L. No. 2-2005]
B.
Alternate members. The Board of Trustees may appoint an alternate member of the Board of Appeals. Such alternate member shall attend meetings of the Board of Appeals but shall only participate in its deliberations and vote in the event that a member of the Board of Appeals is absent or otherwise unable to act with respect to a particular matter. The Chairperson of the Board of Appeals may designate an alternate member to substitute for a member when such member is absent or otherwise unable to act with respect to a particular application or matter before the Board of Appeals. When so designated, the alternate member shall possess all the powers and responsibilities of such member of the Board of Appeals. Such designation shall be entered into the minutes of the initial Board of Appeals meeting at which the substitution is made. All provisions of Village Law § 7-712 which pertain to Zoning Board of Appeals members, including, without limitation, training and continuing education, attendance, conflict of interest, compensation, eligibility, vacancy in office, removal, and service on other boards, shall also apply to alternate members.
[Amended 5-16-2005 by L.L. No. 2-2005]
C.
Meetings and minutes. All meetings of the Board of Appeals shall be open to the public to the extent provided in Article 7 of the Public Officers Law. The presence of a majority of the members shall be necessary for a quorum. The Board of Appeals shall keep minutes of its proceedings, showing the vote of each member on every question, or, if any member is absent or fails to vote, indicating that fact, and shall also keep records of its examination and other official actions. Every rule, determination, regulation, amendment or repeal thereof, and every order requirement and decision of the Board shall be filed in the office of the Village Clerk and shall thereafter be a public record within five business days after the day such decision is rendered.
[Amended 5-16-2005 by L.L. No. 2-2005]
D.
Powers and duties. The Board of Appeals shall have all the powers and duties prescribed by law, which powers and duties are summarized and more particularly specified as follows:
[Added 4-16-1962; amended 5-16-2005 by L.L. No. 2-2005]
(1)
Appeals and variances.
(a)
The Board of Appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, interpretation or determination appealed from and shall make such order, requirement, decision, interpretation or determination as in its opinion ought to have been made in the matter by the administrative official charged with the enforcement of this chapter and to that end shall have all the powers of the administrative official from whose order, requirement, decision, interpretation or determination the appeal is taken.
(b)
Use variances.
[1]
The Board of Appeals, on appeal from the decision or determination of the administrative official charged with the enforcement of this chapter, shall have the power to grant use variances, as defined herein.
[2]
No such 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:
[a]
The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;
[b]
That 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]
That the requested use variance, if granted, will not alter the essential character of the neighborhood; and
[d]
That the alleged hardship has not been self-created.
[3]
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 proven 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.
(c)
Area variances.
[1]
The Board of Appeals shall have the power, upon an appeal from a decision or determination of the administrative official charged with the enforcement of this chapter, to grant area variances, as defined herein.
[2]
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 shall also consider:
[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;
[d]
Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and
[e]
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 the area variance.
[3]
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.
(d)
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 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.
(e)
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.
(2)
The Board of Appeals shall have such other powers and duties as the Board of Trustees shall from time to time determine.
E.
Appeal or application.
[Added 7-12-1965; amended 7-1-1968; 5-16-2005 by L.L. No. 2-2005]
(1)
An appeal shall be taken within 60 days of filing the order or decision appealed from in the Town Clerk's office, 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.
(2)
Notice of hearing. Notice of any hearing before the Board of Appeals shall be published by the Board 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 the parties and to the Regional State Park Commission having jurisdiction over such appeal, at least five days before such hearing. In addition, the Board 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. Proof of such mailing 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. 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. Such signs shall be issued by the Secretary of the Board of Appeals upon receipt. of a security deposit, in an amount to be set forth by resolution by the Board of Trustees in the Master Fee Schedule as same may be amended from time to time, which security deposit shall be retained by the Village in the event that the applicant fails to return the sign within 10 days after the close of the public hearing.
(3)
Referral to Board of Trustees and Planning Commission. The Board of Appeals shall, not less than five days prior to the date of the required public hearing, transmit a copy of the application, together with a copy of the notice of the public hearing to be held thereon, to the Board of Trustees and the Planning Commission. The Planning Commission may submit to the Board of Appeals an advisory opinion on such application.
(4)
Hearing. The Board of Appeals shall conduct a public hearing on any application made pursuant to this chapter. At such public hearing all those present and wishing to be heard shall be given an opportunity to be heard. If the Board of Appeals or the applicant determines that a stenographic record of such hearing is required, the cost of the same, including the transcript thereof, shall be paid by the applicant. If such a stenographic record is requested, the same shall be filed as provided in Subsection E(6) hereof.
(5)
Decision.
(a)
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 of Appeals, which shall be incorporated in the approved minutes of the Board of Appeals, shall be filed in the office of the Village Clerk within five business days after the day such minutes are approved, and a copy of such resolution shall be filed with the Board of Trustees, the Planning Commission and the Building Inspector and one copy mailed to the applicant.
(b)
Vote required. The concurring vote of a majority of the members of the Board of Appeals shall be necessary to reverse any order, requirement, decision or determination of any administrative official, or to decide in favor of the applicant any matter upon which it is required to pass under this chapter, or to effect any variation in this chapter.
(6)
Rehearing. A motion for the Board of Appeals to hold a rehearing to review any order, decision or determination of the Board of Appeals not previously reviewed may be made by any member of the Board of Appeals. A unanimous vote of all members of the Board of Appeals 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 of Appeals may reverse, modify or annul its original order, decision or determination upon the unanimous vote of all members then present, provided that the Board of Appeals 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.
F.
Special exception (conditional use) permits by the Board of Appeals.
[Added 12-19-1966]
(1)
After public hearing held pursuant to the rules and regulations of the Board of Appeals, the Board may permit in a Residence R-1 District two-family dwellings which were in existence at the time of the effective date of this amending ordinance and converted from one-family dwellings to two-family dwellings in violation of this chapter of the Village of Elmsford, but which, through inadvertence, were allowed to continue, and also permit in such district the erection and use of new two-family dwellings; provided, however, that such special exception use complies with the standards, both general and special, set forth in Subsection E of this section for the guidance of the Board of Appeals in granting or denying applications for special permits, and subject to appropriate regulations, conditions and safeguards which will ensure that the granting of such special exception use shall not impair the use, enjoyment and value of adjacent residential properties and shall not be detrimental to the prevailing residential character of the neighborhood.
(2)
Board of Appeals may impose further conditions. Upon finding that such general and special standards have been fully met, the Board of Appeals may grant such special exception, and in so doing may impose any conditions that it may deem necessary to accomplish the reasonable application of said standards. The Board of Appeals may deny any application for a special exception which in its judgment is not in accordance with said general or special standards. Said Board may require as a condition of the granting of any special exception that it shall be periodically renewed, or said Board may grant a temporary special exception subject to adequate guaranties that the use covered will be terminated at the end of the period specified, or such extension thereof as may be granted by said Board, provided that any such renewal or extension shall be subject to the same procedure as specified herein for the original granting of the special exception involved, and to conformity with general special standards.
(3)
Time limit. The owner or lessee of any structure or building located in a Residence R-1 District which has been converted from a one-family to a two-family dwelling in violation of this chapter, must within a period of 30 days from the effective date of this chapter apply to the Board of Appeals for the special exception mentioned and described in this Subsection F, specifying in such application the character and extent of the nonconformity of such building or structure.
(4)
Cessation of nonconforming use. Any nonconforming building or structure located in a Residence R-1 District, for which a special exception has not been applied for by the owner or lessee within the time limit above provided, shall be discontinued and made conforming within a period of 45 days from the effective date of this chapter.
(5)
Violations, penalties and remedies. In case the owner or lessee of a nonconforming building or structure in a Residence R-1 District fails to discontinue the nonconforming use of such building or structure, and make the same conform within the limit of time fixed in the preceding paragraphs hereof, then in that event such building or structure and the use thereof shall be deemed a violation of this chapter of the Village of Elmsford, and the owner or lessee shall be subject to all the penalties provided in said ordinance for a violation of the same, and the local authorities of the Village, in addition to other remedies, may institute any appropriate action or proceeding to prevent such unlawful maintenance or use, to restore, correct or abate such violation, to prevent the occupancy of such building, structure or land, or to prevent any illegal act, conduct, business or use in or about such premises.