Florida City Zoning Code
ARTICLE X
Zoning Board of Appeals
§ 119-30 Establishment.
[Amended 3-6-2024 by L.L. No. 1-2025]
A.
Pursuant to §§ 7-712 and 7-718 of the Village Law of the State of New York, there shall be a Zoning Board of Appeals consisting of five members to be appointed for a term of five years by the Board of Trustees. The Zoning Board of Appeals shall select a Chairperson and a Secretary from its own membership. The Zoning Board of Appeals already established shall continue to function under the provisions of this chapter, and the members thereof may continue in office until their respective terms expire. No member of the Zoning Board of Appeals shall be a member of the Board of Trustees or the Planning Board. Any vacancy occurring during any term shall be filled by the Village Board of Trustees for the unexpired term only.
B.
The Village of Florida Village Board of Trustees may appoint, at its discretion, up to two individuals to serve as alternate members to serve on the Zoning Board of Appeals whenever a regular member is unable to participate on an application or matter before the Zoning Board of Appeals.
(1)
Alternate members shall be appointed to one year terms with terms expiring on April 1 of each year.
(2)
The Chairperson of the Zoning Board of Appeals shall designate an alternate member to substitute for a member when such member is absent or unable to participate on an application or matter before the Zoning Board of Appeals. When so designated, the alternate member shall possess all the powers and responsibilities of such member. Such designation shall be entered into the minutes of the initial Zoning Board of Appeals meeting at which the substitution is made.
(3)
The alternate member's vote shall be based on the alternate member's own volition and familiarity with the subject matter and shall not be subject to the substituted member's voting preference.
(4)
Alternate members shall regularly attend scheduled meetings and/or work sessions of the Zoning Board of Appeals so as to be available for designation when required and be familiar with the matters before the Zoning Board of Appeals.
(5)
All provisions of state law and the Village of Florida Code relating to Zoning Board of Appeals member eligibility, vacancy in office, removal, compatibility of office and service on other boards, as well as provisions of any state or local law relating to the training and continuing education, shall also apply to alternate members.
§ 119-31 Powers and duties.
The Zoning Board of Appeals (ZBA) shall have all the powers and duties prescribed by law and by this chapter, which are more particularly specified as follows, provided that none of the following provisions shall be deemed to limit any power of the Board that is conferred by law:
A.
Interpretation. On appeal from an order, requirement, decision or determination made by an administrative official or on request by any official board or agency of the Village, to decide any of the following questions:
(1)
Determination of the meaning of any portion of the text of this chapter or of any condition or requirement specified or made under the provisions of this chapter.
(2)
Determination of the exact location of any district boundary shown on the Zoning Map.
B.
Variances.
(1)
Variances. On appeal from an order, requirement, decision or determination made by the Code Enforcement Officer or on referral of an applicant to the Board by an approving agency acting pursuant to this chapter, the Zoning Board of Appeals is authorized to reverse or affirm, wholly or partly, or vary or modify the strict letter of this chapter where its literal interpretation would cause practical difficulties or unnecessary hardships, as defined in this section, in such manner as to observe the spirit of the chapter, to secure public safety and welfare and to do substantial justice.
(a)
Area variances. The ZBA may grant an area variance in the application of the provisions of this chapter. In making its determination, the Board 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 of such grant. In making its determination the Board shall consider whether:
[1]
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;
[2]
The benefit sought by the applicant can be achieved by some method feasible for the applicant to pursue, other than an area variance;
[3]
The requested area variance is substantial;
[4]
The proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district;
[5]
The alleged difficulty was self-created, which consideration shall be relevant to the decision of the ZBA but shall not necessarily preclude the granting of the area variance.
[6]
The ZBA, in granting area variances, shall grant the minimum variance that it deems 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.
(b)
Use variances. The ZBA may grant a use variance relating to the land for a use not allowed in the zoning district in which the land is located as provided in this chapter. In making its determination, the ZBA shall take into consideration that no use variance shall be granted without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship to the applicant. In order to prove unnecessary hardship, the applicant shall demonstrate that for each and every permitted use under this chapter for the district in which the applicant's 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; and
[4]
The alleged hardship has not been self-created. The ZBA, in granting use variances, shall grant the minimum variance that it deems 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.
Imposition of conditions. The ZBA shall, in the granting of use variances, area variances, and any other discretionary relief, have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed use of the property. Such conditions shall be consistent with the spirit and intent of this zoning chapter and shall be imposed for the purpose of minimizing any adverse impact such variance or relief may have on the neighborhood or community.
§ 119-32 Procedure for submission of plans and applications.
The powers and duties of the Board of Appeals shall be exercised in accordance with the with the following procedure and as required by Article 7, § 7-712 of the Village Law:
A.
Opinion of Code Enforcement Officer. If, in the determination of the Code Enforcement Officer, any plan and/or application submitted does not comply with the provisions of this chapter, he shall return one copy of the plans with written disapproval to the applicant and forward one copy of the plans, together with the application, to the Chairman of the Board of Appeals.
B.
Forward of appeal. Within 60 business days after the date of the written disapproval by the Code Enforcement Officer of any such plan and/or application, the applicant may appeal to the Board of Appeals from such ruling by serving upon the Village Clerk, in duplicate, a written notice of appeal, addressed to the Code Enforcement Officer and to the Board of Appeals, of the taking of such an appeal from such decision, specifying the grounds of the appeal. Such service upon the Village Clerk shall be deemed proper service upon the Code Enforcement Officer and upon the Board of Appeals. The Village Clerk shall immediately forward to the Code Enforcement Officer and to the Chairman of the Board of Appeals said notice of appeal.
C.
Chairperson duties. All meetings of the ZBA shall be held at the call of the chairperson and at such other times as such ZBA may determine, and a quorum of the ZBA's membership is required for any meeting. The chairperson or, in the chairperson's absence, the acting chairperson may administer oaths and compel the attendance of witnesses.
D.
Meetings. Meetings of the ZBA shall be open to the public to the extent provided in Article 7 of the New York State Public Officers Law.
E.
Minutes. The ZBA shall keep minutes of its proceedings, showing the vote of each member upon every question or, if absent or failing to vote, indicating such fact, and shall also keep records of its examination and other official actions.
F.
Assistance to Zoning Board of Appeals. The ZBA shall have the authority to call upon any department, agency or employee of the Village for such assistance as shall be deemed necessary and as shall be authorized by the Village Board. Such department, agency or employee shall be reimbursed for any expenses incurred as a result of such assistance.
G.
Appellate jurisdiction. The jurisdiction of the ZBA shall be appellate only and shall be limited to hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation or determination made by an enforcement or administrative official. Such appeal may be taken by any person aggrieved, or by an officer, department, board or bureau of the Village.
H.
Filing of administrative decision and time of appeals.
(1)
Each order, requirement, decision, interpretation or determination of the administrative official charged with the enforcement of the zoning chapter shall be filed in the office of same within five business days from the day it is rendered and shall be a public record. Any failure to so file shall not affect the validity or effective date of what is to be filed. The decision of the Zoning Board of Appeals on the appeal shall be filed in the office of the Village Clerk, and a copy thereof mailed to the applicant.
(2)
An appeal shall be taken within 60 days after the filing of any order, requirement decision, interpretation or determination of the administrative official, by filing with the administrative official and the ZBA a written notice of appeal, specifying the grounds thereof and the relief sought. The administrative official from whom the appeal is taken shall forthwith transmit to the ZBA all the papers constituting the record upon which the action appealed from was taken.
(3)
Each appeal or application shall fully set forth the circumstances of the case, shall refer to the specific provision of the zoning chapter involved and shall exactly set forth, as the case may be, the interpretation that is claimed, the details of the variance or other relief that is applied for and the grounds on which it is claimed that the same should be granted.
(4)
All appeals and applications made to the ZBA shall be accompanied by a fee in accordance with the Fee Schedule of the Village of Florida.
I.
Stay upon appeal. An appeal shall stay all proceedings in furtherance of the action appealed from, unless the administrative official, from whom the appeal is taken, certifies to the ZBA after the notice of appeal shall have been filed with the administrative official, that by reason of facts stated in the certificate, a stay, would, in his or her opinion, cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the ZBA or by a court of record on application, on notice to the administrative official and on due cause shown.
J.
Hearing on appeal. The ZBA shall fix a reasonable time for the hearing of the appeal or other matter referred to it and give public notice of such hearing by publication in a paper of general circulation in the Village at least five days prior to the date thereof. The cost of sending or publishing any notices relating to such appeal, or a reasonable fee relating thereto, shall be borne by the appealing party and shall be paid to the ZBA prior to the hearing of such appeal. Upon the hearing, any party may appear in person, or by agent or attorney.
K.
In addition to such published notice, the Board of Appeals shall cause notice to be given of the substance of every appeal or variance, together with notice of the hearing thereon, by causing notices thereof to be mailed at least five days before the date of said hearing to the owners of all property abutting that held by the applicant in the immediate area, whether or not involved in such appeal or application, and all other owners within 300 feet or such additional distance as the Board of Appeals may deem advisable from the exterior boundaries of the land involved in such appeal or application, as the names of said owners appear on the last-completed assessment roll of the Village. Such notice shall state the nature of the variance request, be sent by regular mail with certificate of mailing requested, and the applicant shall furnish proof of compliance with the notification procedure. Any or all of the notices required by this section shall be issued by the Secretary of the Board of Appeals upon order of the Board of Appeals or upon order of the Chairman of said Board if the appeal or application is received when the Board is not in session and the Chairman deems it necessary or desirable to expedite the public hearing on such appeal or application. Provided that due notice shall have been published as above provided and that there shall have been substantial compliance with the remaining provisions of the subsection, the failure to give notice in exact conformance herewith shall not be deemed to invalidate action taken by the Board of Appeals in connection with the granting of any appeal or variance.
L.
In addition, the applicant shall post a sign on the property which is the subject of the application on or before 15 days prior to the first date of public hearing and shall remove such sign within two days following such hearing. The sign shall be obtained from the Code Enforcement Officer and shall be at least 30 inches by 20 inches, consist of sturdy and serviceable material containing a white background with black letters and shall be placed in a location plainly visible from the most commonly traveled street upon which the property fronts but lo case more than 20 feet back from the front lot line. Such sign shall be not more than three feet above the ground and shall read as follows, in legible lettering at least two inches:
"THE USE OF THIS SITE IS PROPOSED TO BE CHANGED AS FOLLOWS: [DESCRIBE PROPOSED CHANGE] |
THIS MATTER IS SUBJECT TO PUBLIC HEARING AT VILLAGE HALL ON [GIVE DATE AND TIME]." |
M.
Prior to the public hearing on the application, the applicant shall submit a notarized statement to the Board of Appeals certifying full compliance with the requirements set forth above.
(1)
At least 10 days prior to the public hearing, the ZBA shall transmit to the Planning Board a copy of any appeal or application, together with a copy of the notice of such hearing, but only for applications or appeals which require Planning Board approval or a separate application, together with a copy of the notice of such hearing. The Planning Board may submit to the Board of Appeals an advisory opinion on said appeal or application at any time prior to the rendering of a decision by the ZBA. If the Planning Board does not provide comment upon the application or appeal within 30 days of receipt of said application from the ZBA, the Planning Board shall be deemed to have waived its right to provide an advisory opinion.
N.
Time of decision. The Zoning Board of Appeals shall decide upon the appeal within 62 days after the conduct of said hearing. The time within which the ZBA must render its decision may be extended by mutual consent of the applicant and the ZBA.
O.
GML review. Notice to regional state park commission and Orange County Planning Department. At least five days before such hearing, the ZBA shall mail notices thereof to the parties; to the regional state park commission having jurisdiction over any state park or parkway within 500 feet of the property affected by such appeal; and to the Orange County Planning Department, as required by § 239-M of the New York State General Municipal Law, which notice shall be accompanied by a full statement of such proposed action, as defined in § 239-M of the General Municipal Law.
P.
SEQRA. The Zoning Board of Appeals shall comply with the provisions of the State Environmental Quality Review Act (SEQRA) and its implementing regulations.
Q.
Decision of the ZBA. Except for a rehearing as set forth in subsection "N" above, every motion or resolution of the ZBA shall require for its adoption the affirmative vote of a majority of all members of the Zoning Board of Appeals as fully constituted regardless of vacancies or absences. When an action is the subject of a referral to the Orange County Planning Department, the voting provisions of § 239-M of the General Municipal Law shall apply.
R.
Article 78 proceeding. Any person or persons, jointly or severally aggrieved by any decision of the Zoning Board of Appeals or any officer, department, board or bureau of the Village, may apply to the supreme court for review by a proceeding under Article 78 of the Civil Practice Law and Rules. Such proceeding shall be instituted within 30 days after the filing of a decision of the ZBA in the office of the Village Clerk.
S.
Expiration. Unless a building permit has been issued and construction commenced and diligently pursued within 12 months of the date of the granting of a variance, such variance may be revoked after notice and an opportunity to be heard. Extensions may be granted by the ZBA if good cause is demonstrated.
T.
Fees. Engineering fees and legal fees incurred subsequent to Zoning Board of Appeals' decisions shall be paid by the applicant prior to issuance of any permits or certificates of occupancy.
