Greenport City Zoning Code
ARTICLE X
Board of Appeals
§ 150-25 Establishment and membership.
There shall be a Board of Appeals of five members pursuant to the provisions of § 7-712 of the Village Law.
§ 150-26 Powers and duties.
The Board of Appeals shall have all the powers and duties prescribed by §§ 7-712-a and 7-712-b of the Village 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, interpretation 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:
B.
Variances.
(1)
Use variances.
(a)
The Board of Appeals, on appeal from the decision or determination of the administrative officer charged with the enforcement of this chapter, shall have the power to grant use variances, as defined herein.
(b)
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:
[1]
The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;
[2]
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;
[3]
That the requested use variance, if granted, will not alter the essential character of the neighborhood; and
[4]
That the alleged hardship has not been self-created.
(c)
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.
(d)
"Use variance" shall mean the authorization by the Board of Appeals for the use of land for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations.
(2)
Area variances.
(a)
The Zoning Board of Appeals shall have the power, upon an appeal from a decision or determination of the administrative official charged with the enforcement of such local law, to grant area variances as defined herein.
(b)
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:
[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 granting 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; and
[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 the area variance.
(c)
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)
"Area variance" shall mean the authorization by the Board of Appeals for the use of land in a manner which is otherwise not allowed by the dimensional or physical requirements of applicable zoning regulations.
C.
Temporary certificate of occupancy.
(1)
The Board of Appeals shall have the power and duty to authorize, upon denial by the Building Inspector of a certificate of occupancy, the issuance of a temporary certificate of occupancy by the Building Inspector for a period of not to exceed 90 days for collection of any alterations that are required under the provision of any law or ordinance or for the collection of a part of an uncompleted building, provided that the Board finds that:
(a)
The denial of a certificate of occupancy prior to completion of the said alterations or of the building would cause unnecessary hardship.
(b)
The safety of the occupants of the building and of adjacent buildings and land would be adequately assured under such terms and conditions as said Board may prescribe.
(2)
Such temporary certificate shall not be construed as in any way altering the respective rights, duties or obligations of the owner or of the Village in regard to the use or occupancy of the land or building or any other matter covered by this chapter.
§ 150-27 Procedure.
The powers and duties of the Board of Appeals shall be exercised in accordance with Village Law § 7-712-a and the following procedure:
A.
The Board of Appeals shall not decide upon any appeal for a variance or for an interpretation of this chapter without first holding a public hearing. Notice of the public hearing and of the substance of the appeal or application shall be given by publication in the official newspaper of the Village at least 10 days before the date of such hearing and by the posting of a placard notice of the public hearing to be posted on the premises by the applicant at least 10 days before the date of such hearing. The placard notice shall be provided by the Building Department, at the cost of the applicant, and shall state information regarding the application and the time, date and place of the hearing. In addition to such published and posted notice, the applicant, at least 10 days prior to the hearing, shall mail a copy of the public notice of the public hearing by certified mail, return receipt requested, to the owners of all properties which lie adjacent to the property that is the subject of the application and all other owners that the Board of Appeals may deem advisable. The list of the names and addresses of the owners of all properties requiring the mailed notice shall be provided to the applicant by the Building Department. Proof of the publication in the form of a sworn statement and proof of the posting and mailing in the form of a sworn statement and the post office return receipts shall be filed with the Village Clerk on or before the date of the hearing. Such notice shall contain the following information:
(1)
A statement that the applicant proposes to apply to the Board of Appeals of the Village for a variance or other specified relief, as the case may be.
(2)
A description sufficient to identify the property which is the subject of the application.
(3)
The zone district classification of such property.
(4)
A detailed statement of the relief sought by the applicant.
(5)
The provisions of this chapter applicable to the relief sought by the applicant.
(6)
A statement that a public hearing with respect to such application will be held by the Board of Appeals of the Village before the relief sought can be granted; that the person to whom the notice is addressed, or his representative, has the right to appear and be heard at such hearing; and the time, location and date upon which the hearing will be held.
B.
In lieu of complying with the provisions of this section, written verified waivers of notice executed by the persons entitled to receive such notice may be filed with the Village Clerk at the time of filing the applications.
C.
Failure to comply with the provisions of this section shall not affect the validity of any action taken by the Board of Appeals.
D.
All appeals and applications made to the Board of Appeals shall be in writing, on forms prescribed by said Board, and shall be accompanied by a fee of not less than the actual and necessary costs of advertising and holding a public hearing. The Board of Appeals may, in its discretion, return to the applicant part or all of the fee paid in the event that the appeal, under § 150-26A, Interpretation, is partially or wholly successful. The fee filed in connection with applications under § 150-26B, Variances, shall not be returnable regardless of disposition of the case by the Board.
E.
Each appeal or application shall fully set forth the circumstances of the case. Every appeal or application shall refer to the specific provision of the article involved and shall exactly set forth the interpretation that is claimed or the details of the variance that is applied for, as the case may be, and the grounds on which it is claimed that the same should be granted.
F.
Should any appeal involve either of the two following conditions, the Secretary of the Board of Appeals shall transmit to the designated office or official a copy of the official notice of the public hearing not later than 10 days prior to the date of the hearing:
(1)
Any change in the boundaries of any district, which change would occur within a distance of one mile of a nuclear power plant or 500 feet of the boundary of any Village, town or county or any boundary of a state park or parkway.
(2)
Any change in the regulations prescribed for any district, any portion of which is located within a distance of one mile of a nuclear power plant or 500 feet of the boundaries listed in Subsection F(1) above. The designated official for counties shall be the Clerk of the County Legislature. In villages and towns, the designated official shall be the Clerk of the municipality. In the case of state parks or parkways, the designated office shall be the Long Island Park Commission.
G.
Prior to the date of any public hearing, the Secretary of the Board of Appeals shall transmit to the Secretary of the Planning Board a copy of any appeal or 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 Board of Appeals.
H.
Should any action by the Board of Appeals involve any of the areas specified in § 150-37, then the matter shall be referred prior to final action by the Board of Appeals to the Suffolk County Planning Commission in accordance with Article XIII of the Suffolk County Charter or as otherwise required by law.
I.
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 shall contain a full record of the findings on which the decision is based. Every decision of said Board shall be by resolution, and each such resolution shall be filed in the office of the Village Clerk by case number, under the heading "Interpretation" or "Variances," together with all documents pertaining thereto. Regarding its decision in each case, the Board of Appeals shall notify the Building Inspector, Village Board, Village Planning Board and the Municipal Clerk of any affected municipality given notice of hearing as set forth in Subsection F above.
J.
All the provisions of this chapter relating to the Board of Appeals shall be strictly construed. Said Board, as a body of jurisdiction, shall act in full conformity with all provisions of law and of this chapter and in strict compliance with all limitations contained therein.
K.
Unless construction is commenced and diligently pursued within six months of the date of the granting of a variance, such variance shall become null and void.