Harriman City Zoning Code
ARTICLE IX
Board of Appeals
§ 140-48 Establishment, organization.
A.
Establishment. There shall be a Board of Appeals of five members pursuant to the applicable provisions of the Village Law of the State of New York.
B.
Appointment and term of office. The Mayor shall appoint the Board of Appeals and the Chairperson thereof, subject to the approval of the Board of Trustees. The Mayor shall have the power to remove, after public hearing, any member of the Zoning Board of Appeals for cause. If a vacancy shall occur otherwise than by expiration of term, the Mayor shall appoint the new member for the unexpired term. At the expiration of each original member's appointment, the replacement member shall be appointed by the Board of Trustees for a term which shall be equal in years to the number of members of the Board.
[Amended 4-11-2001 by L.L. No. 3-2001]
C. BOARD
Definitions. For the purposes of this article, the following terms shall have the meanings indicated:
The duly appointed Zoning Board of Appeals of the Village of Harriman.
D.
Membership. The Board officers shall consist of a Chairman, Deputy Chairman, Secretary and Attorney.
E.
Chairman. The Chairman shall be designated by the Village Board. He shall perform all the duties required by law, ordinance and this article. He shall preside at all the meetings of the Board. The Chairman may appoint any committees necessary to carry out the business of the Board. The Chairman may administer oaths and compel the attendance of any witness necessary to carry out the business of the Board. The Chairman's signature shall be the official signature of the Board.
F.
Deputy Chairman. The Chairman may designate either of the four members as Deputy Chairman to serve in the absence of the Chairman. The Deputy Chairman shall have all the powers of the Chairman in his absence, disability or disqualification.
G.
Secretary. The Secretary shall be appointed by the Board. The Secretary is not a member of the Board. The Secretary shall keep minutes of all Board meetings and proceedings, keep a record of those members of the Board present and record the vote of each member. In the absence of the Secretary, the Chairman may request either member of the Board to assume the Secretary's duties.
H.
Attorney. The Attorney for the Board is not a member of the Board. The Attorney shall render such professional services and advice as the Board may require. In the event that the Attorney shall disqualify himself in any proceeding before the Board because of a conflict of interest or otherwise, the Chairman may, in the discretion of the Board, request from the Village Board an attorney to render services and advice in such proceedings. The presence of the Attorney is not necessary to the full conduct of hearings, proceedings or decisions.
§ 140-49 Meetings.
A.
The regular meeting of the Board shall be held on the first Wednesday of the month at 7:30 p.m. in the Village Hall. The Chairman may schedule such special meetings at specified times or locations as may be deemed necessary to the conduct of the business of the Board. No meeting of the Chairman and members is necessary if no business is before the Board. The Chairman will instruct the Secretary to make the appropriate entries to the minutes.
[Amended 10-10-2006 by L.L. No. 5-2006]
B.
A quorum shall consist of at least three members of the Board. No meeting, proceeding or hearing shall be held nor any decision or action taken in the absence of a quorum. Any meeting, hearing or proceeding attended by less than a quorum will be rescheduled to the next regularly scheduled Board meeting date or to a special date as designated by the Chairman. All hearings subsequently scheduled will be readvertised in accordance with the requirements of applicable law.
C.
All matters shall be decided by a roll call vote. Decisions on any matter before the Board shall require the affirmative vote of a majority of the Board. No member shall vote on the determination of any matter requiring a public hearing unless he has attended the public hearing(s) thereon. A tie vote of the Board shall mean the rejection or denial of the appeal or application under consideration.
§ 140-50 Powers and duties.
A.
The Board of Appeals shall perform all the duties and have all the powers prescribed in Article 7 of the Village Law of the State of New York and as herein more particularly provided. However, none of the following provisions shall be deemed to limit any power of the Board that is conferred by law.
B.
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, the Board of Appeals is hereby authorized to decide any of the following questions:
§ 140-51 Appeals.
A.
Filing of appeals. An appeal shall be taken within 60 days of the action of the administrative official appealed from. Any appeal not so taken shall not be entertained by the Board. An appeal shall be taken by filing with the Chairman and the official from whom the appeal is taken a notice of appeal. Said notice of appeal shall identify the administrative official appealed from and the date of the action. Appeals may also be taken without prior administrative action as for interpretation or variance from existing law or any matter for which the appellant may wish to obtain an interpretation or decision by the Board. The officer from whom the appeal is taken shall forthwith transmit to the Chairman all papers, documents or other material constituting the record upon which the action appealed from was taken. Copies of documents will be acceptable at the discretion of the Chairman.
[Amended 4-11-2001 by L.L. No. 3-2001]
B.
Notice of appeal. Notice of appeal shall be filed with the Village Clerk within the period prescribed in Subsection A. Such service upon the Village Clerk shall be deemed proper service upon the Board of Appeals and the administrative official from whom the appeal is taken, if any. The Village Clerk shall immediately forward the notice of appeal to the Chairman and a copy to the administrative official. The Chairman shall distribute the record of appeal to the Attorney and Board members. No appeal shall be heard unless the record of appeal is furnished to the Chairman within the time prescribed.
C.
Contents of record of appeal.
(1)
The record of appeal shall consist of the following material in regard to the following matter:
(a)
Appeals regarding any yard, court or area requirement of the Zoning Law of the Village of Harriman:
[1]
A copy of the letter, opinion, decision or requirement or ruling appealed from.
[2]
A written executed petition stating in detail all the pertinent facts relating to the appeal, including the date of construction of any building located on the subject property, and stating the grounds for the appeal.
[3]
A plot plan, survey or diagram of the subject premises accurately showing the dimensions of all actual or proposed structures on the subject premises, the distances of all actual or proposed side yards, rear yards, front yards, courts, driveways, abutting streets and, except for appeals involving court areas or locations, the distance from the side and rear lot lines to existing structures, if any, on adjoining properties closer than 300 feet to said lot lines. If such an appeal is based upon practical difficulties arising out of topographical conditions, such as differences in elevation, streams or outcropping of rocks or the like, the plot plan or survey should sufficiently indicate the nature and extent of said conditions.
(b)
Appeals regarding any use requirements of the Zoning Law of the Village of Harriman:
[1]
A copy of the letter, opinion, decision or requirement appealed from.
[2]
A written executed petition stating in detail all the pertinent facts relating to the appeal, including the date of acquisition of the subject property by the appellant or his principal, and stating the grounds therefor.
[3]
A diagram identifying the property upon which the use will be located and the types and number of uses if any, within a one-thousand-foot radius of the proposed use.
(c)
Appeals from the requirements of § 7-736 of the Village Law:
[1]
A copy of the letter, opinion, decision or requirement or ruling appealed from.
[2]
A written executed petition stating in detail all the pertinent facts relating to the appeal and stating the grounds therefor.
[3]
A plot plan, survey or diagram showing accurately the size of the subject property, the location of the proposed structure thereon, the amount of frontage on any abutting road, the distance of the proposed structure from any abutting street or highway, if the property does not abut a state, county or town highway, and the dimensions, locations and type of access to the property from the nearest state, county or town highway.
(d)
Applications on any matter referred to it or upon which it has power to act under the Village of Harriman Zoning Law not covered by Subsection C(1)(a) or (b) of this section:
[1]
A copy of the letter, opinion, decision, requirement or ruling appealed from, if any.
[2]
A written executed petition stating in detail all pertinent facts relating to the appeal or application and the grounds or reasons for the appeal.
[3]
Any other information or data that the Board may reasonably require after the public hearing.
(2)
Any record of appeal may be supplemented by a memorandum of law or any other information or data the applicant feels may support or explain the appeal.
D.
Waivers and modifications authorized. The Board, upon good cause, may modify or waive any or all of the requirements of Subsection C.
E.
Additional information. The Board may require any additional information it deems necessary to act upon any appeal or application before or after the public hearing thereon.
F.
A filing fee, pursuant to Village of Harriman Code § 74-5C and escrow deposit in accordance with § 74-5G, as determined by resolution of the Village of Board of Trustees, shall be deposited at the time of the filing of the notice of appeal or application for hearing. In addition to the filing fee, each applicant shalt deposit sufficient funds to defray the Board's legal costs, publication costs, engineering fees and other expenses in accordance with § 74-5G, connected with the review for each nonresidential application, with the exception of variances, permitted accessory uses, interpretations or appeals filed with respect to parcels improved by a one- or two-family residence. Upon depletion of the deposit, the applicant shall be required to remit such additional funds as may be reasonably required to defray such expenses as determined by resolution of the Zoning Board.
[Amended 10-12-2004 by L.L. No. 6-2004; 9-9-2014 by L.L. No. 5-2014]
§ 140-52 Hearings.
A.
Time of hearings. After filing of the notice of appeal with the Chairman, the Chairman shall schedule a hearing thereon within 60 days of such filing. Hearings will be held at the regular meetings of the Board or at such special date, time and place designated by the Board.
B.
Notice of hearing. The Board shall give notice of hearing. The notice of hearing shall state the location of the building or property involved, the name of the appellant, the general nature of the question involved, the nature of the relief sought and any other additional information deemed pertinent by the Board.
C.
Publication of notice of hearing.
(1)
The Board of Appeals shall publish in the official newspaper of the Village of Harriman and any other newspaper it may deem necessary the notice of hearing at least five days before the scheduled date of the hearing. For the purpose of this subsection, the hearing date shall be counted as the fifth day.
[Amended 4-11-2001 by L.L. No. 3-2001]
(2)
Copies of the notice of hearing shall also be mailed to the appellant and any property owner or interested party the Board of Appeals deems necessary. Copies will be given to the Zoning Board of Appeals Secretary, who will display one copy in an appropriate space in the Village Hall visible to the general public and distribute copies to the Village Trustees and Village Planning Board. One copy will be mailed to the administrative official from whom the appeal was taken.
[Amended 11-10-2015 by L.L. No. 5-2015]
(3)
The notices required by this subsection shall be issued by the Secretary of the Board of Appeals on 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 of such appeal or application.
(4)
Provided that due notice shall have been published as provided herein and that there shall have been substantial compliance with the remaining provisions of this 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, permit or variance.
§ 140-53 Referrals.
A.
County Planning Agency. Where the land involved in any application for a variance or special permit lies within 500 feet of any existing or proposed county or state park or other recreation area; right-of-way of any existing or proposed county or state parkway, thruway, expressway, road or highway; existing or proposed right-of-way of any stream or drainage channel owned by the county or for which the county has established channel lines; or existing or proposed boundary of any county- or state-owned land on which a public building or institution is situated, such application, accompanied with the notice of the public hearing, shall be forwarded by the Secretary of the Board of Appeals to the Orange County Planning Department for review in accordance with the provisions of §§ 239-l and 239-m of Article 12-B of the General Municipal Law of the State of New York at least 10 days prior to the public hearing. No action shall be taken by the Board of Appeals on such application until the Department's recommendation has been received or 30 days have elapsed after the Department received the full statement of the applicant's proposal.
B.
Other municipalities. If the land involved in an appeal or application lies within 500 feet of the boundary of any other municipality, the Secretary of the Board of Appeals shall also transmit to the Municipal Clerk of such other municipality a copy of the official notice of the public hearing thereof at least 10 days prior to the public hearing.
C.
Other agencies. At least 10 days prior to the 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.
§ 140-54 Variances.
A.
Use variances.
[Amended 4-11-2001 by L.L. No. 3-2001]
(1)
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.
(2)
No such use variance shall be granted by a 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 complete 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 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.
B.
Area variances.[1]
(1)
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 this chapter, to grant area variances as defined herein.
(2)
In making its determination, the Zoning 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.
C.
The needs or desires of a particular owner or tenant or of a particular prospective owner or tenant shall not, either alone or in conjunction with other factors, afford any basis for the granting of a variance. The fact that the improvements already existing at the time of the application are old, obsolete, outmoded or in disrepair or the fact that the property is then unimproved shall not be deemed to make the plight of the property unique or to contribute thereto.
D.
Where the Board finds the zoning classification of a particular property to be conducive to the deprivation of the reasonable use of the land or building by the owner thereof and where the Board deems the same condition to apply generally to other land or buildings in the same neighborhood or district, the Board may call this condition to the attention of the Planning Board.
E.
In all cases where the Board of Appeals grants a variance from the strict application of the requirements of this chapter, it shall be the duty of such Board to attach conditions and safeguards as may be required in order that the result of its action may be as nearly as possible in accordance with the spirit and intent of this chapter.
F.
Unless construction is commenced and diligently prosecuted within six months of the date of the granting of a variance, such variance shall become null and void.
§ 140-55 Decisions.
A.
Time and form. Decisions by the Board shall be made within 62 days of the date of the final hearing. The final decision on any matter before the Board shall be made in a written order signed by the Chairman.
B.
Filing. Decisions of the Board of Appeals on the appeal shall be filed in the office of the Village Clerk within five business days after the day such decision is rendered, and a copy thereof mailed to the applicant. The date of filing of each decision shall be entered in the official records of the Board. Copies of the decision shall be rendered to the appellant, the Village Clerk and the Clerk of any affected municipality given notice of hearing as set forth in § 140-53B.[1]
§ 140-56 Construal.
All the provisions of this chapter relating to the Board of Appeals shall be strictly construed. The Board, as a body of limited jurisdiction, shall act in full conformity with all provisions of law and of this chapter and in strict compliance with all limitations contained therein; provided, however, that if the procedural requirements set forth in this chapter have been substantially observed, no applicant or appellant shall be deprived of the right of application of appeal.
§ 140-57 Appeals from decisions of Board.
Appeal from a decision of the Board of Appeals may be made to the Supreme Court within 30 days after the filing of decisions made by the Board of Appeals with the Village Clerk.