Harrison City Zoning Code
ARTICLE X
Board of Appeals
§ 235-56 Membership; terms of office; compensation; vacancies; officers.
A.
The Board of Appeals shall consist of seven members, who shall be citizens and residents duly appointed by the Town Board. No person who is a member of the Town Board shall be eligible for membership on such Board of Appeals.
B.
The initial Board of Appeals shall consist of one member appointed for one year, one member appointed for two years, one member appointed for three years, one member appointed for four years and one member appointed for five years. The subsequent appointments shall be for five years each. The Town Board shall have the power to remove, after public hearing any member of the Board of Appeals for cause.
C.
The Board of Appeals shall serve without compensation.
D.
If a vacancy shall occur otherwise than by expiration of term, the Town Board shall appoint the new member for the unexpired term.
E.
The Chairperson shall be appointed by the Town Board. All of the meetings of the Board of Appeals shall be held at the call of the Chairperson and at such other times as such Board may determine. Such chairperson, or in his or her absence, the Acting Chairperson, may administer oaths and compel the attendance of witnesses. In the absence of a Chairperson, the Board of Appeals may designate a member to serve as Acting Chairperson.
§ 235-57 Powers and duties; rules of conduct; meetings; decisions; records.
A.
The Board of Appeals shall have all of the powers and duties prescribed by law and by this chapter.
B.
The Board of Appeals shall have a Secretary to 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 to maintain its records and to also keep records of its examinations and other official actions.
C.
The Board of Appeals shall prescribe rules for the conduct of its affairs and requirements and forms for the submission of applications for its consideration.
D.
Meetings of the Board of Appeals shall be open to the public to the extent provided in Article 7 of the Public Officers Law. A quorum shall consist of four members.
E.
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 such administrative official, or to grant a use variance or area variance. All decisions of the Board of Appeals shall be publicly announced. Every decision of the Board of Appeals shall be by resolution and shall contain a full record of the findings of the Board of Appeals, the evidence considered, the persons who have appeared, the vote or abstention of each member and every other official act of the Board of Appeals in connection with the application. The required findings of the Board of Appeals shall disclose the facts upon which they are based. Every rule, regulation, every amendment or repeal thereof, and every order, requirement, decision or determination of the Board of Appeals shall be filed in the office of the Town Clerk within five business days and shall be a public record.
F.
The Board of Appeals may adjourn at any time for discussion and viewing of the properties. The Board of Appeals shall have the authority to call upon any department, agency or employee of the town for such assistance as shall be deemed necessary and as shall be authorized by the Town Board. Such department, agency or employee may be reimbursed for any expenses incurred as a result of such assistance.
G.
A record shall be established of all variances granted pursuant to action of the Board of Appeals under this chapter. Each case shall be identified by a sequential numbering system and alphabetically by the applicant's name. Said files shall be available for public inspection.
§ 235-58 Jurisdiction; application and public hearing procedure; fees.
A.
The Board of Appeals shall hear and decide appeals from and review any order, requirement, interpretation, determination or decision made by the Building Inspector and, as a matter of original jurisdiction, such matters as this chapter assigns specifically for its hearing and determination. Such appeal may be taken by any person aggrieved, or by an officer, department, board or bureau of the town.
B.
An appeal shall be taken within 60 days after the filing in the Town Clerk's office of any order, requirement, decision, interpretation or determination of the Building Inspector by filing with the Building Inspector and with the Board of Appeals a notice of appeal, specifying the grounds thereof and the relief sought. The Building Inspector shall forthwith transmit to the Board of Appeals all the papers constituting the record upon which the action appealed from was taken. An appeal from an order or decision of the Building Inspector shall be filed in the form required by the Board of Appeals.
C.
An appeal shall stay all proceedings in furtherance of the action appealed from, unless the administrative official charged with the enforcement of such ordinance or local law, from whom the appeal is taken, certifies to the Board of Appeals, after the notice of appeal shall have been filed, 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 Board of Appeals or by a court of record on application, on notice to the administrative official from whom the appeal is taken and on due cause shown.
D.
The application must be accompanied by the signed statement of the Building Inspector, or a photocopy thereof, setting forth that section of the chapter which prohibits the applicant from whatever he proposed to do, in the case of an appeal, or that section of the chapter which specifically authorizes such an application in a case of original jurisdiction. All such applications shall be transmitted promptly to the Board.
E.
The Board of Appeals shall fix a reasonable time and place for a public hearing of the appeal or other matter referred to it and shall provide for the giving of public notice of such hearing by publication in a paper of general circulation in the town not more than 15 days nor less than eight days before the date of the public hearing by publishing a notice in the official newspaper and as set forth in Subsection F below. 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 Board of Appeals before the hearing of such appeal. Upon the hearing, any party may appear in person, or by agent or attorney.
F.
The applicant shall give adequate prior written notice to affected property owners by certified mail, mailed not more than 15 days nor less than eight days before the date of the public hearing, "Affected property owners" shall be defined as owners of properties neighboring the subject property as follows:
(1)
In the R-2.5, R-2, R-1, SB-0, SB-1, SB-35 and SB-100 Districts, property owners within 500 feet of the subject property.
(2)
In the R-1/2 and R-1/3 Districts, property owners within 300 feet of the subject property.
(3)
In all other districts, property owners within 100 feet of the subject property.
H.
At least five days before such hearing, the Secretary of the Board of Appeals shall also mail mandatory referrals or notices 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 County Planning Board or Agency or regional Planning Council, as required by § 239-m, of the General Municipal Law, which notice shall be accompanied by a full statement of such proposed action, as defined in Subdivision 1 of § 239-m of the General Municipal Law and other agencies, as set forth in §§ 277.61 and 277.71 of the Westchester County Administrative Code.
I.
Where a hearing is adjourned, the applicant shall give notice by regular mail to all affected property owners at least seven days before the date on which the matter will be heard.
J.
The Board of Appeals shall decide upon the appeal within 62 days after the conduct of said hearing. The time within which the Board of Appeals must render its decision may be extended by mutual consent of the applicant and the Board of Appeals. The written decision of the Board of Appeals on the appeal shall be filed with the Town Clerk within five business days after the day such decision is rendered, and a copy of the Board of Appeal's written decision shall be served upon the applicant or his attorney personally or by ordinary mail.
K.
At any time prior to the close of a hearing, any person may file with the Board of Appeals a written request to be furnished with a copy of the Board of Appeal's decision at such time as it is filed. A stamped self-addressed envelope and payment of a fee as set forth in the most current resolution of the Town Board fixing the fee pursuant to § 137-1 of the Town Code shall accompany such request.
[Amended 2-21-2007 by L.L. No. 1-2007]
L.
Where the application has been denied by the Board of Appeals, a new application cannot be submitted for at least one year, unless new pertinent facts are presented. Where such a new application is submitted on new facts, it shall meet all of the requirements for an original application. A motion for the Board of Appeals to hold a rehearing to review any order, decision or determination of the Board not previously reheard may be made by any member of the Board. A unanimous vote of all members of the Board then present is required for such rehearing 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 the Board finds that the rights vested in persons acting in good faith in reliance upon the reheard order, decision or determination will not be prejudiced thereby.
M.
The Board may not waive any of the foregoing requirements.
N.
Building permits, authorized by the actions of the Board of Appeals or after the court has reversed or modified the action of the Board, shall automatically expire if construction under the permit is not completed within one year. Extensions of these periods may be granted by the Board of Appeals where good cause is shown.
O.
The fee for applications to the Board of Appeals shall be as set forth in the most current resolution of the Town Board fixing the fee pursuant to § 137-1 of the Town Code.
[Amended 2-21-2007 by L.L. No. 1-2007]
Q.
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 town, 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 Board of Appeals in the office of the Town Clerk.
§ 235-59 Appeals on questions of interpretation.
The Board of Appeals shall, upon appeal, hear and decide:
A.
Any matter where the applicant alleges that the Building Inspector was in error in issuing or refusing to issue a building permit or certificate of occupancy as a result of misinterpreting the meaning, intent or application of any section or part of this chapter.
B.
Any matter where the applicant alleges that the Building Inspector was in error in his determination as to the exact location of a district boundary line on the Zoning Map that forms a part of this chapter.
C.
Any matter that the Building Inspector appeals on grounds of doubt as to the meaning or intent of any provision of this chapter or as to the location of a district boundary line on the Zoning Map.
§ 235-60 Appeals for variances.
A.
The Board of Appeals may reverse or affirm, wholly or partly, or may vary or 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 such ordinance or local law 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.
Guiding principles.
(1)
Every decision by the Board of Appeals granting a variance shall clearly set forth the nature and extent of such variance, including all conditions and safeguards attached thereto.
(2)
The Board of Appeals shall, in the granting of both use variances and area variances, 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 the Zoning Ordinance or Local Law and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community, including, among others, conditions reasonably designed to accomplish the purposes of this chapter and those set forth by way of illustration in § 235-16. Violations of such conditions or safeguards that are a part of the Board of Appeal's decision shall be deemed a violation of this chapter punishable under the provisions of § 235-75.
(3)
Any variance granted by the Board of Appeals pursuant to the provisions of this section shall be construed to be a nonconforming use.
§ 235-61 Specific types of variances.
A.
Definitions. As used in this section:
(1)
"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 variance" shall mean the authorization by the Board of Appeals for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations.
B.
Use variances.
(1)
The Board of Appeals, on appeal from the decision or determination of the administrative official charged with the enforcement of such ordinance or local law, 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, the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence; 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; that the requested use variance, if granted, will not alter the essential character of the neighborhood; and 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 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 ordinance or local law, 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: 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; whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; whether the requested area variance is substantial; whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and 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.
The Board of Appeals shall have authority to grant variances.
(1)
With respect to nonconforming uses, buildings and lots:
(a)
To grant a permit for the enlargement or extension of a nonconforming use or building on the lot occupied by such use or building on the effective date of the provision of this chapter which created such nonconformity, provided that:
[1]
Such enlargement or extension was arranged, intended or designed for such nonconforming use or building on the effective date of this chapter.
[2]
Such enlargement or extension shall not exceed, in all, 50% of the replacement cost of the existing building on the effective date of this chapter, exclusive of foundations.
(b)
To grant a certificate of occupancy for a change in a nonconforming use, provided that:
(2)
To grant a variance modifying the yard requirements of a nonconforming lot.
(4)
(b)
To permit a reduction in the number of off-street parking spaces required or originally installed for a particular use pursuant to §§ 235-37 and 235-38 in cases where the Board of Appeals determines that, with respect to a particular proposed use, there is reasonable analytic evidence with reference to its special character and function, including, among other things, the projected density of employees or other site population or the provision of a communal transportation system, to warrant a finding that the demand for construction of such spaces is, at least in the initial development, less than that required pursuant to §§ 235-37 and 235-38 without transferring such demand to on-street sites or to inadequately improve off-street sites; or with respect to particular existing uses, by reason of diminution in number of persons or in floor area, seating capacity or area, number of employees or change in other factors, the demand for such spaces is less than that required pursuant to §§ 235-37 and 235-38 and that their removal would not result in the transferring of such demand to on-street sites or to inadequately improved off-street sites; provided, however, that any such determination to authorize a reduction in the number of off-street parking spaces and/or truck loading spaces shall be contingent upon the Town Attorney, on behalf of the town, entering into a written agreement with the owner of such property, which shall be in recordable form and recorded in the Land Records Division of the Westchester County Clerk's office, guaranteeing the reservation of an adequate area shown on an approved site plan for the construction of the number of such spaces by which the requirement was reduced or the number of spaces by which an existing parking and/or truck loading facility was reduced, and provided, further, that any such permitted reduction may be automatically rescinded where the Board of Appeals shall subsequently determine that such reduced number has proven inadequate for a period of 90 days, in which case the then owner of such premises shall be found in violation of the requirements of this chapter, and such violation shall become effective within 90 days if the additional required spaces are not constructed and available within such ninety-day period.
(5)
To grant a temporary building permit, for a period not to exceed one year, for a nonconforming building, structure or use incidental to a building or other construction project, including such uses as the storage of building supplies and machinery, a real estate office or model houses located on or near a tract of land where individual properties are being offered for sale, provided that such temporary permits shall be issued upon written agreement by the owner or his agent to remove such building, structure or use or to convert it to a conforming use upon the expiration of the permit; and such permit shall be subject to such reasonable conditions as said Board of Appeals shall determine to be necessary to protect the public health, safety, morals or general welfare. Such permit may be renewed annually, at the direction of the Board of Appeals, for not more than two additional years.