Hastings On Hudson City Zoning Code
ARTICLE XIV
Board of Appeals; Variances
§ 295-139 Board of Appeals.
A.
Establishment and organization.
(1)
The Board of Appeals heretofore established pursuant to Village Law is hereby continued with all powers and duties prescribed by law and by this chapter.
(2)
The Board of Appeals shall continue to consist of five members appointed for five year terms. The members of the Board of Appeals in office at the time this chapter takes effect shall continue in office until the end of the term for which they are appointed and have been duly qualified. No person shall serve on the Board of Appeals for more than two consecutive terms.
[Amended 6-15-1999 by L.L. No. 3-1999]
(3)
The Mayor shall appoint the Board of Appeals and the Chairperson of the Board of Appeals, subject to the approval of the Board of Trustees. In the absence of a Chairperson, the Board of Appeals may designate one of its members to serve as Acting Chairperson.
[Amended 6-15-1999 by L.L. No. 3-1999]
(4)
The Mayor shall appoint an alternate member of the Board of Appeals, subject to the approval of the Board of Trustees, to serve for a period of five years. The alternate member shall substitute for a member of the Board of Appeals in the absence of a member or in the event that a member is unable to participate because of a conflict of interest. All provisions of this chapter relating to Zoning Board of Appeals members' attendance, eligibility, vacancy in office, removal and service on other boards shall also apply to the alternate member.
[Added 6-15-1999 by L.L. No. 3-1999]
(5)
No person who is a member of the Board of Trustees shall be eligible for membership on the Board of Appeals.
(6)
Any member of the Board of Appeals may be removed by the Mayor for cause and after a public hearing.
(7)
In the event of a vacancy in office, the Mayor shall appoint a successor, who shall serve for the unexpired term of the member whose place has become vacant.
[Amended 6-15-1999 by L.L. No. 3-1999]
B.
Meetings; minutes; records.
(1)
All meetings of the Board of Appeals shall be held at the call of the Chairperson and at such other times as the Board of Appeals may determine.
(2)
Meetings of the Board of Appeals shall be open to the public to the extent provided in Article 7 of the Public Officers Law.
(3)
The Chairperson or, in his absence, the Acting Chairperson may administer oaths and compel the attendance of witnesses.
[Amended 6-15-1999 by L.L. No. 3-1999]
(4)
The Board of Appeals shall keep minutes of its proceedings. The minutes shall show the vote of each member upon every question, or, if absent or failing to vote, indicate such fact. The Board of Appeals shall also keep records of its examinations and other official actions.
(5)
Every rule, regulation, every amendment or repeal thereof and every order, requirement, decision, interpretation or determination of the Board of Appeals shall be filed in the office of the Board and with the Village Clerk and Village Manager within five business days and shall be a public record. A copy of each decision on any appeal shall also be filed with the Planning Board and the Building Inspector.
(6)
The Board of Appeals may employ such clerical or other staff assistance, subject to the approval of the Village Manager, provided that it shall not incur expenses beyond the amount of the appropriation made and then available for that purpose.
(7)
The Chairperson of the Board of Appeals may designate the alternate member to substitute for a member of the Board of Appeals when such member is absent or is unable to participate because of a conflict of interest on an application or matter before the Board of Appeals. When so designated, the alternate member shall possess all the powers and responsibilities of a member of the Board. Such designation shall be entered into the minutes of the initial Zoning Board of Appeals meeting at which the substitution is made.
[Added 6-15-1999 by L.L. No. 3-1999]
C.
Powers and duties. The Board of Appeals shall have all the powers and duties prescribed by law and by this chapter, including, without limitation, the following:
(1)
Upon application by any person aggrieved or by an officer, department, board or bureau of the Village, the Board of Appeals shall hear and decide appeals from and review any order, requirement, decision, interpretation or determination made by the administrative official charged with the enforcement of this chapter. On such an appeal the Board of Appeals shall have the power to decide any question involving the interpretation of any provision of this chapter, including the determination of the exact location of any district boundary if uncertainty with respect thereto remains after exhausting the rules specified in § 295-8 above.
(4)
The Board of Appeals shall have the power to hear and decide all matters referred to it upon which it is required to pass under this chapter.
§ 295-140 Time and notices of appeal; transmittal of record.
A.
Appeals shall be taken within 60 days after the filing in the Village Clerk's office of any order, requirement, decision, interpretation or determination of the administrative officer charged with enforcement of this chapter, by filing with the officer from whom the appeal is taken and with the Board of Appeals a notice of appeal. The officer from whom the appeal is taken shall forthwith transmit to the Board of Appeals all of the papers constituting the record upon which the action appealed from was taken.
[Amended 6-15-1999 by L.L. No. 3-1999]
B.
All notices of appeal shall be made in writing on official Village forms, accompanied by a fee in the amount set by the Board of Trustees pursuant to § 295-152 of this chapter, and shall state:
(1)
The relief requested and the grounds upon which the request is based.
(2)
The specific provisions of this chapter involved.
(3)
The order, requirement, decision or determination to be reviewed.
(4)
The exact interpretation of this chapter that is claimed.
(5)
The details of any variance sought and the grounds for granting it.
C.
Each notice of appeal shall certify the ownership of the property and the nature of the interest of the applicant if other than the owner of record.
§ 295-141 (Reserved) [1]
[1]
Editor’s Note: Former § 295-141, Referral to Planning Board, was repealed 8-21-2018 by L.L. No. 3-2018.
§ 295-142 Stay of proceedings.
An appeal stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the Board of Appeals after the notice of appeal shall have been filed with him or her 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 granted by the Board of Appeals or by a court of record on application, on notice to the officer from whom the appeal is taken, and on due cause shown.
§ 295-143 Notice of hearing.
A.
The Board of Appeals shall fix a reasonable time for the hearing of the appeal and give due notice thereof to the parties and the Planning Board at least 14 days before the hearing. The notice shall state the time and place of the hearing, the street address, sheet, lot and block, zoning district and location of the premises; the name of the applicant; and a brief description of the nature of the appeal.
B.
Not less than 10 days before the hearing date, that notice shall be published at least once in a newspaper of general circulation in the Village.
C.
In addition, the applicant shall provide actual notice to certain property owners as follows:
[Amended 2-1-2005 by L.L. No. 1-2005; 8-22-2017 by L.L. No. 2-2017]
(1)
The applicant shall either deliver by hand or send by certified mail a copy of the notice of the hearing to all persons who, according to the latest completed assessment roll of the Town of Greenburgh, own property within a radius of 300 feet of the property lines of the subject property; provided, however, that where, in the opinion of the Building Inspector, the appeal may affect property located more than 300 feet from the property lines of the subject property, the applicant shall thus notify all owners of property within that affected area, as determined by the Building Inspector, but need not notify any person owning property more than 500 feet from the property lines of the subject property.
(2)
The notices shall be delivered by hand not less than 10 days, or mailed or otherwise delivered not less than 13 days, before the date of the hearing to the street address of each of the properties specified in Subsection C(1), whether or not the owner resides there, and to any other address indicated by the assessment roll as the address of an absentee owner.
(3)
The public hearing shall not be held unless the applicant has filed with the Board the proof of the mailing of notice or, if the notice was delivered by hand, a written affidavit of service; provided, however, that the Board of Appeals may excuse the failure to notify each property owner pursuant to this Subsection C upon proof by the applicant of diligent efforts to comply with the requirements of this Subsection C and upon a showing that reasonable grounds exist for that failure to comply, including, without limitation, difficulties in determining lot lines or the names or addresses of the property owners.
D.
At least 10 days before such hearing, the Board 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 County Planning Board as required by § 239-m of the General Municipal Law.
§ 295-144 Hearing; decision.
A.
At the hearing on the appeal, any party may appear in person or by agent or attorney.
B.
The Board of Appeals shall decide the appeal within 62 days after the final hearing on the appeal. The time within which the Board of Appeals must render its decision may be extended by mutual consent of the applicant and the Board.
C.
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 be made in the matter by the administrative official charged with enforcement of this chapter and to that end shall have all the powers of the officer from whom the appeal is taken.
D.
The concurring vote of a majority of the Board of Appeals shall be necessary to reverse any order, requirement, decision, interpretation or determination of any such 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.
E.
All decisions of the Board of Appeals shall be by resolution. Each decision shall state in detail the conditions and safeguards, if any, which the Board of Appeals deems to be required and accordingly imposes.
F.
The Board of Appeals shall file a copy of each decision with the Village Clerk within five business days after the decision is made and it shall be a public record; the decision shall have no force or effect until it is thus filed. A copy of the decision shall also be mailed to the applicant.[1]
[1]
Editor’s Note: Former Subsection G, regarding disapproval of a proposal, which immediately followed, was repealed 8-21-2018 by L.L. No. 3-2018.
§ 295-145 Rehearings.
[Amended 6-15-1999 by L.L. No. 3-1999]
A motion for the Zoning Board of Appeals to hold a rehearing to review any order, decision or determination of the Board of Appeals 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 may reverse, modify or annul its original order, decision or determination upon the unanimous vote of all members then present, provided that 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.
§ 295-146 Variances.
A.
The Board of Appeals, on appeal from the decision or determination of the administrative officer charged with enforcement of this chapter, shall have the power to grant use variances and area variances, as defined herein.
B.
Use variances.
(1)
"Use variance" shall mean the authorization by the Board of Appeals for the use of land for a purpose that is otherwise not allowed or is prohibited by the applicable zoning regulations.
(2)
No 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)
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)
The requested use variance, if granted, will not alter the essential character of the neighborhood; and
(d)
The alleged hardship has not been self-created.
(3)
The Board of Appeals, in the granting of a use variance, 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.
C.
Area variances.
(1)
"Area variance" shall mean the authorization by the Board of Appeals for the use of land in a manner that is not allowed by the dimensional or physical requirements of the applicable zoning regulations.
(2)
In determining whether to grant an area variance, 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 of Appeals 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.
(e)
Whether the alleged difficulty was self-created, which consideration shall be relevant to the Board of Appeals but shall not necessarily preclude the granting of the area variance.
(3)
The Board of Appeals, in the granting of an area variance, 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.
Imposition of conditions. 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 this chapter, and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.
§ 295-147 Expiration of variances; application of provisions governing nonconformity.
A.
Variances granted pursuant to this chapter and which cannot fully be exercised without a building permit shall automatically lapse and become null and void if a building permit issued in accordance with the variance is not obtained within 12 months after it has been granted. If a building permit is obtained, the variance shall automatically lapse and become null and void:
B.
Variances granted before the effective date of this chapter and which cannot fully be exercised without a building permit shall automatically lapse and become null and void if a building permit issued in accordance with the variance is not obtained within 12 months after it has been granted. If a building permit is obtained, the variance shall automatically lapse and become null and void:
C.
Variances granted pursuant to this chapter and which can be fully exercised without a building permit shall automatically lapse and become null and void to the extent the variance is not fully exercised within six months after it has been granted.
D.
Variances granted before the effective date of this chapter and which can be fully exercised without a building permit shall automatically lapse and become null and void to the extent the variance is not fully exercised within six months after the effective date of this chapter.
E.
Variances shall be subject to the same requirements and restrictions as lawfully nonconforming lots, structures, buildings and uses, including, without limitation, the provisions of this chapter relating to the abandonment of nonconforming lots, structures, buildings and uses.