Head Of The Harbor City Zoning Code
ARTICLE XII
Board of Appeals
§ 165-52 Board of Appeals.
[Amended 8-18-2010 by L.L. No. 4-2010]
A.
Board of Appeals continued. The Zoning Board of Appeals (also referred to herein as the "Board of Appeals" or the "Zoning Board"), created by the Zoning Code adopted on June 29, 1974, and in continuous existence since that time, is hereby continued.
B.
Terms of members. The current members of the Board and their terms of office shall continue as heretofore established. If a vacancy on the Board shall occur otherwise than by the expiration of a member's term, the Board of Trustees shall appoint a new member for the unexpired term.
C.
Village Board members ineligible. No person who is a member of the Board of Trustees shall be eligible for membership on the Board of Appeals.
D.
Appointments of members and alternate members. The Mayor shall appoint the Board of Appeals and two alternate members subject to the approval of the Board of Trustees.
E.
Removal of members. The Mayor shall have the power to remove any member of the Board of Appeals for cause and after a public hearing.
F.
Chairperson and Vice Chairperson. The Mayor shall designate a Chairperson subject to the approval of the Board of Trustees and the Board of Appeals shall appoint a Vice Chairperson.
G.
Duties of Chairperson and Vice Chairperson. All meetings of the Board of Appeals shall be held at the call of the Chairperson and at such other times as the Board may determine. The Chairperson, or in his absence the Vice Chairperson, may administer oaths and compel the attendance of witnesses.
H.
Reappointment. To be eligible for reappointment each member must have completed the annual training required under Village Law § 7-712.
§ 165-53 Powers and duties.
The Board of Appeals shall have all the powers, duties and authority vested in it by the Village Law of the State of New York and by this Part 1, including but not limited to the power to adopt from time to time such rules of procedure, not inconsistent with law, as it may determine to be necessary.
§ 165-54 Interpretation of provisions.
On appeal from an order, requirement, decision or determination made by an administrative official, the Board of Appeals shall decide any question involving the interpretation of any provision of this Part 1, including determination of the exact location of any district boundary line if uncertainty remains after reference to the provisions of Article III hereof.
§ 165-55 Variances.
[Amended 2-15-2005 by L.L. No. 3-2005]
A.
Use variances.
(1)
The Board of Appeals, on appeal from the decision or determination of the administrative officer charged with the enforcement of such 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:
(a)
The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent 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)
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.
(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.
§ 165-56 Conditions and safeguards.
In all cases where the Board of Appeals grants a variance under any of the powers described above, it shall be the duty of said Board to impose such conditions and safeguards as may be required to protect the public health, safety, morals and general welfare and to ensure continual compliance with these provisions. If a variance is granted to a person who has violated a provision of this Part 1, the Building Inspector may require the submission of revised drawings showing the conditions approved by the variance before withdrawing a stop order.
§ 165-57 Manner of taking appeals.
All appeals and applications to the Board of Appeals shall be taken in the manner prescribed by law and within such time as shall be prescribed by the Board of Appeals by general rule. All such appeals and applications shall be in writing on such forms as may be required by the Board of Appeals. Each appeal or application shall fully set forth the circumstances of the case. Every appeal or application shall refer to the specific provision of this Part 1 involved and shall exactly set forth, as the case may be, the interpretation that is claimed, the details of the adjustment that is applied for and the grounds for which it is claimed that the same should be granted. Every decision of the Board of Appeals shall fully set forth the circumstances of the case and the findings on which the decision is based.
§ 165-58 Fees and deposits.
[Amended 5-20-2020 by L.L. No. 2-2020]
§ 165-59 Accessory structures in environmentally or historically significant areas.
[Added 3-24-1984 by L.L. No. 1-1984; amended 1-19-1988 by L.L. No. 1-1988]
When the Board of Appeals finds that all or part of an environmentally significant area may be harmed by the strict application of § 165-25 of this Part 1 in the construction of an accessory structure on a lot approved by the Planning Board under § 165-15, the Board of Appeals may suspend § 165-25 for that accessory structure to the extent necessary to protect the environmentally significant area, with due regard to the policy and purposes of this Part 1 in § 165-3 and with respect to minimum front yard depth, minimum side yard depth and minimum rear yard depth. In all other cases it shall apply the standards of § 165-25 for the location of sites of accessory structures.
§ 165-60 Improvements in environmentally significant areas.
[Amended 4-21-1984 by L.L. No. 4-1984]
If the Board of Zoning Appeals finds that all or part of an environmentally significant area may be harmed by the strict application of § 165-25 of this Part 1 to an applicant's property which contains all or part of such an area, it may suspend the application of § 165-25 to the improvement, to the extent necessary to protect the area, with due regard to the policy and purposes of this Part 1 in § 165-3 and with respect to minimum front yard depth, minimum side yard depth and minimum rear yard depth, but it shall not permit a main building to be constructed within 80 feet of another main building. Whether or not the requirements of § 165-25 are suspended for an applicant's property, the Board shall require that the sites of all improvements be selected to minimize harm to the environmentally significant area and neighboring properties, and it may attach special conditions regarding construction to its approval.