Irvington, NY Zoning Ordinance

"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.

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:

The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;

The alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood;

The requested use variance, if granted will not alter the essential character of the neighborhood; and

The alleged hardship has not been self-created.

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.

(2)

Area variances.

"Area variance" shall mean the authorization by the Board of Appeals for the use of land in a manner that is not, absent such authorization, allowed by the dimensional or physical requirements of the applicable zoning regulations.

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:

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. In determining whether the area variance is substantial, the Board of Appeals should take into account the existing conditions in the immediate neighborhood.

Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.

[5]

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.

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.

(3)

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.

Expiration of approval. Unless construction or use is commenced within one calendar year from the date of the granting of a variance, such variance shall become null and void without further hearing or action by the Board of Appeals.[2]

Editor's Note: Former Subsection C, Appeals, added 8-15-2016 by L.L. No. 7-2016, which immediately followed this subsection, was repealed 7-17-2017 by L.L. No. 5-2017.

Editor's Note: This local law also provided as follows:

"This local law, to the extent it is or may be inconsistent with provisions of the Village Law, is intended to supersede or modify the Village Law pursuant to the power given the Village under the State Constitution, the Municipal Home Rule Law and the Statute of Local Governments. Without limiting the generality of the foregoing, the provisions of this local law are intended to supersede or modify the following designated provisions of the Village Law to the extent, if any, that they are inconsistent with them: Village Law §§ 7-712; 7-720; 7-725; 7-726; 7-728; 7-730; 7-738."

§ 224-98 Procedure.

The powers and duties of the Board of Appeals shall be exercised in accordance with the following procedure:

A public hearing shall be held by said Board on every appeal and application made to it. A notice of such hearing and of the substance of the appeal or application shall be given by publication in the official newspaper(s) of the Village at least 10 days before the date of such hearing, except that at least 30 days' notice shall be given of any hearing scheduled to be held during the months of July and August. The applicant shall be required to notify any property owners within 200 feet of the subject property by a method of mail or a delivery service company providing proof of mailing or delivery or by personal service of such notice on the property owners, evidenced by their signature as acknowledgment of receipt of such notice on a form supplied or similar to one supplied by the Village Clerk. Said notice shall describe the substance of the appeal or application; advise the recipient of the date, time and place of the hearing; and shall advise the recipient that copies of the application or appeal and all papers filed with the Board by the applicant or appellant with respect thereto will be furnished to the recipient by the applicant or appellant upon request. On or before the date of the public hearing, the applicant or appellant shall file with the Board a verified statement evidencing compliance with the notice provisions of this subsection. Should the Board deem it advisable, it may require the notification of property owners within a distance of up to 500 feet of the subject property.

[Amended 9-18-2006 by L.L. No. 3-2006]: 4-7-2014 by L.L. No. 10-2014; 3-21-2016 by L.L. No. 2-2016]

At least 10 days before the date of any public hearing, the Village Clerk 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. If the land involved in an appeal or application lies within 500 feet of the boundary of any other municipality, the Village Clerk shall transmit to the Municipal Clerk of such other municipality a copy of the official notice of the public hearing thereon not later than the day after such notice appears in the official newspaper of the Village.

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.

Unless work is commenced and diligently prosecuted within one year of the date of the granting of a variance or special permit, such variance or special permit shall become null and void.

All appeals and applications made to the Board of Appeals shall be in writing, on forms prescribed by the Board, and shall be accompanied by a fee as set from time to time by the Board of Trustees.[1]

[Amended 11-3-1975 by L.L. No. 4-1975; 8-18-2003 by L.L. No. 20-2003]

Editor's Note: See Ch. 114, Fees and Charges.

Every appeal or application shall refer to the specific provision of the ordinance involved and shall exactly set forth the interpretation that it claimed, the use for which the special permit is sought or the details of the variance that is applied for and the grounds on which it is claimed that the variance should be granted, as the case may be.

Every decision of the Board of Appeals shall be recorded, in accordance with standard forms adopted by the Board, 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 the Board of Appeals shall be by resolution, and each such resolution shall be filed by case number, together with all documents pertaining thereto.

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 this chapter and in strict compliance with all limitations contained herein; 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 or appeal.

The Board may decide an application or appeal at the hearing of which public notice is given in accordance with Subsection A of this section, reserve decision thereon or continue the application or appeal to a subsequent occasion. In the event that an application or appeal is continued to a subsequent meeting, hearing or occasion more than once, notice of the second and all subsequent continued meetings, hearings or occasions must be given in the manner prescribed in Subsection A.

[Added 2-27-1989 by L.L. No. 3-1989]

The Board of Appeals is empowered to retain, at the applicant’s expense, any consultant or expert which, in the opinion of the Board of Appeals, is reasonably necessary in its review of any application or appeal. The fees for such consultation shall be paid in accordance with the provisions of Chapter 160, Professional Fees.

[Added 9-18-2006 by L.L. No. 3-2006; amended 5-3-2010 by L.L.No. 5-2010]

Irvington City Zoning Code

ARTICLE XIX

Board of Appeals

§ 224-96 Membership.

There shall be a Board of Appeals of five members pursuant to the provisions of the Village Law.

§ 224-97 Powers and duties.

Variances. The Board of Appeals shall have the power, upon denial of a building permit or determination of site capacity by the Planning Board, to grant variances as defined and detailed below:

[Amended 12-2-1991 by L.L. No. 8-1991[1]; 8-18-2003 by L.L. No. 18-2003; 4-6-2009 by L.L. No. 1-2009]

(1)

Use variances.

"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.

The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;

The alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood;

The requested use variance, if granted will not alter the essential character of the neighborhood; and

The alleged hardship has not been self-created.

Area variances.

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 proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.

[5]

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)

Editor's Note: Former Subsection C, Appeals, added 8-15-2016 by L.L. No. 7-2016, which immediately followed this subsection, was repealed 7-17-2017 by L.L. No. 5-2017.

Editor's Note: This local law also provided as follows:

§ 224-98 Procedure.

The powers and duties of the Board of Appeals shall be exercised in accordance with the following procedure:

[Amended 9-18-2006 by L.L. No. 3-2006]: 4-7-2014 by L.L. No. 10-2014; 3-21-2016 by L.L. No. 2-2016]

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.

Unless work is commenced and diligently prosecuted within one year of the date of the granting of a variance or special permit, such variance or special permit shall become null and void.

[Amended 11-3-1975 by L.L. No. 4-1975; 8-18-2003 by L.L. No. 20-2003]

Editor's Note: See Ch. 114, Fees and Charges.

[Added 2-27-1989 by L.L. No. 3-1989]

[Added 9-18-2006 by L.L. No. 3-2006; amended 5-3-2010 by L.L.No. 5-2010]

Irvington City Zoning Code

ARTICLE XIX

Board of Appeals

§ 224-96 Membership.

There shall be a Board of Appeals of five members pursuant to the provisions of the Village Law.

§ 224-97 Powers and duties.

Variances. The Board of Appeals shall have the power, upon denial of a building permit or determination of site capacity by the Planning Board, to grant variances as defined and detailed below:

[Amended 12-2-1991 by L.L. No. 8-1991[1]; 8-18-2003 by L.L. No. 18-2003; 4-6-2009 by L.L. No. 1-2009]

(1)

Use variances.

"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.

The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;

The alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood;

The requested use variance, if granted will not alter the essential character of the neighborhood; and

The alleged hardship has not been self-created.

Area variances.

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 proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.

[5]

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)

Editor's Note: Former Subsection C, Appeals, added 8-15-2016 by L.L. No. 7-2016, which immediately followed this subsection, was repealed 7-17-2017 by L.L. No. 5-2017.

Editor's Note: This local law also provided as follows:

§ 224-98 Procedure.

The powers and duties of the Board of Appeals shall be exercised in accordance with the following procedure:

[Amended 9-18-2006 by L.L. No. 3-2006]: 4-7-2014 by L.L. No. 10-2014; 3-21-2016 by L.L. No. 2-2016]

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.

Unless work is commenced and diligently prosecuted within one year of the date of the granting of a variance or special permit, such variance or special permit shall become null and void.

[Amended 11-3-1975 by L.L. No. 4-1975; 8-18-2003 by L.L. No. 20-2003]