Maybrook City Zoning Code
ARTICLE VIII
Board of Appeals
§ 210-42 Organization and general procedure.
A.
There shall be a Board of Appeals. Said Board shall consist of five members. The method of appointment, terms of office and tenure of its members shall be as prescribed by law.
B.
The Board shall have all the powers and duties prescribed by law and by this chapter.
C.
The Board shall appoint a Secretary and shall prescribe rules for the conduct of its affairs.
D.
All meetings of the Board of Appeals shall be open to the public. A quorum shall consist of three members.
E.
Every decision by the Board shall be by resolution and shall contain a full record of the findings of the Board in the particular case.
§ 210-43 Application and public hearing procedure.
A.
Applications for any action by the Board of Appeals shall be submitted in the form required by the Board and filed in the municipal office. Before a variance application can be approved, the site plan, if otherwise required by the this chapter, shall be submitted to the Planning Board for a preliminary review, report and recommendation.
[Amended 10-8-1993 by L.L. No. 4-1993]
B.
The Board shall fix a time and place for a public hearing thereon and shall provide for the giving of notice at least 10 days prior to the date thereof, as follows:
(1)
By publishing a notice in the official newspaper.
(2)
By requiring the applicant to give notice of the substance of every appeal for a variance together with notice of the hearing thereof by causing notices to be mailed at least 10 days before the date of said hearing to the owners of all property abutting that held by the applicant in the immediate area (whether or not involved in such appeal or application) and all other owners within 300 feet and within the Village limits, or such additional distance or such additional owners outside the Village as the Board of Appeals may deem advisable, from the exterior boundaries of the land involved in such appeal or application, as the names of said owners appear on the last completed assessment roll. Such notice shall be by certified mail, return receipt requested, and the applicant shall furnish proof of compliance with notification procedure; provided, however, that the Board may accept substantial compliance with these provisions in cases of difficulty in serving such owners.
(3)
If the land involved in an application is within 500 feet of the boundary of any other municipality, notice of the public hearing shall also be mailed to the Municipal Clerk of such other municipality.
(4)
If the land involved in an application is within 500 feet of the boundary of any other municipality; of the boundary of any county or state park or other recreation area; from the right-of-way of any county or state parkway, thruway, expressway or other controlled access highway; from the right-of-way of any stream or drainage channel owned by the county or for which the county has established channel lines; or from the boundary of any county- or state-owned land on which a public building or institution is situated, then notice of the public hearing and a description of the applicant's proposal shall be mailed to the Orange County Planning Department.
C.
No action shall be taken on applications referred to the Orange County Planning Department until the Department's recommendation has been received or 30 days have elapsed after the Department received the full statement on the applicant's proposal.
[Amended 10-8-1993 by L.L. No. 4-1993]
D.
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 applicant's name. Said files shall be available for public inspection.
E.
The Board shall keep minutes of its proceedings showing the vote of each member upon every question, or if absent or failing to vote, indicating such fact. The Board shall keep records of its examinations and official actions, all of which shall be filed in the Clerk's office and shall be a public record.
F.
Building permits authorized by the Board of Appeal's approval of any variance(s) shall be obtained within 24 months of the filing of the approval of the variance(s) with the office of the Village Clerk, or such variance(s) shall thereafter expire, unless the two-year period of limitation is extended by the Board of Appeals where good cause is shown and the circumstances relied upon by the Board of Appeals to justify the original approval of such variance(s) have not changed materially in the interim in a manner that would create negative impacts in the neighborhood if the extension were approved.
[Amended 7-11-2005 by L.L. No. 14-0205]
G.
The fees for applications to the Board of Appeals shall be established from time to time by resolution of the Board of Trustees.[1]
[1]
Editor's Note: Original Section 130-20-80, regarding fees for variance applications, added 6-23-1986 by L.L. No. 6-1986, which immediately followed this section, was repealed 10-8-1993 by L.L. No. 4-1993.
§ 210-44 Appeals on interpretation of this chapter and Zoning Map.
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 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 appellant 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.[1]
[1]
Editor's Note: The Zoning Map is on file in the Village offices. See also the Table of Zoning Map Amendments at the end of this chapter.
C.
Any matter which 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.
§ 210-45 Variances. [1]
A.
The Board of Appeals shall have the power in passing on appeals where, as a result of exceptional physical conditions connected with a particular site, there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this chapter that would deprive the owner of the reasonable use of the land or building involved, to vary or modify the application of the regulations or provisions of this chapter.
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.
(2)
Every variance granted by the Board of Appeals may be made subject to conditions and safeguards as the Board shall deem to be applicable to the particular case. Violations of such conditions or safeguards which are a part of this Board's decision shall be deemed a violation of this chapter punishable under the provisions of Article XI.
(3)
Any variance granted by the Board of Appeals pursuant to the provisions of this section shall be construed to be nonconforming use.
C.
Permitted action by Board of Appeals.
[Amended 7-11-2005 by L.L. No. 14-2005]
(1)
Orders, requirements, decisions, interpretations, determinations. 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 have been made in the matter by the administrative official charged with the enforcement of such local law and, to that end, shall have all the power of the administrative officer from whose order, requirement, decision, interpretation or determination the appeal is taken.
(2)
Use variances.
(a)
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.
(b)
No such 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, (1) the applicant cannot realize a reasonable return, provided that lack of return is substantial, as demonstrated by competent financial evidence; (2) 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; (3) that the requested use variance, if granted, will not alter the essential character of the neighborhood; and (4) that the alleged hardship has not been self-created.
(c)
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.
(3)
Area variances.
(a)
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.
(b)
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.
(c)
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.
(4)
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 the zoning chapter, and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.
D.
Specific types of variances. In the instances of the following types of variances, the Board of Appeals is hereby specifically empowered to grant the variance pursuant to the guiding principles and general standards stated in Subsections B and C and the following provisions:
(1)
With respect to lots lying across district boundary lines, to grant a permit, in appropriate cases, where the lot of the appellant, as such lot existed on the effective date of this chapter, lies across the boundary of two districts, for the extension into the more restrictive district of a lawful conforming use permitted in the less restrictive district, but for a distance not exceeding 50 feet measured at right angles to such district boundary line.
(2)
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 this chapter, provided that:
[1]
Such enlargement or extension was arranged 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; and further
[3]
All other requirements of this chapter are complied with.
[Amended 10-8-1993 by L.L. No. 4-1993]
(b)
To grant a permit for the reconstruction, structural alteration, restoration or repair of a building or structure, used for a nonconforming use, to the extent to which it exceeds in aggregate 50% of the replacement cost of such building or structure, exclusive of foundations.
(c)
To grant a certificate of occupancy for a change in a nonconforming use, provided that:
E.
With respect to accessory parking and truck loading spaces:
(1)
To waive the requirements of §§ 210-22, 210-23 and 210-24 for off-street parking and truck loading spaces, in whole or in part, in a case where the municipality owns or operates a public parking and/or truck loading area within 500 feet of the lot and where the Board of Appeals determines that there is no need for additional facilities.
(2)
(3)
To permit a reduction in the number of off-street parking spaces or truck loading spaces originally required and installed for a particular use pursuant to §§ 210-22, 210-23 and 210-24, in cases where the Board of Appeals determines that, by reason of diminution in number of dwelling units or residents or in floor area, seating capacity or area, number of employees or change in other factors determining the demand for such spaces, the proposed reduction in available spaces will be consistent with the requirements of §§ 210-22, 210-23 and 210-24, and further provided that the area so withdrawn from these uses remain in reserve for potential future increases in need.
F.
Temporary building permits and emergency shelter.
[Amended 8-12-1985 by L.L. No. 7-1985]
(1)
With respect to temporary building permits:
(a)
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 house located on or near a tract of land where individual properties are being offered for sale, provided that:
[1]
Such temporary permit shall be issued only 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 further that
[2]
Such permit shall be subject to such reasonable conditions as the Board of Appeals shall determine to be necessary to protect the public health, safety, morals or general welfare.
(b)
Such permit may be renewed annually, at the direction of the Board of Appeals, for not more than two additional years.
(2)
Emergency shelter. Notwithstanding Subsection F(1), the Building Inspector may, with the express approval of the Mayor, issue a temporary building permit for the provision of shelter for persons rendered homeless by fire, flood or other catastrophe. Such temporary building permit shall be conditioned upon application to the Zoning Board of Appeals pursuant to Subsection F(1) and such other conditions which are deemed advisable to protect the public health, safety and welfare. A temporary permit issued pursuant to this subsection shall be superseded by the determination of Zoning Board of Appeals rendered pursuant to Subsection F(1).
[1]
Editor's Note: Original Section 130-40-5, regarding special use permit fees, added 6-23-1986 by L.L. No. 6-1986 as part of these provisions, was repealed 10-8-1993 by L.L. No. 4-1993.