Mount Vernon City Zoning Code
ARTICLE IX
Zoning Board of Appeals
§ 267-46 Organization.
A.
Membership. The Zoning Board of Appeals, as heretofore established by the City Council pursuant to § 81 of the General City Law of the State of New York, is hereby maintained. The Zoning Board of Appeals shall consist of five members.
[Amended 12-12-2018, approved 12-19-2018]
B.
Meetings and records. The presence of four members of the Board shall be necessary for a quorum and the concurring vote of four members shall be necessary to effect any decision before the Board. The Board shall keep minutes of its proceedings, showing the vote of each member on every question or, if any member is absent or fails to vote, indicating that fact, and shall also keep records of its examinations and other official actions. Every rule, determination, regulation, amendment or appeal thereof, and every order, requirement and decision of the Board shall immediately be filed in the office of the Board.
§ 267-47 Powers and duties.
A.
General. The Board of Appeals shall have all of the powers and duties prescribed by General City Law and by this chapter, which powers and duties are summarized and more particularly specified in the following, provided that none of the following sections shall be deemed to any of the powers of the Board of Appeals that are conferred by the General City Law. In passing upon any matter before it, the Board shall take into specific consideration the goals as well as the specific standards of this chapter.
B.
Rules and regulations. The Board of Appeals may adopt such rules and regulations as it deems necessary and proper to the performance of its powers and duties hereunder and may amend or repeal the same.
C.
Nonconforming uses. As more fully set out in Chapter 267, Article IV of this chapter, the Board of Appeals is authorized to extend the permitted period for discontinuance of a nonconforming use in accordance with the requirements of Chapter 267, Article IV of this chapter; to review and approve, approve with modifications or disapprove a plan for reconstruction of a nonconforming building in accordance with requirements of Chapter 267, Article IV of this chapter; to permit the change of a nonconforming use to another nonconforming use in accordance with Chapter 267, Article IV of this chapter; and to review and approve, approve with modifications or disapprove a plan for the improvement of a nonconforming use in accordance with Chapter 267, Article IV of this chapter.
D.
Variances. On appeal from an order, requirement, decision or determination made by an administrative official or agency charged with the enforcement of this chapter, or on referral of an applicant to the Board by an approving agency acting pursuant to Article VI or VII of this chapter, the Board of Appeals is authorized to vary or modify the strict letter of this chapter, where its literal interpretation would cause unnecessary hardship, in such manner as to observe the spirit of the chapter, secure public safety and welfare and do substantial justice.
(1)
Use variances. Where, because of unnecessary hardship, an applicant desires to utilize land for a principal or accessory use not allowed in the district in which the land is located, and where such applicant presents appropriate proof of such unnecessary hardship with reference to the standards enumerated below, the Board may grant a variance of the applicable provisions of this chapter for the specific case, provided that as a condition to the grant of any such variance, the Board shall make each and every one of the following findings:
(a)
After considering all permitted uses, that the property in question cannot yield a reasonable return as demonstrated by competent financial evidence if used only for a purpose allowed in that district.
(b)
That the plight of the owner is due to unique circumstances affecting only the property which is the subject of the application and not to general conditions in a substantial portion of the neighborhood.
(c)
That the use to be authorized by the variance will not alter the essential character of the locality.
(d)
That the use to be authorized by the variance is in reasonable harmony with the intent of this chapter.
(e)
That the unnecessary hardship claimed as a ground for the variance has not been created by the owner.
(f)
That within the intent and purpose of this chapter, the variance, if granted, is the minimum variance necessary to afford relief. To this end, the Board may permit a lesser variance than that applied for.
(2)
Area variances. Where an applicant requests a variance of lot area or other dimensional requirements of this chapter, and where such applicant presents appropriate proof with reference to the standards enumerated below, the Board may grant a variance of the applicable provisions of this chapter for the specific case after weighing the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood and community if such variance is granted. In making this determination, the Board of Appeals shall consider the following:
(a)
How substantial the variation is in relation to the requirement.
(b)
Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.
(c)
Whether a substantial change will be produced in the character of the neighborhood or a substantial detriment to adjoining properties created.
(d)
Whether the difficulty can be alleviated by some method feasible for the applicant to pursue other than a variance.
(e)
Whether the difficulty alleged by the applicant was self-created, which consideration shall be relevant to the decision of Board of Appeals but shall not necessarily preclude the granting of the area variance.
(3)
Conditions and safeguards. The Board of Appeals may prescribe such conditions or restrictions applying to the granting of a variance as it deems necessary in each specific case in order to minimize the adverse effects of such variance upon other property in the neighborhood and to protect the public health, safety and welfare. In the case of a use variance, any permits for additional construction or any change in occupancy or use of the premises affected shall require reapplication to the Board of Appeals for modification of said use variance. Such conditions or restrictions shall be incorporated into the building permit and certificate of occupancy. Failure to comply with such conditions or restrictions shall constitute a violation of this chapter and may constitute the basis for denial or revocation of a building permit or certificate of occupancy and for all other applicable remedies.
E.
Interpretations. On appeal from an order, requirement, decision or determination made by an administrative official charged with the enforcement of this chapter, or on request from any official, agency or board of the City, or on the Board of Appeals own initiative, the Board of Appeals is authorized to decide any question involving the interpretation of any provision of this chapter. Interpretations shall be made in accordance with the intent of the particular provision being interpreted.
§ 267-48 Procedure.
A.
Appeal or application. All appeals of any denials and all applications to the Board shall be made by the owner or agent duly authorized, in writing, and shall be on forms prescribed by the Board. Each appeal or application shall fully set forth the circumstances of the case, shall refer to the specific provision of the chapter 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.
B.
Review by other agencies. Upon a receipt of a completed appeal or application, the Board of Appeals shall forward copies for review and report such to the Planning Department, Building Department, Law Department, Fire Department, Police Department, Department of Public Works and any other officials and agencies as it deems appropriate. The Planning Board may submit to the Board of Appeals an advisory opinion on any appeal or application at any time prior to the rendering of a decision. In addition, copies shall be forwarded with a notice of public hearing to the Westchester County Planning Board and to the clerks of abutting municipalities when required by law.
C.
Public hearing. The Board of Appeals shall conduct a public hearing on any appeal, application or request made pursuant to this chapter. The deliberations of the Board shall be conducted publicly and all votes on any matter before the Board must be taken at a public meeting.
(1)
Publication in the official newspaper. The applicant shall give public notice of such hearing and of the substance of the application shall be given by publication in the City's official newspaper at least 10 days before the date of such hearing. The applicant shall file with the Board a duly sworn affidavit attesting that such notification was completed.
(2)
Mailing to abutting and adjacent property owners. The applicant must notify all property owners in an affected area as determined by the Board, but, at a minimum, the applicant shall notify all property owners within 250 feet of any boundary of the property which is the subject of an application for all single-, two- and three-family properties and must notify any property owners within 500 feet of any boundary of the property which is the subject of an application for all multifamily, nonresidentially zoned and nonresidential uses. Such notice shall be given by registered mail or certified mail, return receipt requested, and regular mail to such property owners whose names appear as the owners of record in the office of the Assessor of their respective municipality. Such notice shall be mailed not more than 21 days prior to and not less than 10 days before the date of the public hearing. The applicant shall file with the Board a duly sworn affidavit attesting that such property owners were so notified.
(3)
Sign posting. A sign as prescribed in the Planning Board's Rules and Regulations shall be posted along all street frontages of the subject site at least 14 days prior to the hearing date. The applicant shall file with the Board a duly sworn affidavit attesting that such notification was completed.
(4)
Affidavit submission. All required affidavits shall be filed not less than nine days prior to the date of the public hearing.
D.
Action. Every decision of the Board of Appeals shall be by resolution, shall be recorded and shall fully set forth the facts of the case and the findings and conclusions on which it was based. Such resolution and findings shall be prepared by the Corporation Counsel. Such decision shall be made within 62 days of the date of the public hearing. The Board of Appeals shall notify the Planning Board, the Building Commissioner, the City Clerk's Office, the Assessor's Office, and the Law Department and each applicant of its decision in each case, in writing, upon the filing of its decision in the office of the Board.
§ 267-49 Expiration.
A variance granted under this chapter shall automatically expire if a building permit for construction in accordance with the plans for which such variance was granted has not been issued within one year of the date of the variance and if all construction is not completed within two years of the date of issuance of the building permit, or if both have not occurred within such other time limits as may be established by the Board of Appeals in connection with its decision. Such time limits shall be tolled by any judicial proceedings to review the Board's decision.
§ 267-50 Reapplication.
After an application has been decided, no matter presented to the Board of Appeals shall again be presented to or entertained by said Board within a period of three years from the date of such decision or determination or, if renewed by the courts, within the same period after the final adjudication thereof, except upon a showing by the applicant, to the satisfaction of the Board of Appeals, that there has been a material change in the circumstances under consideration in the original proceeding.