Nassau City Zoning Code
ARTICLE XVI
Zoning Board of Appeals, and Variances, Appeals and Interpretations
§ 120-81 Board of appeals.
A.
Creation. A Board of Appeals is hereby established in accordance with § 7-712 of the Village Law.
B.
Composition. The Board of Appeals may consist of three or five members.
C.
Appointment. The Board of Trustees of the Village shall appoint the members of the Board of Appeals, each to be appointed for three years. No person who is a member of the Board of Trustees or a Town Justice or a member of the Village Planning Board shall be eligible for membership on such Board of Appeals.
D.
Removal. The Board of Trustees shall have the power to remove any member of the Board of Appeals for cause after public hearing. Any Board of Appeals member may be removed for noncompliance with minimum requirements related to meeting attendance and training.
E.
Vacancies. Vacancies shall be filled for the unexpired term of the member whose place has become vacant.
F.
Training. Board of Appeals members shall complete training and continuing education courses in accordance with any local requirements and with New York State General Municipal Law.
§ 120-82 General procedures.
A.
Meetings. All meetings of the Board of Appeals shall be held at the call of the Chairman and at such other times as such Board may determine. All meetings of such Board shall be open to the public.
B.
Oaths. The Chairman or, in his absence, the Acting Chairman may administer the oaths and compel the attendance of witnesses.
C.
Minutes. The Board of Appeals 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, and shall also keep records of its examinations and other official actions. Every rule and regulation, every amendment or repeal thereof and every order, requirement, decision or determination of the Board shall be filed in the office of the Board and with the Village Clerk within five business days and shall be a public record.
D.
Filing Requirements. Every rule, regulation, every amendment or repeal thereof, and every order, requirement, decision or determination of the Board of Appeals shall be filed in the office of the Village Clerk within five business days and shall be a public record.
E.
Assistance to the Board. The Board of Appeals shall have the authority to call on any department, agency, or employee of the Village for assistance as deemed necessary.
F.
Compliance with, State Environmental Quality Review Act. The Board of Appeals shall comply with the provisions of the State Environmental Quality Review Act under Article 8 of the ECL and its implementing regulations as codified in Title 6, Part 617 of the New York Codes, Rules and Regulations.
G.
Rehearing. A motion for the Board of Appeals to hold a rehearing to review any order, decision or determination of the Board 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 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.
H.
Voting requirements.
(1)
Decision of the Board. Except as otherwise provided, every motion or resolution of the Board of Appeals shall require for its adoption the affirmative vote of a majority of all the members of the Board of Appeals as fully constituted regardless of vacancies or absences. Where an action is the subject of a referral to the County Planning Agency, the voting provisions of § 239-m of the General Municipal Law shall apply.
(2)
Default Denial of Appeal. If an affirmative vote of a majority of all members of the Board is not attained on a motion or resolution to grant a variance or reverse any order, requirement, decision or determination of the Code Enforcement Officer within the time allowed by this section, the appeal is denied. The Board may amend the failed motion or resolution and vote on the amended motion or resolution within the time allowed without being subject to the rehearing process as set forth in Subsection G of this section.
§ 120-83 Powers.
The Board of Appeals shall have the following powers:
A.
The jurisdiction of the Board of Appeals shall be appellate only and shall be limited to hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation, or determination made by the Code Enforcement Officer charged with enforcement of this chapter. Such appeal may be taken by any person aggrieved, or by an officer, department, board or bureau of the Village. Permitted action by the Board of Appeals shall include:
(1)
Administrative review of orders, requirements, decisions, interpretations and 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 Code Enforcement Officer and to that end shall have all the powers of the Code Enforcement Officer from whose order, requirement, decision, interpretation or determination the appeal is taken.
(2)
Variance. To hear applications for area or use variances from the terms of this chapter will not be contrary to the law or to public interest where, owing to unique conditions, a literal enforcement of the provisions of this chapter will result in unnecessary hardship, while adhering to the spirit of this chapter and doing substantial justice. Financial disadvantage to the property owner is no proof of hardship within the purpose of zoning. Hardship must be unique and must arise from either a natural or man-made condition of the land upon which a use not in conformance with the literal terms of this chapter is proposed.
(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]
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.
[d]
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.
[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 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.
(3)
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 zoning chapter and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.
§ 120-84 Reference to County Planning Board.
In accordance with the policy and procedures provided for by Article 12-B, §§ 239-1 and 239-m, of the General Municipal Law, any proposed interpretation or variance affecting real property within 500 feet of the boundary of the Village of Nassau or from the boundary of any existing or proposed county or state park or other recreational area, or from the right-of-way of any existing or proposed county or state parkway, thruway, expressway, road or highway, or from the existing or proposed 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 existing or proposed boundary of any state-owned land on which a public building or institution is situated, shall be referred to the Rensselaer County Planning Board at least five days before any scheduled hearing. The referral to the County shall include a full statement of the proposed action. The term "proposed" shall be deemed to include only those recreational areas, parkways, thruways, expressways, roads or highways which are shown on a County Plan of Rensselaer County adopted pursuant to § 239-d, Subdivision 2, of the General Municipal Law or adopted as an Official Map of Rensselaer County pursuant to § 239-g of the General Municipal Law. If the Rensselaer County Planning Board fails to report within 30 days after receipt of a full statement of such referred material, the Board of Appeals may act without such report. If the Rensselaer County Planning Board disapproves the proposal or recommends modifications thereof, the Board of Appeals shall not act contrary to such disapproval or recommendation except by a vote of a majority plus one of all the members thereof and after the adoption of a resolution setting forth the reasons for the contrary action. The Board shall file a report of its final action taken with the County Planning Board within 30 days after its decision has been made.