New Hempstead City Zoning Code
ARTICLE VIII
Zoning Board of Appeals
§ 290-85 Statutory authorization; membership.
[Amended 10-22-2001 by L.L. No. 2-2001]
The Mayor, with the approval of the Board of Trustees, shall appoint a Board of Appeals consisting of five members and two alternate members pursuant to the provisions of § 7-712 of the Village Law of the State of New York.
A.
The terms of each member of the Board of Appeals, including alternates thereof, shall be five official years. Notwithstanding the provisions of § 7-712 of the Village Law of the State of New York, the terms of Chairperson and Deputy Chairperson of the Zoning Board of Appeals of the Village of New Hempstead shall be one year.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
B.
Notwithstanding the provisions of Subdivision 11 of § 7-712 of the Village Law of the State of New York, and for the purpose of specifically overriding said provisions, the Chairperson of the Zoning Board of Appeals may designate an alternate member to substitute for a member of said Board when said member is unable to participate because of a conflict of interest on an application or matter before the Board or when said member is unable to attend a meeting of the Board for any reason whatsoever. When so designated, the alternate member shall possess all the powers and responsibilities of said member of the Board. Such designation shall be entered into the minutes of the Board of Appeals meeting at which the substitution is made.
C.
All provisions of § 7-712 of the Village Law of the State of New York relating to Zoning Board of Appeals member training, continuing education, attendance, conflicts of interest, compensation, eligibility, vacancy in office, removal and service on other boards shall also apply to alternate members.
§ 290-86 Meetings and records.
Meetings shall be held at the call of the Chairperson and at such other times as the Board may determine. The Board shall adopt rules and regulations governing its procedures. The presence of three members of the Board shall be necessary for a quorum. The concurring vote of three members shall be necessary to effect any variation or variance in this chapter, to reverse any order, requirement, decision or determination appealed from or to decide in favor of the applicant any matter 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 promptly be filed in the office of the Board.
§ 290-87 General powers and duties.
The Zoning Board of Appeals shall have all the powers and duties prescribed by the Village 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 limit any of the powers of the Zoning Board of Appeals that are conferred by the Village Law. In passing upon any matter before it, the Board shall take into specific consideration the goals of this chapter.
§ 290-88 Rules and regulations.
The Zoning Board of Appeals may adopt such rules and regulations as are necessary or proper to the performance of its powers and duties hereunder and may amend or repeal the same.
§ 290-89 Nonconforming uses.
The Zoning Board of Appeals is authorized to extend the permitted period for cessation of a nonconforming use in accordance with the requirements of § 290-12E of this chapter; to review and approve, approve with modifications or disapprove a plan for reconstruction of a nonconforming building in accordance with the requirements of § 290-14B of this chapter; to permit the change of a nonconforming use to another nonconforming use in accordance with § 290-15 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 § 290-16 of this chapter.
§ 290-90 Variances.
[Amended 9-24-1992 by L.L. No. 2-1992]
On appeal from an order, requirement, decision or determination made by an administrative official charged with the enforcement of this chapter or on referral of an applicant to the Board by an approving agency acting pursuant to this chapter, the Zoning Board of Appeals is authorized to vary or modify the strict letter of this chapter, where its literal interpretation would cause practical difficulties or unnecessary hardships, as defined in this section, in such a manner as to observe the spirit of the chapter, secure public safety and welfare and do substantial justice.
A.
Use variances.
(1)
Where, because of unnecessary hardship relating to the land, an applicant desires to utilize land for a use not allowed in the district in which the land is located, the Board may grant a variance in the application of the provisions of this chapter in the specific case. In order to prove such unnecessary hardship, the applicant shall be required to demonstrate the following to the Board of Appeals:
(a)
Under applicable zoning regulations the applicant cannot realize a reasonable return, provided that the lack of return is substantial as demonstrated by competent financial evidence.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
(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.
(d)
That the alleged hardship has not been self created.
(2)
The Board of Appeals, in granting the use variance, shall grant the minimum variance that it shall deem necessary and adequate to address the unnecessary hardship provided 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)
Where an applicant requests a variance of the lot area or other dimensional requirements of this chapter, the Board may grant a variance in the application of the provisions of this chapter in the specific case. 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 variance.
(b)
Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than a variance.
(c)
Whether the requested 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; this consideration shall be relevant to the decision of the Board of Appeals but shall not necessarily preclude the granting of the variance.
(2)
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.
§ 290-91 Other appeals.
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 Village, the Zoning 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.
§ 290-92 Appeals from decisions of Architectural Review Board.
The Zoning Board of Appeals is authorized to hear and decide appeals from decisions of the Architectural Review Board. The Board may grant a variance in the application of the decision of the Architectural Review Board, provided that it finds, in accordance with the standards of § 290-90B, that there are practical difficulties associated therewith.
§ 290-93 Conditions or restrictions on variances.
[Amended 9-24-1992 by L.L. No. 2-1992]
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, or the period of time such variance shall be in effect. 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. 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.
§ 290-94 Filing of appeals.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
An appeal shall be taken within 60 days of the order or decision appealed from by filing with the official or agency from whom the appeal is taken and with the Zoning Board of Appeals a notice of appeal, specifying the ground thereof. The official or agency from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from is taken. A referral to the Board for a variance or a request for an interpretation may be made at any time. All such appeals and 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 on which it is claimed that the same should be granted.
§ 290-95 Review of appeals by other agencies.
A.
Upon receipt of a completed appeal or application, the Zoning Board of Appeals shall forward copies for review and report to the Building Inspector, Code Inspector, Village Engineer and Planning Board and to other such officials and agencies of the Village as it deems appropriate. All such agencies shall have 30 days from the date of forwarding to submit a report. If approval of a site plan or issuance of a special permit is involved, the Zoning Board of Appeals shall forward sufficient copies for review and report to the applicable approving agency and shall not act on the matter until it has received the report of the approving agency or 30 days have passed since such forwarding.
B.
The Zoning Board of Appeals shall refer to the Rockland County Planning Board for its recommendation all matters within the provisions of Article 12-B, §§ 239-l and 239-m, of the General Municipal Law, which includes real property lying within 500 feet of the boundary of any city, village or town or from the boundary of any existing or proposed county or state parkway, thruway, expressway, road, 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 county- or state-owned land on which a public building or institution is situated and any special permit or variance affecting such use or property within a distance of 500 feet. The Rockland County Planning Board shall render its decision within 30 days of referral or within an extended period, if agreed upon. If the Rockland County Planning Board fails to report within such period of 30 days or such longer period as has been agreed upon by it and the Zoning Board of Appeals, the Zoning Board of Appeals may act without such report. If the Rockland County Planning Board disapproves the proposal or recommends modifications thereof, the Zoning Board of Appeals shall not act contrary to such disapproval or recommendation except by a vote of a majority plus one of all members thereof and after the adoption of a resolution fully setting forth the reasons for such contrary action. Within seven days after final action by the Zoning Board of Appeals, a report shall be filed of the final action it has taken with the County Planning Board which had made the recommendations, modifications or disapproval.
§ 290-96 Public hearing.
The Zoning Board of Appeals shall conduct a public hearing on any appeal, application or request made pursuant to this chapter. Such public hearing shall be held within 45 days of the date an appeal is taken or an application or request is made to the Board.
§ 290-97 Notice of hearing.
Notice of the hearing shall be published in the official newspaper at least 10 days prior to the date of such hearing. Notice shall also be sent by the applicant 10 days prior to the date of such hearing to all property owners within 500 feet of the perimeter of the property, in the same manner as is required for amendments, pursuant to § 290-135 of this chapter. The applicant shall cause signs to be posted on such property on such street frontage indicating the date and purpose of such hearing. The costs of all such notice shall be paid by the applicant.
§ 290-98 Decisions.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
The Board of Appeals shall decide upon an appeal within 62 days after the conduct of the hearing thereon. Every decision of the Zoning Board of Appeals shall be by resolution, shall be recorded and shall fully set forth the facts of the case, the findings and the conclusions on which the decision was based. The Board shall file its resolution in the office of the Village Clerk within five business days and shall mail a copy of such resolution to the applicant.
§ 290-99 Expiration of variances.
A variance granted under this chapter shall automatically expire if substantial construction in accordance with the plans for which such variance was granted has not been completed within one year, or such other time limit as may be chosen by the Zoning Board of Appeals in connection with its decision, from the date of granting such variance by the Board or, if judicial proceedings to review the Board's decision shall be instituted, from the date of entry of the final order in such proceedings, including all appeals.
§ 290-100 Fees.
Every application or appeal to the Board shall be subject to a fee as set forth in the Fee Schedule of the Village of New Hempstead.