North Salem City Zoning Code
ARTICLE XVII
Board of Appeals
§ 250-107 Creation, appointment and organization.
The existing Board of Appeals of five members is hereby continued. Their successors shall be appointed in accordance with the provisions of the Town Law. The Town Board shall designate the Chairman from the membership of the Board of Appeals.
§ 250-108 Powers and duties.
The Board of Appeals shall have all the powers and duties prescribed by statute and by this chapter, which are more particularly specified as follows, provided that none of the following provisions shall be deemed to limit any power of the Board that is conferred by law:
A.
Appeals. The Board of Appeals shall hear and decide appeals from and review any order, requirement, decision, interpretation or determination of the Building Inspector, when acting in his capacity as Zoning Enforcement Officer, or such other official charged with enforcement of this chapter. The Board of Appeals shall not hear any appeal from nor review any order, determination, requirement, decision or revocation of the Building Inspector where such order, determination, requirement, decision or revocation has been directed by the Town Board. In addition, the Board of Appeals may not waive the requirements for site development plan application as required in any part of this chapter. The Board of Appeals may call upon any department, agency or employee of the Town for such assistance as shall be deemed necessary by the Board of Appeals, provided that the Town Board authorizes such assistance.
[Amended 10-13-1992 by L.L. No. 4-1992]
B.
Interpretation. On an appeal from an order, requirement, decision, interpretation or determination made by an administrative official or by the Building Inspector, the Board of Appeals may decide any of the following questions:
[Amended 10-13-1992 by L.L. No. 4-1992]
(1)
Determination of the meaning of any portion of the text of this chapter or of any condition or requirement specified or made under the provisions of this chapter.
C.
Variances. On appeal from an order, requirement, decision or determination made by the Building Inspector, acting in his capacity as Zoning Enforcement Officer, the Board of Appeals is authorized, after public notice and hearing, to grant area variances or use variances as permitted by this section or the Town Law or as otherwise allowed by law in such manner and subject to appropriate conditions as to observe the spirit of this chapter, secure public safety and welfare and do substantial justice. Both area variances and use variances, once granted, shall be construed to run with the particular site or lot and not with the applicant, but in any case shall expire within 36 months of the date of approval unless a building permit, certificate of occupancy or certificate of use has been issued for the variance. Such period may be extended on separate application to the Board of Appeals.
[Amended 3-28-1989; 10-13-1992 by L.L. No. 4-1992]
(1)
Area variances. "Area variance" shall mean the authorization by the Board of Appeals for the use of land in a manner which is not allowed by the dimensional or topographical requirements of the applicable zoning regulations. Where an applicant requests a variance of the bulk requirements of this chapter, the Board may grant an area variance in the application of the provisions of this chapter in the specific case, provided that, as a condition to the grant of any such variance, the Board shall take into consideration the benefit to the applicant if the variance is granted as weighed against any detriment to the health, safety and welfare of the neighborhood or the community if such variance is granted. Specific findings shall be made considering each of the following factors:
(a)
That the variation is or is not substantial in relation to the requirement.
(b)
That the effect of any increased population density which may thus be produced upon available services and facilities is or is not significant.
(c)
That a substantial change in the character of the neighborhood or a substantial detriment to adjoining properties will or will not be created.
(d)
That the difficulty can or cannot be alleviated by some method feasible for the applicant to pursue other than a variance.
(e)
That the variance would or would not cause adverse aesthetic, environmental or ecological impacts on the property or on surrounding areas.
(f)
That, in view of the manner in which the difficulty arose and considering all of the above factors, the interests of justice will or will not be served by allowing the variance.
(2)
Use variances.
(a)
"Use variance" shall mean the authorization by the Board of Appeals for the use of land in a manner or for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations. Where because of unnecessary hardship relating to the 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, provided that, as a condition to the grant of any such variance, the Board shall make specific findings as to each and every one of the following factors:
[1]
After considering all permitted uses, that the property in question is or is not deprived of all economic use or benefit from the property.
[2]
That the plight of the owner is or is not due to unique circumstances affecting the property which is the subject of the application and not to general conditions in the neighborhood.
[3]
That the use to be authorized by the variance will or will not alter the essential character of the locality.
[4]
That the use to be authorized by the variance is or is not in reasonable harmony with the intent of this chapter.
[5]
That the unnecessary hardship claimed as a ground for the variance has or has not been created by the owner or by a predecessor in title; mere purchase of the land subject to the restrictions sought to be varied shall not by itself constitute a self-created hardship.
[6]
That within the intent and purpose of this chapter, the variance, if granted, is or is not the minimum variance necessary to afford relief. To this end, the Board may permit a lesser variance than that applied for.
(b)
In order to grant a use variance, all of the findings on the above-referenced factors must be in favor of the applicant or the affected property.
D.
Extensions across district boundaries. In appropriate cases where a lot lies within two districts, the Board of Appeals may permit the extension of existing or proposed permitted accessory off-street parking space across a district boundary, under such conditions as will safeguard the character of the district into which such use is extended. However, no such extension shall exceed 75 feet, measured at right angles to such district boundary. The power under this subsection shall not permit the moving of the zoning district line but only the extension of the accessory off-street parking space.
E.
Special permits.
(1)
In addition to such powers as may be conferred on it by statute, the Board of Appeals shall have the powers, on application and after public notice and hearing, to issue special permits for any of the uses so specified in Column D of the Use Table[2] in accordance with the standards and procedures as set forth in Articles XII and XIII of this chapter. In issuing such special permit, the Board shall take into consideration the public health, safety and welfare, the comfort and convenience of the public in general and of the residents of the immediate neighborhood in particular, as well as the conditions and standards set forth in Article XIII, and may prescribe such appropriate conditions and safeguards as may be required in order that the result of its action shall, to the maximum extent possible, further the expressed intent of this chapter. The Board of Appeals shall have the power to grant variances of any provision of this chapter in accordance with Subsection C of this section on any application for a special permit.
[Amended 3-28-1989; 9-23-2014 by L.L. No. 5-2014]
[2]
Editor's Note: The Tables of General Use Requirements are included as attachments to this chapter.
(2)
For all principal uses, an applicant for a special permit shall, simultaneously with the filing of an application with the Board of Appeals, file an application for site development plan approval with the Planning Board, together with appropriate plans, drawings and fee for site development plan review indicating the extent of any variance required, if any. Thereafter, and before the Board of Appeals shall give any consideration to or review the application for such permit, the Planning Board shall review the application for the purpose of preliminary site development plan review and in light of the general considerations herein and specific standards herein for special permits. The Planning Board shall transmit its recommendations to the Board of Appeals within 30 days of receipt of the application for site development plan.
(3)
[3]The Board of Appeals may require that special permits be periodically renewed. Such renewal shall be granted or denied following due public notice and hearing.
[3]
Editor's Note: Former Subsection E(3), regarding the conducting of a hearing, and Subsection E(4), regarding the deeming of a conforming use, were repealed 9-23-2014 by L.L. No. 5-2014. Said local law also redesignated former Subsection E(5) as Subsection E(3), and repealed former Subsection E(6), regarding expiration of special permits.
F.
The Board of Appeals, after a public hearing, shall have the power to direct the Building Inspector to issue a building permit, certificate of occupancy or certificate of use, as the case may be, subject to the other applicable laws, codes, rules and regulations.
§ 250-109 Procedure for appeals.
[Amended 10-13-1992 by L.L. No. 4-1992]
A.
All appeals and applications to the Board of, Appeals shall be taken within 60 days after the filing of any order, requirement, decision, interpretation or determination of the administrative officer charged with the enforcement of this chapter by filing with such administrative official and with the Board of Appeals a notice of appeal specifying the grounds thereof and the relief sought. The administrative official from whom the appeal is taken shall forthwith transmit to the Board of Appeals all the papers constituting the record upon which the action appealed from was taken. The cost of sending or publishing any notices relating to such appeal shall be borne by the appealing party and shall be paid to the Board prior to the hearing of such appeal. Each appeal or application shall fully set forth the circumstances of the case; shall refer to the specific provision of this 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 ground for which it is claimed that the same should be granted.
B.
Notice of hearing.
(1)
Notice of any hearing before the Board of Appeals shall be published in a newspaper circulating within the Town of North Salem, at least five days prior to the date of said hearing, and any mailing of notices that may be required by the Board of Appeals shall be at least 10 days before such hearing. The preparation and cost of publication and mailing of any notice required for such hearing shall be at the cost and expense of the applicant.
(2)
Notice of hearing shall be sent by certified mail, return receipt requested, to all property owners within a distance of 200 feet of the boundaries of the property, unless the rules and regulations of the Board of Appeals permit a lesser distance; except in the case of an application relating to a single-family dwelling within a cooperative residential community (specifically Vails Grove, Pietsch Gardens and Bloomerside Cooperatives) said distance shall be 150 feet measured from the exterior walls of the subject property house and shall also include notification to the corresponding Cooperative Board. In addition, the Board shall give any other notice required by law.
[Amended 4-12-2022 by L.L. No. 3-2022]
C.
Referral to other agencies. At least five days before the date of the hearing required by law on any application or appeal to the Board of Appeals, the Secretary of said Board shall transmit to the County of Westchester Department of Planning, as required by § 239-m of the General Municipal Law, copies of said application or appeal, together with copies of the notice of the aforesaid hearing.
D.
Compliance with State Environmental Quality Review Act (SEQRA). The Board of Appeals shall comply with the provisions of the State Environmental Quality Review Act under Article 8 of the Environmental Conservation Law and its implementing regulations as codified in Title 6, Part 617, of the New York Codes, Rules and Regulations.
E.
Action by Board of Appeals. Every decision of the Board of Appeals shall be by resolution; shall be recorded in accordance with standard forms adopted by the Board; and shall fully set forth the circumstances of the case and the findings on which the decision was based. The Board shall decide on matters referred to it within 62 days after the final hearing and shall, within five days thereafter, file a copy of each such resolution in the office of the Town Clerk, and a copy thereof shall be mailed to the applicant and the affected property owner, if different than the applicant, with additional copies transmitted pursuant to the rules and regulations of the Board of Appeals.
F.
Article 78 proceeding; how taken on Board of Appeals actions. Any person or persons jointly or severally aggrieved by any decision of the Board of Appeals, or any officer, department, board or bureau of the Town, may apply to the Supreme Court for relief in the manner provided by law.