Port Washington North
City Zoning Code
City Zoning Code
ARTICLE XIII
Board of Appeals
§ 176-144 Creation.
A Board of Appeals shall be appointed by the Village Board, pursuant to the Village Law of the State of New York.
§ 176-145 Membership; appointment; compensation; decisionmaking; duties.
Said Board of Appeals shall consist of five members, They shall be appointed for terms as provided in said Village Law. They shall receive such compensation as may be allowed by the Village Board. The concurring vote of a majority of the members shall be necessary for a decision. They shall make rules as to the manner of filing appeals and applications for variances from the terms of this chapter.
§ 176-146 Alternate members.
[Added 2-8-1993 by L.L. No. 3-1993[1]]
Said Board of Appeals may also consist of no more than three alternate members. Such alternate members shall be appointed by the Mayor subject to the approval of the Board of Trustees and shall receive such compensation as may be allowed by the Village Board.
A.
The terms of alternate members first appointed. The appointment of alternate members to the Board of Appeals shall be of terms so fixed that one member's term shall expire at the end of the Village official year in which such alternate member was initially appointed. The remaining alternate members' terms shall be so fixed that one member's term shall expire at the end of each official year thereafter. At the expiration of each original alternate member's appointment, the replacement member shall be appointed for a term of three years.
B.
An alternate member shall serve as a member of the Board of Appeals at the request of the Chairperson, or in his or her absence, the Acting Chairperson, when illness, absence, a conflict of interest or other factor intervenes which prevents a member from hearing, participating or voting on a matter which has come before the Board of Appeals.
C.
If a vacancy shall occur otherwise than by expiration of term, the Village Board shall appoint the new alternate member for the unexpired term.
D.
An alternate member when serving as a member at the request of the chairperson, or in his or her absence, the acting chairperson, shall have the same powers and authority as a member.
E.
No person who is a member of the Village Board shall be eligible for alternate membership on the Board of Appeals.
§ 176-147 Powers.
They may, in appropriate cases, after public notice and hearing, and subject to appropriate conditions and safeguards, and in harmony with the general purpose and intent of this chapter, in addition to the powers and duties set forth in the Village Law of the State of New York and such powers as are heretofore in this chapter given to them:
A.
Vary the application of the regulations herein established and establish appropriate requirements for irregular lots or lots less than the required area, in any district, existing at the effective date of this chapter.
B.
Vary the application of the regulations herein established and modify the requirements hereof in cases of exceptional topography, under such conditions as will safeguard the neighborhood.
C.
Grant temporary and conditional permits of limited duration for nonconforming uses and buildings in undeveloped sections.
D.
Determine and establish the true location of district boundaries in any disputed case.
E.
Where a district boundary line divides a lot in a single ownership at the effective date of this chapter, permit a use authorized on either portion of such lot to extend to the entire lot, but not more than 25 feet beyond the boundary line of the greater restricted zone.
F.
Permit the extension of a nonconforming use of building upon the lot occupied by such use of building at the effective date of this chapter.
G.
Permit any public utility in a restricted zone.
I.
Vary side and rear yard restrictions for buildings other than dwellings in Residence A-1 and Residence B and C Districts.
J.
Determine whether or not any trade, industry or purpose or use, otherwise permitted by this chapter would violate § 176-121 of Article XII of this chapter, and if so, to prohibit such trade industry or purpose or use.[1]
[1]
Editor's Note: Original Subsection (k), which immediately followed this subsection, was repealed 6-12-1967.
K.
Permit in an industrial district the use of premises or buildings for the storage of petroleum or other inflammable materials in excess of 1,000 gallons subject to appropriate conditions and safeguards after consideration of safety, fire hazard, traffic conditions and the effect on surrounding properties and where there are filed with the application therefor three sets of plans and a certificate from the Village Clerk stating that all ordinances have been complied with and that in all respects the plans comply with the requirements of this chapter and the Building Code. The Board of Appeals may approve the said plans unconditionally or on condition or reject them. It may require such change or changes in the said plans in relation to structures, buildings or construction thereof or safety requirements as deemed necessary to assure the above objectives.
L.
Granting either permanent or temporary and conditional permits of limited duration for the erection or maintenance of fences exceeding the maximum heights otherwise provided in this chapter.
[Amended 4-14-2003 by L.L. No. 1-2003]
M.
May permit gasoline filling stations and public garages where incidental to a use as a gasoline filling station in business and industrial districts only subject to the provisions contained in Article XII, § 176-137 through and including § 176-138, and after consideration of safety, fire hazard, noise, traffic conditions and the effect on surrounding properties where there are filed with the application therefore three sets of site plans showing location of pumps, tanks and buildings, a certificate from the Village Clerk that all ordinances have been complied with and that in all other respects the plans comply with the requirements of this chapter and the Building Code.[2] The Board may approve the said plans unconditionally or on condition, or may reject them. It may require such change or changes in the said plans in relation to location of pumps, tanks, buildings or construction as deemed necessary to assure the above objectives.
§ 176-148 Appeals.
The Board of Appeals shall have power to hear and determine appeals from and to review any order or decision made by the Superintendent of Buildings or Village Clerk.
§ 176-149 Consideration of applications for conditional uses.
In the consideration and determination of applications for conditional uses, the Board of Zoning and Appeals shall consider the following general standards as applied to the specific application:
A.
The purposes of zoning as set forth in the Village Law of the State of New York and uses permitted in the district in which the property is located.
B.
Whether the proposed use is of such character, size, location, design and site layout as to be appropriate to and in harmony with the surrounding properties.
C.
Whether the proposed use will provide a desirable service, facility or convenience to the area or otherwise contribute to the proper growth and development of the community and to its general welfare.
D.
Whether the proposed use will be hazardous, conflicting, or incongruous to the immediate area, stores, nearby residential dwellings, or the neighborhood by reason of excessive traffic, interference with pedestrian flow, assembly of persons or vehicles, proximity to travel routes or congregations of children or pedestrians.
[Amended 12-14-2005 by L.L. No. 14-2005]
E.
Whether the proposed use will be of such nature as to be objectionable to the immediate area, stores, nearby residential dwellings, or the neighborhood by reason of noise, lights, vibration or other factors of impact.
[Amended 12-14-2005 by L.L. No. 14-2005]
F.
Whether the proposed use will be a harmonious use in the district in which it is to be situated and not hinder or discourage the appropriate use and development of adjacent uses or impair the value thereof.
G.
Whether the proposed use will be objectionable because of litter, odors from putrescible waste, or attraction of vermin or insects.
[Amended 9-13-2004 by L.L. No. 8-2004]
H.
In addition to the foregoing, the location and size of a proposed use, the nature, time, hours, and intensity of the operations proposed, the site layout and its relation to access streets will not result in vehicular traffic which would be more hazardous than the normal traffic of the district, taking into account such factors as street intersection, traffic flow, traffic queuing on public streets, sight distances, and pedestrian traffic.[1]
[Added 9-13-2004 by L.L. No. 8-2004]
[1]
Editor's Note: Former Subsection I, regarding size limitations for food establishments, added 12-18-2006 by L.L. No. 3-2006, which immediately followed this subsection, was repealed 2-8-2022 by L.L. No. 2-2022.
§ 176-150 Issuance of permits.
If the Board of Zoning and Appeals shall determine that the conditional uses provided in this chapter or a proposed special use will conform to the general character of the neighborhood to which the proposed use will apply and that the public health, morals, safety and general welfare of such neighborhood will be secure by the granting of such use, subject to the safeguards imposed by the Board, then the Board of Zoning and Appeals shall authorize the issuance of a permit. Such permits may be granted for a temporary period or permanently, as determined by the Board, and, if granted for a temporary period, application for extension of same will be subject to a public hearing as required in the original application.
§ 176-151 Prehearing procedure.
Before an application for a conditional use may be heard by the Board of Zoning and Appeals a complete and accurate list of the names and addresses of the owners of all the lands within a radius of 200 feet of the property affected by such application as appears on the latest completed assessment roll of the County of Nassau shall be submitted simultaneously with the application. The applicant shall send, by registered mail, to each owner shown on said list, not less than 10, nor more than 20 days before the date set for a hearing upon this application, a notice addressed to such owners generally, signed by the applicant, identifying the property affected thereby, and setting forth the use requested, and the date, hour and place fixed by the Board of Zoning and Appeals for the hearing thereon. Before such case may be heard by the Board of Zoning and Appeals the applicant must file with the Clerk of the Board not later than five days prior to the hearing date an affidavit of the mailing of such notice as herein provided; said affidavit to be made on forms to be provided by the Board of Zoning and Appeals. This provision shall likewise apply to any application for the extension of a temporary conditional use.
§ 176-152 Denial of application.
If upon an application for extension of a conditional use the Board finds that the applicant has violated the conditions imposed in the granting of same, or if the Board finds that because of a change in the general character of the neighborhood, the public health, safety, morals and general welfare will be adversely affected by the extension of such conditional use, then the Board of Zoning and Appeals may deny an application for extension of such conditional use, anything in this chapter to the contrary notwithstanding.
§ 176-153 Fees.
§ 176-154 Rules of procedure of the Board of Appeals.
A.
General.
(1)
Meetings of the Board shall be held at the call of the Chairman and at such other times as such Board may determine.
(2)
Meetings shall be devoted to hearings of applications to the Board for permits as provided for in the ordinance and to hearings of appeals from orders, requirements, decisions and determinations of the Building Inspector.
(3)
All meetings of the Board shall be open to the public.
(4)
Said Board of Appeals shall consist of five members. A quorum of the Board shall consist of three members. The concurring vote of the majority of the entire membership shall be necessary for a decision.
(5)
The Chairman shall preside at all meetings and subject to these rules shall decide all points of order or procedure, unless otherwise directed by a majority of the Board in session at that time. The Chairman shall report to the Board on all pertinent official transactions that do not otherwise come to the attention of the Board. Should the Chairman be absent at any meeting, then the Board shall designate a Chairman to act at such meeting.
(6)
At a public hearing of a matter before the Board, the applicant or appellant as the case may be, shall first present his argument in support of the case and those of the opposition shall follow. To maintain orderly procedure, each shall proceed without interruption by the other.
(7)
Every person before the rostrum shall abide by the order and direction of the Chairman. Discourteous or disorderly conduct shall be regarded as breach of his privilege and shall be dealt with as the Chairman deems proper.
(8)
On all applications and appeals, the owner of the property affected shall appear before the Board in person or by his duly authorized agent or attorney. In case an owner fails to appear in person or by his duly authorized agent or attorney as aforesaid, the Board may dismiss his application or appeal.
B.
Cases before the Board.
(1)
Every application for a permit, except an application for the renewal of a temporary permit, and every appeal to the Board of Appeals shall be made on the forms provided in triplicate, the original of which shall be verified before a notary public, and shall include the data required by such forms and shall be accompanied by the necessary diagrams, consents, if any, and other supporting matter so as to supply all information necessary for a clear understanding by the Board.
(2)
Applications for renewals of temporary permits shall be made to the Board in writing and shall be signed by the owner or his duly authorized agent.
(3)
Every application and appeal to the Board shall be executed by the owner of the premises affected by such appeal or application or by his duly authorized agent on his behalf.
(4)
Every appeal to the Board must be taken within 60 days from the date of the order, requirement, decision or determination of the Building Inspector appealed from, and such appeal and every application for a permit must be filed with Clerk of the Board at least 10 days before the date set for the public hearing thereon.[1]
(5)
Any communication purporting to be an application or appeal, shall be regarded as a mere notice of intention to seek relief and shall be of no force or effect until it is made in the form which is required by this section. The Clerk, upon receipt of any such information, shall supply the writer thereof with the proper forms for presenting his application or appeal.
C.
The calendar. As soon as an application or appeal is filed with the Clerk, it shall be placed on the calendar and not less than five days before the hearing thereon a copy of the calendar shall be furnished by the Clerk to each member of the Board. Every applicant and appellant shall be notified by mail of the date his case will be set for public hearing, which notice shall be mailed to such applicant or appellant.
D.
Disposition of cases.
(1)
The final decision or determination by the Board of any application or appeal shall be in writing and shall be signed by the members of the Board present either affirming, reversing or modifying in whole or in part, the order, requirement decision or determination appealed from or dismissing the appeal for lack of jurisdiction or prosecution, or granting or denying in whole or in part the application for a permit. In denying or dismissing any application or appeal in whole or in part, the reason therefor shall be indicated. The Board, in reversing or modifying any order, requirement, decision or determination appealed from or in granting an application may impose such terms and conditions as in its discretion and judgment it deems necessary or proper.
(a)
The concurring vote of a majority of the Board present shall be necessary to any decision or determination. If there is less than such a majority vote in favor of an application or appeal, such action shall constitute a denial thereof.
(2)
Any applicant or appellant may withdraw his application or appeal to the Board at any time prior to action thereon with the consent of the Board.
(3)
No application or appeal dismissed or denied, in whole or in part, may be considered again except on a request by the applicant or appellant to restore the case to the calendar. No request to grant a rehearing shall be entertained by the Board unless substantial new evidence is submitted to it. If on motion of a member of the Board adopted by the affirmative vote of a majority of the Board present the request is granted, the case shall be put on the calendar for rehearing.
(a)
ln every case the request for rehearing shall be in writing executed in duplicate by the applicant or appellant, reciting the reasons for the request and shall be accompanied by the necessary data and diagrams and such request shall be filed with the Clerk. A date will then be set for the hearing of such request at least 10 days after the filing of the same with the Clerk when the request for restoration to the calendar shall be submitted to the Board. The applicant or appellant making such request shall be given at least five days' notice by mail of the hearing thereon by the Board.
(4)
No decision or determination of the Board granting any application or reversing or modifying an appeal shall remain in force and effect longer than 12 months from the date of such decision or determination unless the applicant or appellant shall have in the meantime actually and in good faith commenced substantial work on the erection or alteration of the building or structure or made use of the property affected pursuant to the relief granted.
E.
Inspection. In any case in which the Board shall deem it necessary, an inspection of the premises in question may be ordered by the Board. Such inspection shall be made by the Chairman and by one or more members designated by him and they shall report their findings to the Board.
F.
Amendment, modification or waiver of rules. These rules of procedure may be amended by the Board at any regular meeting, provided notice of such proposed amendment has been given by the Clerk in writing to each member of the Board not less than five days prior to such meeting; except that if a majority of the Board present at a meeting thereof duly called shall find that the application of any of the foregoing rules shall create a hardship to an applicant or to an appellant, the same may, in such case, upon the affirmative vote of a majority of the Board present, be modified or waived.