Southampton City Zoning Code
ARTICLE XVIII
Board of Appeals
§ 330-163 Organization and general procedure.
[Amended 2-12-2002 by L.L. No. 1-2002; 1-14-2003 by L.L. No. 2-2003; 5-27-2003 by L.L. No. 45-2003[1]; 3-22-2005 by L.L. No. 10-2005]
A.
The Board of Appeals, consisting of seven members, was duly constituted and organized by the Building Zone Ordinance of the Town of Southampton adopted on October 1, 1957, and the same shall continue in existence, and the members thereof and their terms of office shall continue as heretofore established. The method of appointment, terms of office and tenure of its members shall be as prescribed by law herein.
[Amended 11-24-2009 by L.L. No. 56-2009]
B.
The Board shall have all the powers and duties prescribed by law and by this chapter.
C.
The Board shall appoint a Secretary and shall prescribe rules for the conduct of its affairs.
D.
All meetings of the Board of Appeals shall be open to the public. A quorum shall consist of four members.
E.
Every decision by the Board shall be by resolution and shall contain a full record of the findings of the Board in the particular case.
F.
Any person appointed as a member of the Zoning Board shall serve for a term of seven years, at such compensation as may from time to time be fixed by the Town Board. After the expiration of the terms of the members serving on the Zoning Board, any member reappointed, or any successor in office, shall serve for a term of seven years. If a vacancy shall occur other than by expiration of term, it shall be filled by the Town Board by appointment for the unexpired term. However, no such appointment shall exceed seven years. Any new appointment, reappointment, or appointment to a vacancy shall not exceed seven years.
In order to re-establish the staggering of appointments and expiration of terms, Zoning Board of Appeals members shall be appointed as follows:
(1)
For the positions expiring in December of 2022, in January of 2023:
(a)
One individual shall be appointed for a term of one year, with said term expiring at the end of said calendar year, that is, December of 2023;
(b)
One individual shall be appointed for a term of two years, with said term expiring at the end of the second calendar year, that is, December of 2024;
(c)
Thereafter, each member, or replacement member, shall be appointed for a term of seven years.
(2)
For the position expiring in December of 2023, in January of 2024 an individual shall be appointed for a term of two years, with said term expiring at the end of the second calendar year, that is, December of 2025. Thereafter, the member, or replacement member, shall be appointed for a term of seven years.
(3)
For the position expiring in December of 2024, in January of 2025 an individual shall be appointed for a term of two years, with said term expiring at the end of the second calendar year, that is, December of 2026. Thereafter, the member, or replacement member, shall be appointed for a term of seven years.
(4)
For the remaining positions expiring in December of 2025, in January of 2026:
(a)
One individual shall be appointed for a term of two years, with said term expiring at the end of the second calendar year, that is, December of 2027;
(b)
One individual shall be appointed for a term of three years, with said term expiring at the end of the third calendar year, that is, December of 2028;
(c)
One individual shall be appointed for a term of four years, with said term expiring at the end of the fourth calendar year, that is, December of 2029; and
(d)
Thereafter, each member, or replacement member, shall be appointed for a term of seven years.
G.
The Town Board shall designate the Chairperson and Vice Chairperson of the Zoning Board of Appeals. In the absence of the Chairperson, the Vice Chairperson shall serve as Chairperson. The designation of Chairperson and Vice Chairperson may be withdrawn at the pleasure of the Town Board. The affected member will continue to serve as members unless removed by cause pursuant to Town Law.
§ 330-164 Application procedure.
[Amended 5-13-1986 by L.L. No. 7-1986; 12-23-1986 by L.L. No. 21-1986; 4-13-1993 by L.L. No. 10-1993; 10-12-1993 by L.L. No. 34-1993; 2-25-2003 by L.L. No. 15-2003]
A.
Applications for any action by the Board of Appeals shall be submitted in the form required by the Board and filed in its office. A digital copy of said application shall be submitted in a format determined, and changed as needed, by the Town Clerk.
[Amended 3-10-2020 by L.L. No. 2-2020]
B.
Notice of the public hearing or, in the case of a minor variance, a notice of complete application and a description of the applicant's proposal shall be transmitted to the Suffolk County Planning Commission in any case where the land involved in an application is within 500 feet of:
(1)
The boundary of any other municipality.
(2)
Any state or county park or other recreation area.
(3)
The right-of-way of any federal, state or county parkway, thruway, expressway or other controlled- or full-access highway.
(4)
The right-of-way of any stream or drainage channel owned by the county or for which the county has established channel lines.
(5)
The boundary of any state- or county-owned land on which a public building or institution is situated.
C.
No action shall be taken on applications referred to the Suffolk County Planning Commission until the Department's recommendation has been received or 30 days have elapsed after the Department has received the full statement on the applicant's proposal.
D.
A record shall be established of all variances granted pursuant to action of the Board of Appeals under this chapter. Each case shall be identified by a sequential numbering system and alphabetically by the applicant's name. Said files shall be available for public inspection.
E.
The Board 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. The Board shall keep records of its examinations and official actions, all of which shall be filed in the Town Clerk's office and shall be a public record.
F.
Variances granted by the Board of Appeals shall run with the land and be transferable unless the decision contains an expiration date imposed as a condition, which is reasonably related to the relief granted by the Board of Appeals. Any such expiration date may be extended by the Board of Appeals without a further public hearing where good cause is shown.
G.
The fees for applications to the Board of Appeals shall be established, and changed as needed, by resolution of the Southampton Town Board. A copy of the fee schedule is on file in the Clerk’s office and the Department of Land Management. Zoning Board of Appeals application fees are nonrefundable.
[Amended 5-12-2009 by L.L. No. 17-2009]
H.
The Board shall fix a time and place for a public hearing thereon and shall provide for the giving of notice at least 10 days prior to the date thereof as follows:
(1)
By publishing a notice in the official newspaper.
(2)
By requiring the applicant to erect a white-and-black-lettering sign or signs measuring not less than two feet long and one foot wide, which shall be prominently displayed on the premises facing each public street on which the property abuts, giving notice that an application for an appeal is pending and the date, time and place where the public hearing will be held. The sign shall not be set back more than 10 feet from the street line and shall not be less than two nor more than six feet above the grade at the street line. The sign shall be made of durable material and shall be furnished by the Board of Appeals. It shall be displayed for a period of not less than 10 days immediately preceding the public hearing date. No additional posting shall be required for any adjournment date. The applicant shall file an affidavit that he has complied with the provisions of this section.
(3)
If the land involved in an application is within 500 feet of the boundary of any other municipality, notice of the public hearing shall also be mailed to the Municipal Clerk of such other municipality.
(4)
By requiring the applicant to mail written notice of the date, time and place of the hearing, together with a copy of the application and survey submitted to the Board, by certified mail, return receipt requested, to every property owner, as shown on the current Town of Southampton assessment rolls, of parcels abutting and directly opposite (by extension of lot lines through a street or right-of-way) of the property which is the subject of the application, proof of which shall be submitted to the Board of Appeals on or before the commencement of the public hearing in the form of an affidavit with postal receipts annexed thereto confirming mailing of said notices at least 10 days prior to the hearing date.
(5)
If the relief sought is from Article XXX of Chapter 330 of the Code, the applicant, in addition to the other requirements of this section, must mail written notice of the date, time and place of the hearing, together with a copy of the application and survey submitted to the Board, by certified mail, return receipt requested, to the public safety agencies providing the primary fire protection and emergency medical services to the location, proof of which shall be submitted to the Board of Appeals on or before the commencement of the public hearing in the form of an affidavit with postal receipts annexed thereto confirming mailing of said notices at least 45 days prior to the hearing date. The public safety agencies providing the primary fire protection and emergency medical services to the location that is noticed pursuant to this section shall be an interested party to the application and shall have standing to challenge any relief granted.
[Added 7-28-2009 by L.L. No. 32-2009]
I.
The Board of Appeals may, upon request by the applicant or upon its own motion, waive the requirement for a public hearing upon an application for a minor variance and, if the hearing is waived, proceed as follows:
(1)
The Board shall, within 30 days of receipt of a complete application for a minor variance, fix a time and place for the receipt of written comments on the application, designated as the "comment period." The Board shall provide for the giving of notice at least 10 days prior to the end of the comment period as follows:
(a)
By publishing a notice of complete application in the official newspaper stating the final date and place for the submission of written comments on the application.
(b)
By requiring the applicant to erect a white and black lettering sign or signs measuring not less than two feet long and one foot wide, which shall be prominently displayed on the premises facing each public street on which the property abuts, giving notice that an application for a minor variance is pending, the final date and the place for the submission of public comments. The sign shall not be set back more than 10 feet from the street line and shall not be less than two nor more than six feet above the grade at the street line. The sign shall be made of durable material and shall be furnished by the Board of Appeals. It shall be displayed for a period of not less than 10 days immediately preceding the last day for the submission of public comments. The applicant shall file an affidavit that he has complied with the provisions of this section.
(c)
If the land involved in an application is within 500 feet of the boundary of any other municipality, a notice of the application shall also be mailed to the Municipal Clerk of such other municipality.
(d)
By requiring the applicant to mail a notice of application which shall indicate the final date and the place for the submission of comments with a copy of the application and survey submitted to the Board, by certified mail, return receipt requested, to every property owner, as shown on the current Town of Southampton assessment rolls, of parcels abutting and directly opposite (by extension of lot lines through a street or right-of-way) of the property which is the subject of the application, proof of which shall be submitted to the Board of Appeals on or before the expiration of the public comment period in the form of an affidavit with postal receipts annexed thereto confirming mailing of said notices at least 10 days prior to the expiration of the public comment period.
(2)
The Board of Appeals shall review all written comments received in connection with any notice of application at its next regularly scheduled meeting following the expiration of the comment period. If the Board determines, based upon its review of the application and the comments received in connection therewith, that a substantive issue has been raised or that it is not prepared to find that the relief requested should be granted in its entirety based upon the written record before it, the Board shall schedule the matter for a public hearing.
(4)
If the Board decides to waive the requirement for a public hearing, the Board shall proceed forthwith to render a determination and to notify the applicant of its decision.
§ 330-165 Appeals on interpretation of Zoning Law and Map.
[Amended 2-9-1993 by L.L. No. 4-1993; 8-22-2006 by L.L. No. 47-2006]
The Board of Appeals shall, upon appeal, hear and decide:
A.
Any matter where the applicant alleges that the Building Inspector, or Public Safety Administrator, where applicable, was in error in refusing to issue a permit, building permit or certificate of occupancy or a license for a place of public assembly for the specific use requested by the applicant therefor as a result of misinterpreting the meaning, intent or application of any section or part of this chapter.
B.
Any matter where the appellant alleges that the Building Inspector was in error in his determination as to the exact location of a district boundary line on the Zoning Map that forms a part of this chapter.
C.
Any matter which the Building Inspector appeals on grounds of doubt as to the meaning or intent of any provision of this chapter or as to the location of a district boundary line on the Zoning Map.
§ 330-166 Variances generally.
A.
The Board of Appeals shall have the power by way of original jurisdiction and in passing on appeals where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this chapter to vary or modify the application of the regulations or provisions of this chapter.
B.
Guiding principles.
(1)
Every decision by the Board of Appeals granting a variance shall clearly set forth the nature and extent of such variance.
(2)
Every variance granted by the Board of Appeals may be made subject to such conditions and safeguards as the Board shall deem to be applicable to the particular case. Violations of such conditions or safeguards that are a part of the Board's decision shall be deemed a violation of this chapter punishable under the provisions of § 330-186.
(3)
Any variance granted by the Board of Appeals pursuant to the provisions of this section shall be construed to be a nonconforming use.
C.
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 this chapter, to grant area variances as defined herein. 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:
[Amended 4-24-2001 by L.L. No. 14-2001]
(1)
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.
(2)
Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance.
(3)
Whether the requested area variance is substantial.
(4)
Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.
(5)
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.
§ 330-167 Specific types of variances.
[Amended 10-27-1998 by L.L. No. 38-1998; 6-26-2001 by L.L. No. 24-2001; 10-23-2001 by L.L. No. 44-2001; 10-28-2014 by L.L. No. 25-2014; 4-13-2021 by L.L. No. 13-2021; 2-11-2025 by L.L. No. 5-2025]
In the instances of the following types of applications, the Board of Appeals is hereby specifically empowered to grant a permit/interpretation, pursuant to the guiding principles and the general standards stated in § 330-166B and C, where applicable, and to the provisions which follow.
A.
With respect to lots lying across district boundary lines, to grant a permit, in appropriate cases where the lot of the appellant, as such lot existed on the effective date of this chapter, lies across the boundary of two districts, for the extension into the more restrictive district but for a distance not exceeding 50 feet measured at right angles to such district boundary line.
B.
With respect to nonconforming uses, buildings, structures and lots:
(1)
To grant a permit for the extension of such a nonconforming use on the same lot on which it was located or an increase in the degree of nonconformity of a nonconforming building or structure on the lot occupied by such building or structure, provided that:
(a)
In the case of a nonconforming use, such enlargement or extension shall not exceed, in all, 50% of the floor area of such building or structure actually devoted to such nonconforming use on the effective date of this use having first become nonconforming.
(c)
There shall be no change in the nature or character of such nonconforming use or of such building or structure.
(d)
The lot coverage and density shall not be greater than would be permitted by the most restrictive lot coverage and density provisions of this chapter applicable to a permitted use or special exception use of the same nature or character. The term "density" includes, among other things, the number of dwelling units allowed based on the lot area, the number of guest units allowed based on the lot area and the number of uses allowed based on the lot area.
(2)
To grant a permit for the reconstruction, structural alteration, restoration or repair of a building or structure used for a nonconforming use, to an extent not to exceed an aggregate 100% of the gross floor are of such building or structure.
C.
With respect to yard requirements, to grant a variance modifying the yard requirements of a nonconforming lot which qualified under the terms of § 330-115D as to ownership, but where compliance with the dimensional provisions of this chapter is not feasible.
D.
With respect to fences, to grant a permit, in appropriate cases, for a higher fence or wall than the maximum heights stipulated in § 330-109.
E.
With respect to accessory parking and truck loading spaces:
(1)
To waive, in whole or in part, the requirements of §§ 330-94, 330-95 and 330-96 for off-street parking and truck loading spaces in a case where the Town owns or operates a public parking and/or truck loading area within 500 feet of the lot and where the Board of Appeals determines that there is no need for additional facilities.
(2)
(3)
To permit a reduction in the number of off-street parking spaces and/or truck loading spaces originally required and installed for a particular use pursuant to §§ 330-94, 330-95 and 330-96 in cases where the Board of Appeals determines that, by reason of diminution in number of dwelling units or residents or in floor area, seating capacity or area or number of employees or change in other factors determining the demand for such spaces, the proposed reduction in available spaces will be consistent with the requirements of said sections, and further provided that the area so withdrawn from these uses shall remain in reserve for potential future increases in need.
F.
With respect to temporary building permits, to grant a temporary building permit for a period not to exceed one year for a nonconforming building, structure or use incidental to a building or other construction project, including such uses as the storage of building supplies and machinery, a real estate office or model houses located on or near a tract of land where individual properties are being offered for sale, provided that:
(1)
Such temporary permit shall be issued only upon written agreement by the owner or his agent to remove such building, structure or use or to convert it to a conforming use upon the expiration of the permit.
(2)
Such permit shall be subject to such reasonable conditions as the Board of Appeals shall determine to be necessary to protect the public health, safety, morals or general welfare.
G.
With respect to temporary directional signs indicating the location of a real estate subdivision:
(1)
To grant a permit for the location of a temporary directional sign off the subdivision site for a period of one year, provided that:
(a)
Such temporary permit shall be issued only upon written agreement by the owner or his agent to remove such temporary directional sign upon the expiration of the permit.
(b)
Such permit shall be subject to such reasonable conditions as the Board of Appeals shall determine to be necessary to protect the public health, safety, morals or general welfare.
(c)
Only the minimum number of such signs is permitted, consistent with their purpose.
(2)
Such permit may be renewed annually, at the direction of the Board of Appeals, for not more than two additional years.
H.
With respect to the addition of a second dwelling on a lot, the Zoning Board of Appeals shall find that the landowner has exhausted all possible opportunities to acquire and transfer development rights or PBCs pursuant to the applicable provisions of this chapter.
I.
With respect to the creation of undersized lots, the Zoning Board of Appeals shall find that the landowner has exhausted all possible opportunities to acquire and transfer development rights or PBCs pursuant to the applicable provisions of this chapter. However, the following are exempt from this provision:
(1)
Undersized lots requesting minor lot area and lot width variances (20% and less).
(2)
Nonconforming lots shown on a filed map approved by the Planning Board after October 14, 1957, and filed in the office of the Suffolk County Clerk or the Town Clerk, but not held in single and separate ownership.
J.
With respect to threatened historic and cultural landmarks:
(1)
To grant a special use permit for such use or uses compatible with an intent to preserve, protect, restore or promote the historic or cultural integrity of a district, site, building, structure or object that meets the definition, herein, of a historic district or landmark, as determined by the Landmarks and Historic District Board, and which is being threatened by new development, alteration or replacement and such relief from parking and other requirements of this chapter as is appropriate, provided that the Board of Appeals determines that:
(a)
A threat exists to the continuance of the historic district or landmark as a historic or cultural Town resource.
(b)
Such permit is in the best interest of the Town and not contrary to the visions, goals and directives expressed in the Town's Comprehensive Plan.
(c)
Such permit is needed to support the continued integrity of the historic district or landmark.
(d)
Such permit is for a use that is reasonable as it may relate to existing zoning district provisions, provided that the proposed use is compatible with surrounding land uses.
(2)
Prior to submission of an application to the Zoning Board of Appeals, a site plan for the proposed use or uses shall be submitted to the Landmarks and Historic District Board (LHDB), together with the necessary application and documentation required by the LHDB to make findings, recommendations and comments with respect to whether or not the subject district, site, building, structure or object meets the definition of "landmark" in § 330-5 and/or the criteria for landmark or historic district designation pursuant to § 330-321B(1) and (2).
(4)
Such special use permit shall be conditioned on the following:
(a)
The district, site, building, structure or object shall be designated by the Town Board as an historic district or landmark in accordance with Article XXVIII of the Zoning Code of the Town of Southampton.
(b)
A written agreement by the applicant to remove such use or uses or to convert the same to a conforming use upon the termination of the actual landmark itself, its removal from the property, its destruction by natural or other means, or declassification of the historic district or landmark.
(c)
Any such conditions and safeguards as the Board of Appeals shall deem necessary or advisable.
§ 330-167.1 Violation of approval or conditions; penalties for offenses.
[Added 9-22-1998 by L.L. No. 31-1998]
Any violation of the approval or conditions, including specific covenants or easements, established by the Board of Appeals with respect to a specific variance or other application for relief shall be deemed a violation of this chapter punishable under the provisions of § 330-186.