Upper Brookville City Zoning Code
ARTICLE IX
Board of Appeals 1
§ 205-35 Establishment; meetings and procedure.
A.
A Board of Appeals consisting of five members as provided by the Village Law is hereby created. The terms of the members of said Board, as they now exist, are hereby continued. The new members and the successors of the present members shall be appointed for a term of five years by the Board of Trustees.
B.
Meetings and procedure. The meetings and procedure of the Board of Appeals shall be governed by the provisions of the Village Law. The Board shall adopt rules and regulations, not inconsistent with law or the provisions of this chapter, governing its procedure and the transaction of its business. Such Board shall keep minutes of its proceedings and records of its examinations and other official actions, which minutes and records shall be a public record. Each decision of the Board shall be recorded and filed with the Village Clerk.
§ 205-36 Appeals and variances.
A.
Appeals and referrals.
[Amended 12-21-1998 by L.L. No. 4-1998]
(1)
The Board of Appeals shall, pursuant to the Village Law, hear and decide appeals from and review any order, requirement, decision or determination made by the Building Inspector or other official charged with the enforcement of this chapter and decide matters referred to it by the Planning Board or other agencies of the Village.
(2)
The Board of Appeals, after due notice and public hearing pursuant to law, may decide any referred matter, may reverse or affirm or modify the order, requirement, decision or determination appealed from and shall make such order, requirement, decision or determination as in its opinion ought to be made and to that end shall have all the powers of the Building Inspector or other administrative official from whose order, requirement, decision, interpretation or determination the appeal is taken.
(3)
The Board of Appeals shall render its decision in written form and may render its decision on any appeal or application in a short-form format setting forth the Board's determination and conditions, if any, without enumerating the findings which form the basis for its determination. Any appellant or applicant or person or persons jointly or severally aggrieved by a decision of the Board of Appeals may, within 30 days after the filing of the short-form decision in the office of the Village Clerk, file a written demand with the Village Clerk requesting that the Board of Appeals render its decision in a long-form format containing findings which formed the basis for the Board's determination. The Village Clerk shall promptly deliver this written demand to the Chairman of the Board of Appeals. The Chairman shall then cause the long-form decision to be prepared and, upon its approval by the Board, file it with the Village Clerk.
(4)
In cases where the Board renders a short-form decision and no written demand requesting a long-form decision is filed within the required thirty-day period, the date of filing of the short-form decision with the Village Clerk shall be deemed the date of the filing of the Board's decision for all purposes. In cases where the Board renders or is required to render a long-form decision, the date of the filing of the long-form decision with the Clerk shall be deemed the date of filing of the Board's decision for all purposes.
B.
Variances. In passing upon an appeal or a referred matter, the Board of Appeals may, subject to the requirements set forth in this section and Article 7 of the Village Law, vary or modify the application of the regulations or provisions of this chapter relating to the use, construction or alteration of buildings or structures or the use of land, provided that such variance shall be in harmony with the general purpose and intent of this chapter so that its spirit shall be observed, public safety and welfare secured and substantial justice done.
C.
Use variances.
[Amended 12-21-1998 by L.L. No. 4-1998]
(1)
The Board of Appeals, on appeal from the decision or determination of the administrative officer charged with the enforcement of this chapter, 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:
(a)
For each and every permitted use under the zoning regulations for the particular district where the property is located 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; and
(d)
The alleged hardship has not been self-created by the owner or predecessor in title.
(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.
D.
Area variances.
[Amended 12-21-1998 by L.L. No. 4-1998; 12-16-2003 by L.L. No. 4-2003]
(1)
The 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 or a referral from the Planning Board, to grant area variances as defined herein.
(2)
In making its determination, the 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, welfare and character of the neighborhood or community by such grant. In making such determination the Board shall also consider the following:
(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 other 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; and
(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 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.
E.
Conditions. The Board may prescribe such conditions or restrictions applying to the grant of a variance as it may deem necessary in the specific case, including the posting of cash deposits and bonds and the imposition of deed restrictions on property to ensure compliance with the conditions in order to prevent or minimize any adverse effects of such variance upon other property in the neighborhood; provided, however, that no variance shall be granted to permit a structure or principal use in a district restricted against such structure or use which would result in a substantial deviation from the requirement. Such conditions or restrictions shall be incorporated in the zoning or 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.
F.
Lapse of variance. A variance granted under the provisions of this chapter shall automatically lapse if substantial construction, in accordance with the plans for which such variance was granted, has not been completed within one year from the date of granting such variance by the Board and the filing of its written decision with the Village Clerk (unless such period is specifically extended by the Board's decision) 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.
§ 205-37 Limitations; forms; reports.
A.
Limitations. All provisions of this chapter relating to the Board of Appeals shall be strictly construed. The Board, as a body of limited jurisdiction, shall act in full conformity with all provisions of law and of this chapter and shall observe all limitations contained therein. In passing upon an appeal or referred matter the Board shall observe the provisions of § 205-46. However, the procedural requirements of this chapter shall not operate to deprive an applicant or appellant of the right of application or appeal, provided that such applicant or appellant has substantially observed such procedural requirements.
B.
Forms. All applications and appeals made to the Board of Appeals shall be in writing on forms prescribed by the Board. Each application or appeal shall fully set forth the circumstances of the case. Every application or appeal 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 particular use for which a special permit is sought or the details of the variance that is sought and the grounds on which it is claimed that such variance should be granted.
C.
Reports. The Board of Appeals shall report to the Board of Trustees periodically, at intervals of not more than six months, summarizing all applications and appeals made to it since its last previous report and summarizing its decisions on such applications and appeals. A copy of such report shall be filed with the Planning Board and the Building Inspector at the same time.