Valley Stream City Zoning Code
ARTICLE XXV
Board of Appeals
§ 99-2501 Establishment; membership; terms of office; appointments.
A.
There shall be a Board of Appeals of five members pursuant to the provisions of § 7-712 of the Village Law. Each member of the Board of Appeals shall be appointed for a term of five years by the Mayor, subject to the approval of the Village Board. The members of such Board in office on the effective date of this chapter shall continue in office until the end of the terms for which they were appointed and until their successors have been appointed as herein provided. Appointments shall be for terms so fixed that one shall expire annually and succeeding appointments shall be for five-year terms. The Village Board shall appoint a Chairperson each year or, during the absence of such designation, a Chairperson may be chosen by the Board of Appeals. The Village Board may appoint a Secretary to the Board of Appeals who is not a member of either said Boards. The Board of Appeals shall prescribe rules for the conduct of its affairs as provided by the Village Law of the State of New York. The Board of Appeals may pay for the services of its Secretary or experts, but not in an amount exceeding the budget appropriation for the Board of Appeals made by the Village Board. The Board of Appeals already established shall continue to function under the provisions of this chapter and under the provisions of the Village Law of the State of New York.
B.
There shall be two alternate members of the Board of Appeals who shall be appointed by the Mayor, subject to approval by the Village Board for terms of two years each, except that the term of one of the alternate members initially appointed shall be one year. Thereafter, the term of each alternate member shall be two years from and after the expiration of the term of their predecessors in office. One alternate member shall be designated at the time of appointment as first alternate member. The other alternate member shall be designated at the time of appointment as second alternate member. The first alternate member shall sit as a member of the Board of Appeals to hear and determine in those matters before the Board whenever a regular member of the Board shall be disqualified from participating in such matter due to conflict of interest or unable to participate in hearing and determining such matter due to temporary inability to serve because of illness, absence or disability. In the event that more than one regular member of the Board of Appeals shall be disqualified or unable to participate in hearing and determining a particular matter for the reasons hereinabove set forth, the second alternate member shall sit as a member of the Board for the purpose of hearing and determining such matter. When so sitting to hear and determine a matter before the Board, each alternate member of the Board shall have the same powers and privileges as a regular member of the Board.
§ 99-2502 Powers and duties.
The Board of Appeals shall have all the powers and duties prescribed by the Village Law of the State of New York and by this chapter which are hereinafter more particularly specified, provided that none of the following provisions shall be deemed to limit any power of the Board that is conferred by law.
§ 99-2503 Interpretation.
The Board of Appeals may, on appeal from an order, requirement, decision or determination made by an administrative official or on request by any official, board or agency of the Village, determine 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.
§ 99-2504 Variances.
A.
Authority. On appeal from an order, requirement, decision or determination made by a Department of Building and Code Enforcement Official or on referral of an applicant to the Board of Appeals by an approving agency acting pursuant to this chapter, the Board of Appeals is authorized to vary or modify the strict application of any of the requirements of this chapter, except where otherwise provided, when such strict application would result in practical difficulty or unnecessary hardship that would deprive the owner of the reasonable use of the land or structure involved.
B.
Area variances.
(1)
Where, because of practical difficulty, an applicant requests a variance of the bulk requirements of this chapter, the Board of Appeals may grant a variance in the application of the provisions of this chapter, provided that in each specific case, the Board of Appeals shall find that the application of the requirements of this chapter to the land or building in question creates such practical difficulty. In making this determination, the Board of Appeals shall consider each of the following:
(a)
The variation is not substantial in relation to the requirements.
(b)
The variation would not cause an undue increase of vehicular traffic on streets or roadways.
(c)
The effect of any increased population density which may thus be produced upon available municipal services and facilities is not significant.
(d)
A substantial change in the character of the neighborhood or a substantial detriment to adjoining properties will not be created.
(e)
The difficulty cannot be alleviated by some method feasible for the applicant to pursue other than a variance.
(f)
In view of the manner in which the difficulty arose and considering all of the above factors, the interests of justice will be served by allowing the variance.
(g)
The variation would not cause adverse aesthetic, environmental or ecological impacts on the property or on surrounding areas.
(h)
Was the alleged difficulty 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.
(2)
Area variances of the bulk requirements of this chapter shall be deemed to include, but shall not be limited to, provisions prescribed for height, yard, lot building location, lot coverage by buildings and/or structures, minimum habitable floor area, play space, off-street parking space, off-street loading space and other space, area and dimension regulations.
C.
Use variances. Where, because of unnecessary hardship relating to the land in question, an applicant requests a variance of the use requirements of this chapter for a use not permitted in the district in which the land is located, the Board of Appeals may grant a variance in the application of the provisions of this chapter, provided that in each specific case, the Board of Appeals shall find that the application of the requirements of this chapter to the land in question creates such unnecessary hardship. No such variance shall be granted by the Board of Appeals without a showing by the applicant that the applicable zoning regulations and restrictions have caused unnecessary hardship. In making this determination, the Board of Appeals shall consider each of the following:
(1)
After considering all permitted uses allowed in its districts, the applicant is deprived of all economic use or benefit from the property in question, which deprivation must be established by competent financial evidence.
(2)
The plight of the owner is due to unique circumstances affecting the property which is the subject of the application and not to general conditions in the zoning district.
(3)
The use to be authorized by the variance will not alter the essential character of the neighborhood or locality.
(4)
The use to be authorized by the variance is in reasonable harmony with the intent of this chapter.
(5)
The unnecessary hardship claimed as a ground for the variance has not been created by the owner or by a predecessor in title.
(6)
Findings. In addition to the foregoing, no variance of any of the provisions of this chapter shall be granted by the Board of Appeals unless it finds:
(a)
That there are special circumstances or conditions fully described in the findings of the Board of Appeals applying to the land or building for which the variance is sought, which circumstances or conditions are unique to such land or building and do not apply generally to land or buildings in the zoning district and have not resulted from any act of the applicant.
(b)
That for reasons fully set forth in the findings of the Board of Appeals, the aforesaid circumstances or conditions are such that the strict application of the provisions of this chapter would deprive the applicant of the reasonable use of such land or building and that the variance as granted by the Board of Appeals is the minimum variance that will accomplish this purpose. To this end, the Board may permit a lesser variance than that applied for.
(c)
That the granting of the variance will be in harmony with the general purpose and intent of this chapter and will not be injurious to the neighborhood or otherwise to the public health, safety and welfare.
(7)
Conditions. In granting any variance, the Board of Appeals may impose any conditions that it may deem necessary to accomplish the purposes of this chapter. As a condition of the issuance of any such variance, the Board may require that the variance shall be periodically renewed. In addition, the Board of Appeals may grant a temporary variance, subject to adequate guaranties that the use will be terminated at the end of the period specified or such extension thereof as may be granted by said Board, provided that any such renewal or extension shall be subject to the same procedure as specified herein for the original granting of the variance.
(8)
Permits and certificates. The Board of Appeals, after a public hearing, shall have the power to authorize the Superintendent to issue a building permit, certificate of occupancy or certificate of use, as the case may be, subject to other applicable laws, codes, rules and regulations.
(9)
Fees. Fees for applications for variances shall be established by the Village Board by resolution at an open meeting.
§ 99-2505 Special use permit approval.
A.
The Board of Appeals shall have the power to issue special use permits for specified uses expressly permitted by this chapter, subject to the specific and general conditions set forth in Article XX of this chapter.
B.
Fees. Fees for applications for special use permits shall be established by resolution of the Village Board at an open meeting.
§ 99-2506 Appeals from Board of Appeals determination.
Any person aggrieved by any decision of the Board of Appeals hereunder may, within 30 days of filing of the decision with the office of the Village Clerk, seek judicial review of such determination pursuant to Article 78 of the Civil Practice Laws and Rules.
§ 99-2507 Rules of procedure.
A.
The Board of Appeals may adopt rules and regulations with respect to procedure before it and with respect to any subject matter over which it has jurisdiction subject to approval of the Village Board. Such regulations shall include provisions for conduct of meetings, notification of parties, form of applications and filing of decisions.
B.
Every decision of the Board of Appeals shall be recorded in accordance with a standard format adopted by the Village Board, shall fully set forth the circumstances of the case and shall contain a record of findings on which the decision is based. Every decision of said Board shall be filed in the offices of the Village Clerk within five business days after the day such decision is rendered. Such decision shall be signed by the Chairman.
C.
On all appeals and applications under this article, the Board of Appeals, in addition to the requirements specifically set forth in this section, shall give consideration to the health, safety, convenience and general welfare of the Village and of its property owners and residents and shall act in harmony with the general purpose and intent of this chapter and of the applicable provisions of the Village Law. The determination of the Board of Appeals on all appeals and applications under this section shall be made in furtherance of the purposes set forth in this chapter.
D.
The Board shall not approve any application or appeal under any of the provisions of this section unless it considers in each case that the proposed use of the property or the erection, alteration or maintenance of the proposed building or structure:
(1)
Will not depreciate or tend to depreciate the value of property in the Village;
(2)
Will not create a hazard to health, safety, morals or general welfare;
(3)
Will not be detrimental to the neighborhood or to the residents thereof;
(4)
Will not alter the essential character of the neighborhood; and
(5)
Will not otherwise be detrimental to the public convenience and welfare.
E.
The Board of Appeals shall hold a public hearing on every appeal and application made to it except a request by any official, board or agency of the Village on a question of interpretation. Notice of the hearing and of the substance of the appeal shall be given by publication in the official newspaper of the Village at least 10 days before the date of such hearing. In addition to such publicized notice, the Board of Appeals shall give notice of the substance of every appeal together with notice of the hearing thereon by mailing postal-card notices, at least 10 days before the date of said hearing, to the owners of all land lying within a distance of 300 feet from the exterior boundaries of the land involved in such appeal or application as the names of said owners appear on the last completed assessment roll of the Village. The applicant shall bear the expense of such mailing which shall be in addition to any application fee.
F.
Whenever a variance or special use permit is granted by the Board of Appeals, such variance or special use permit shall be acted upon within one year after the granting of the same unless an extension shall be granted by the Board of Appeals because of the occurrence of unforeseen conditions at the time of the granting of such variance or special use permit. If not so acted upon and completed within one year after the granting of the same, unless extended as aforesaid, such variance or special use permit shall automatically expire without notice.
G.
All appeals and applications made to the Board of Appeals shall be in writing on forms prescribed by the Board of Appeals and approved by the Village Board, and each appeal or application shall fully set forth the circumstances of the case. Each appeal or application 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 variance or special use permit that is applied for and the grounds on which it is claimed that the same should be granted, the use for which the variance or special use permit is sought and the details of any other application to said Board, or other boards where applicable. Every decision of the Board of Appeals shall be recorded in accordance with standard forms adopted by the Board of Appeals and shall fully set forth the circumstances of the case and the findings on which the decision is based.
H.
All provisions of this chapter relating to the Board of Appeals shall be strictly construed. The Board of Appeals, as a body of limited jurisdiction, shall act in full conformity with all provisions of law and of this chapter and in strict compliance with all limitations contained herein.
I.
Whenever applicable, the provisions of the State Environmental Quality Review Act[1] shall be complied with prior to a final action by the Board of Appeals.
[1]
Editor's Note: See Environmental Conservation Law § 8-0101 et seq.
§ 99-2508 Referral to Nassau County Planning Commission.
B.
Failure of the Nassau County Planning Commission to report its recommendations within 30 days after receipt of a full statement of such referred material, or such longer period as may have been agreed upon by it and the Board of Appeals, shall be construed as approval.
C.
If the Nassau County Planning Commission disapproves the proposed appeal or application or recommends modification thereof, the proposal shall not become effective except by a vote of a majority plus one of all members of the Board of Appeals of a resolution fully setting forth the reasons for such contrary action.
D.
A report of the decisions of the Board of Appeals shall be filed with the Nassau County Planning Commission if referral was initially required.
§ 99-2509 Fees.
Fees for any application before the Board of Appeals, including interpretations, shall be established by the Village Board by resolution at an open meeting.