Wesley Hills City Zoning Code
ARTICLE IX
Board of Appeals
§ 230-38 Organization.
The Board of Trustees shall appoint a Board of Appeals, containing five members, pursuant to § 7-712 of the Village Law of the State of New York.
§ 230-39 Meetings and records. [1]
Procedure. Meetings shall be held at the call of the Chairman and at such other times as the Board may determine. The Board shall adopt rules and regulations governing its procedures. The presence of three members of the Board shall be necessary for a quorum. The concurring vote of three members shall be necessary to affect any variation or variance in this chapter, to reverse any order, requirement, decision or determination appealed from or to decide in favor of the applicant any matter before the Board. The Board shall keep minutes of its proceedings, showing the vote of each member on every question, or if any member is absent or fails to vote, indicating that fact, and shall also keep records of its examinations and other official actions. Every rule, determination, regulation, amendment or appeal thereof and every order, requirement and decision of the Board shall be filed in the office of the Village Clerk within five business days.
§ 230-40 Powers and duties.
A.
General. The Board of Appeals shall have all of the powers and duties prescribed by the Village Law and by this chapter, which powers and duties are summarized and more particularly specified in the following, provided that none of the following sections shall be deemed to limit any of the powers of the Board of Appeals that are conferred by the Village Law. In passing upon any matter before it, the Board shall take into specific consideration the goals of this chapter.[1]
B.
Nonconforming uses. The Board of Appeals is authorized to extend the permitted period for cessation of a nonconforming use in accordance with the requirements of § 230-13B(5) of this chapter; to permit the change of a nonconforming use to another nonconforming use in accordance with § 230-13F of this chapter; and to review and approve, approve with modifications or disapprove a plan for the improvement of a nonconforming use in accordance with § 230-13G.
[Amended 3-12-2002 by L.L. No. 1-2002]
C.
Variances. On appeal from an order, requirement, decision or determination made by on administrative official charged with the enforcement of this chapter, or on referral of an applicant to the Board by an approving agency acting pursuant to this chapter, the Board of Appeals is authorized to vary or modify the strict letter of this chapter, where its literal interpretation would cause practical difficulties or unnecessary hardships, as defined in this section, in such manner as to observe the spirit of this chapter, secure public safety and welfare and do substantial justice.
(1)
Use variances. Where, because of unnecessary hardship relating to the land, an applicant desires to utilize 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 each and every one of the following findings:
[Amended 9-13-1993 by L.L. No. 2-1993]
(a)
That under the applicable zoning regulations, the owner of the property in question cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence; and[2]
(b)
That the alleged hardship relating to the property in question is unique and does not apply to a substantial portion of the district or neighborhood; and
(c)
That the use to be authorized by the variance will not alter the essential character of the neighborhood; and
(d)
That the unnecessary hardship claimed as a ground for the variance 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 itself constitute a self-created hardship; and
(e)
That, within the intent and purposes of this chapter, the variance, if granted, is the minimum variance necessary to afford relief and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community. To this end, the Board may permit a lesser variance than that applied for.
(2)
Area variances. Where, because of practical difficulty, an applicant requests a variance of the lot area or other dimensional requirements of this chapter, 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 a specific finding that the application of the requirements of this chapter to the land in question creates such practical difficulty. In making this determination, the Board shall consider the following factors:
[Amended 9-13-1993 by L.L. No. 2-1993]
(a)
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.
(b)
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.
(c)
Whether the benefit sought by the applicant can be achieved by some method feasible for the applicant to pursue other than an area variance.
(d)
Whether the requested area variance is substantial in relation to the requirement.
(e)
Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.
(f)
Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the Board but shall not necessarily preclude the granting of the area variance.
(g)
The Board, in the granting of an area variance, shall grant the minimum variance that it shall deem necessary and adequate to afford relief and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community. To this end, the Board may permit a lesser variance than that applied for.
(3)
Variances for satellite dishes. Where, because of difficulties in reception of delivered signals, an applicant requests a variance of the requirements of either or both § 230-14U(1) or (2) of this chapter, the Board shall grant a variance in the application of the provisions of this chapter in the specific case, in the event that (and as a condition to the grant of any such variance) the Board shall make a specific finding that the application of the requirements of such sections of this chapter to the land in question prevents or unreasonably limits reception of delivered signals. In making this determination, the Board shall make the following findings:
[Added 12-12-1989 by L.L. No. 2-1989; amended 3-12-2002 by L.L. No. 1-2002]
(a)
In the case of a variance of the requirements of § 230-14U(1), that no point exists within the permitted location for satellite dishes greater than one meter in diameter where such a satellite dish can be installed without preventing or unreasonably limiting reception of delivered signals.
(b)
In the case of a variance of the requirements of § 230-14U(2), that the limitation on the height of such satellite dish will prevent or unreasonably limit reception of delivered signals.
(4)
Variances when Planning Board applications involved. Where a proposed site plan contains one or more features which do not comply with the zoning regulations, or where a proposed special permit use contains one or more features which do not comply with the zoning regulations, or where a proposed subdivision plat contains one or more lots which do not comply with the zoning regulations, application may be made to the Board of Appeals for an area variance or variances pursuant to Subsection C(2), without the necessity of a decision or determination of an administrative official charged with the enforcement of this chapter or a referral by an approving agency acting pursuant to this chapter.
[Added 9-13-1993 by L.L. No. 2-1993]
D.
Other appeals. On appeal from an order, requirement, decision, or determination made by an administrative official charged with the enforcement of this chapter, or on request from any official, agency or Board of the Village, the Board of Appeals is authorized to decide any question involving the interpretation of any provision of this chapter. Interpretations shall be made in accordance with the intent of the particular provision being interpreted.[3]
[3]
Editor's Note: Original § 9.3.6, Decisions of the Architectural Review Board, which immediately followed this subsection, was repealed 9-12-2006 by L.L. No. 4-2006.
E.
Conditions and safeguards. The Board of Appeals, in the granting of both use variances and area variances, may prescribe such reasonable conditions or restrictions applying to the grant of a variance as it may deem necessary in each specific case, in order to minimize the adverse effects of such variance upon the character and property values of the neighborhood or community and to protect the public health, safety and welfare. Such conditions or restrictions shall be directly related to and incidental to the proposed use of the property and/or the period of time such variance shall be in effect. Such conditions or restrictions shall be incorporated in the 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.
[Amended 9-13-1993 by L.L. No. 2-1993]
§ 230-41 Procedures.
A.
Appeal or application. An appeal shall be taken within 60 days of the order or decision appealed from, by filing with the official or agency from whom the appeal is taken and with the Board of Appeals of a notice of appeal, specifying the ground thereof. The official or agency from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from is taken. A referral to the Board for a variance, or a request for an interpretation, may be made at any time. All such appeals and applications to the Board shall be made by the owner or agent duly authorized, in writing, and shall be on forms prescribed by the Board. Each appeal or application shall fully set forth the circumstances of the case, shall refer to the specific provision of the 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 grounds on which it is claimed that the same should be granted.
[Amended 9-13-1993 by L.L. No. 2-1993]
B.
Review by other agencies.
(1)
Upon receipt of a completed appeal or application, the Board of Appeals may forward copies for review and report to the Building Inspector, Code Inspector, Village Engineer and Planning Board, and to other such officials and agencies of the Village as it deems appropriate. All such agencies shall have 45 days from the date of forwarding to submit a report. If approval of a site plan or issuance of a special permit is involved, the Board of Appeals shall forward sufficient copies for review and report to the Planning Board and shall not act on the matter until it has received the report of the Planning Board or 45 days have passed since such forwarding.
(2)
The Board of Appeals shall refer to the Rockland County Planning Board for its recommendation all matters within the provisions of Article 12B, §§ 239-i and 239-m, of the General Municipal Law, which includes real property lying within 500 feet from the boundary of any city, Village, or town, or from the boundary of any existing or proposed county or state parkway, thruway, expressway, road, highway or from the existing or proposed right-of-way of any stream or drainage channel owned by the county or for which the county has established channel lines, or from the existing or proposed boundary of any county or state owned land on which a public building or institution is situated, and any special permit or variance affecting such use or property within a distance of 500 feet. The Rockland County Planning Board shall render its decision within 30 days of referral or within an extended period if agreed upon. If the Rockland County Planning Board fails to report within such period of 30 days or such longer period as has been agreed upon by it and the Board of Appeals, the Board of Appeals may act without such report. If the Rockland County Planning Board disapproves the proposal, or recommends modifications thereof, the Board of Appeals shall not act contrary to such disapproval or recommendation except by a vote of a majority plus one of all members thereof and after the adoption of a resolution fully setting forth the reasons for such contrary action. Within 30 days after final action by the Board of Appeals, a report shall be filed of the final action it has taken with the County Planning Board which had made the recommendations, modifications or disapproval.[1]
C.
Public hearing. The Board of Appeals shall conduct a public hearing on any appeal, application or request made pursuant to this chapter. Such public hearing shall be held within 60 days of the date an appeal is taken or an application or request is made to the Board.
D.
Notice of hearing. Notice of hearing shall be published in the official newspaper at least 10 days prior to the date of such hearing. Notice shall also be sent 10 days prior to the date of such hearing to all property owners within 750 feet of the perimeter of the property, in the same manner as is required for zoning amendments changing the district classification of land, as set forth in § 230-78 of this chapter. The applicant shall cause signs to be posted on such property on each street frontage indicating the date and purpose of such hearing. The costs of all such notice shall be paid by the applicant.
[Amended 12-12-1995 by L.L. No. 1-1995]
E.
Action. The Board of Appeals shall decide upon the appeal within 62 days after the conduct of said hearing. The time within which the Board of Appeals must render its decision may be extended by mutual consent of the applicant and the Board. Every decision of the Board of Appeals shall be by resolution, shall be recorded and shall fully set forth the facts of the case, the findings and the conclusions on which the decision was based. The decision of the Board shall be filed in the office of the Village Clerk with five business days after the day such decision is rendered, and a copy of such resolution shall be mailed to the applicant forthwith.
[Amended 9-13-1993 by L.L. No. 2-1993]
§ 230-42 Expiration of variance.
[Amended 3-3-2020 by L.L. No. 1-2020]
A variance granted under this chapter shall automatically expire if substantial construction, in accordance with the plans for which such variance was granted, has not been completed within 18 months, or such other time limit as may be chosen by the Board of Appeals in connection with its decision, from the date of granting such variance by the Board 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.
§ 230-43 Fees.
Every application or appeal to the Board shall be subject to a fee as set forth in the Fee Schedule of the Village of Wesley Hills.