HomeMy WebLinkAbout2004_3_17_Local_Law_No_5 Local Law No. 5-2004
This local law shall be known as the "Repeal of the Existing Criteria for
Granting Variances " Law.
BE IT ENACTED by the Town Board of the Town of Mamaroneck
Section 1 - Purpose:
In In re Cohen v. Bd. of Appeals, 100 NY 2d 395 (2003), the Court of Appeals
affirmed the lower courts which had invalidated a village's local law that
created criteria for granting variances that differed from the grounds
enumerated by the State Legislature in the Village Law. There is no
meaningful difference between the Town Law and the Village Law on the
criteria for granting variances. Like the zoning code at issue in Cohen, the
criteria for granting variances currently contained in the Mamaroneck Code
differ from the criteria contained in Town Law §267 -b. Accordingly, if
challenged in court, the Mamaroneck law would fall. The purpose of this
local law is to bring the Mamaroneck Code into line with the ruling in
Cohen.
Section 2 -Amendment of a current section of the Mamaroneck Code:
Section 240-89 of the Code of the Town of Mamaroneck hereby is amended
to delete paragraph B. (2) thereof and to substitute the following in its place:
B.
(2) (a) "Use Variance" shall have the same meaning as it has in Town
Law §267 1.
(a).
(b) Upon an appeal from a decision or determination of the Director
of Building Code Enforcement and Land Use Administration regarding the
application of this chapter, the Board of Appeals may grant a use variance
upon a showing by the applicant for such variance that the applicable zoning
regulations and restrictions have caused unnecessary hardship. In
determining whether the applicant has shown unnecessary hardship, the
Board of Appeals shall apply the criteria therefor set forth in section 267-b
2.(b) of the Town Law.
(c) When granting use variances, the Board of Appeals shall grant the
minimum variances that it shall deem necessary and adequate to address the
unnecessary hardship proven by the applicant, while at the same time
preserving and protecting the character of the neighborhood and the health,
safety and welfare of the community.
3. (a) "Area Variance" shall have the same meaning as it has in Town Law
§267 1. (b).
(b) Upon an appeal from a decision or determination of the Director of
Building Code Enforcement and Land Use Administration regarding the
application of this chapter, the Board of Appeals may grant an area variance
to an applicant from the applicable zoning regulations and restrictions. In
determining whether the applicant is entitled to an area variance, the Board
of Appeals shall apply the criteria therefor set forth in section 267-b 3(b) of
the Town Law.
(c) When granting area variances, the Board of Appeals shall grant the
minimum variances that it shall deem necessary and adequate while at the
same time preserving and protecting the character of the neighborhood and
the health, safety and welfare of the community.
Section 3 -Amendment of a current section of the Mamaroneck Code:
Section 240-89 of the Code of the Town of Mamaroneck hereby is
amended to delete paragraph C. thereof in its entirety and to substitute the
following in its place:
C. Imposition of Conditions
When granting either a use variance or an area variance or both, the
Board of Appeals shall have the authority to impose such reasonable
conditions and restrictions as are directly related to and incidental to the
proposed use of the property. Such conditions shall be consistent with the
spirit and intent of this chapter, and shall be imposed for the purpose of
minimizing any adverse impact such variances may have on the
neighborhood or community.
Section 4 -Adoption of a new section of the Mamaroneck Code:
Section 240-89 of the Code of the Town of Mamaroneck hereby is
amended to add a new paragraph D. which reads as follows:
D. The Director of Building Code Enforcement and Land Use
Administration shall maintain copies of sections 267 1. (a), 267 1. (b), 267-b
2. and 267-b 3. of the Town Law and shall distribute them upon request to
persons wishing to apply for a variance.
Section 5 - Severability:
Should any provision of this Local Law be declared invalid or
unconstitutional by any court of competent jurisdiction, such declaration of
unconstitutionality or invalidity shall not affect any other provisions of this
Local Law, which may be implemented without the invalid or
unconstitutional provisions.
Section 6 - Effective Date:
This Local Law shall become effective upon filing with the Secretary of State.
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