§ 85-108. Area variances from Planning Board.

A. 

Purpose. In order to achieve the goals of well-planned, environmentally sensitive, balanced development, and to provide for comprehensive, unified review of development proposals in a timely manner, we find that it is necessary and desirable to confer upon the Planning Board the authority to grant area variances in order to facilitate the attainment of the aforesaid goals and objectives in connection with its review and approval of site plan applications for development proposals subject to its jurisdiction and for which the Planning Board is lead agency. It is the Town Board's express intent and purpose to supersede, by this section, pursuant to the Municipal Home Rule Law, to the extent necessary, the provisions of Town Law § 267-b by this delegation of authority to the Planning Board as aforesaid.

B. 

The Planning Board is hereby authorized to grant reasonable area variances in connection with site plan applications solely limited to parking, buffer, drainage and landscaping standards as set forth in this chapter and/or as contained in the Subdivision and Land Development Regulations.

C. 

The Planning Board is hereby expressly authorized to grant reasonable variances from the parking requirements set forth in this chapter.

D. 

In making its determination, the Planning Board 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:

(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; and

(5) 

Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the Planning Board, but shall not necessarily preclude the granting of the area variance.

E. 

Public hearings shall be required in connection with site plan review for the following:

(1) 

All applications involving a parking relaxation of greater than 10% or a relaxation of minimum landscape standards of greater than 10% or for any relaxation of buffer area;

(2) 

Any other application, as determined by the Commissioner of the Department of Planning, Environment and Land Management, that may result in significant adverse impacts to surrounding properties; or

(3) 

As otherwise provided by any other provision of this chapter.

F. 

Notification.

[Amended 10-28-2014 by L.L. No. 22-2014, effective 11-4-2014]

(1) 

The applicant shall mail notice of the hearing by either certified or registered mail, return receipt requested, to every property owner, as shown on the current Brookhaven assessment rolls and certified by the Department of the Assessor on a tax map excerpt radius map prepared by that Department within the area immediately adjacent and directly opposite thereto for a distance of 200 feet from the perimeter of the property. The applicant shall mail notice of the hearing by regular mail, to every property owner, as shown on the current Brookhaven assessment rolls and certified by the Department of the Assessor on a tax map excerpt radius map prepared by that Department within the area immediately adjacent and directly opposite thereto for a distance of 201 feet to 500 feet from the perimeter of the property. This five-hundred-foot notice requirement shall be required for all applications submitted on or after the effective date of this amendment.

(2) 

The following shall be submitted with such application:

(a) 

A copy of the notice sent to property owners.

(b) 

The Assessor-certified tax map excerpt radius map in duplicate, containing the names and addresses of the owners to whom notices were sent.

(c) 

Return receipts of mailing.

(d) 

An affidavit of mailing of the aforesaid notices.

(e) 

An affidavit of posting of the notice required herein.

G. 

Posting.

(1) 

For applications involving residential variances, at least one poster, not less than one foot by two feet in size, must be conspicuously posted along each street frontage of the property which is the subject of the application at least 10 days prior to the date set for the public hearing before the Planning Board. For applications involving variances on commercial or industrial parcels, said poster must be not less than three feet by four feet in size and shall be conspicuously posted along each street frontage of the property which is the subject of the application at least 10 days prior to the date set for the public hearing. This ten-day posting requirement for applications involving variances on commercial or industrial parcels shall be required for all such applications submitted on or after the effective date of this amendment. Such posters shall contain the following information:

(a) 

A brief explanation of the proposed variance.

(b) 

That a public hearing will be held before the Planning Board at a specified date, time and place with regard to the proposed application and variance.

(2) 

Said poster must remain in place until the public hearing has been completed and must be removed not later than seven days thereafter. The applicant or applicant's agent shall verify that said poster is still in place on a daily basis and shall promptly replace said poster should it be removed or defaced.

(3) 

The Planning Board shall adopt regulations governing the format of said poster and the manner and place in which it is posted. Said Board may require the applicant to use a poster supplied by it, in which event the Planning Board may set a fee to cover the cost of said poster.

H. 

Expiration of variances.

(1) 

Area variances granted by the Planning Board pursuant to this chapter shall expire within two years of the date of the grant of the Board unless a building permit has been issued and substantial construction has commenced in reliance thereon. The Planning Board may grant a maximum of two extensions, not to exceed one year each, of the grant of approval where a building permit has been issued and substantial construction, with sufficient proof of such substantial construction having commenced in reliance thereon.

(2) 

Area variances granted by the Planning Board pursuant to this chapter for site plans shall expire simultaneously with the expiration of the subject site plan grant of approval.