Types of Appeals
Types of Appeals and Basis for Board Actions
When evaluating the merits of an application, the Zoning Board must base its decision on a specific set of local laws and state statutes that differ for each type of appeal listed below (see the respective application forms and applicable section of the Town Code). An applicant is not automatically entitled to receive relief. When justified, the Appeals Board must grant the minimum relief deemed necessary and adequate to address unnecessary hardship and allow reasonable use of the property in question. The Board has the authority to grant alternative relief to the relief requested, and impose reasonable conditions and restrictions to mitigate potential adverse impacts that are directly related to and incidental to the proposed use of the property (for example requiring an applicant to plant evergreen screening along a property line to protect a neighbor’s privacy).
The following summaries are provided for the convenience of applicants. For a full recitation of the requirements please refer to the relevant zoning code, Town Law, and instructions and application forms.
Area Variances: An area variance (the most common type of application) is a request for relief from dimensional standards contained in the zoning ordinance under the Bulk Schedule, including front, rear, side and total side yard setbacks, setbacks of buildings to bluffs and bulkheads, lot coverage, the height of a structure and yard requirements for accessory structures. The granting or denial of an area variance is based on a “balancing test” consisting of six factors dictated by NYS Town Law used to determine if the benefit to the applicant outweighs the possible detriment to the health, safety, and welfare of the community, or vice versa.
Use Variances: An individual who wants to utilize property for a use that is not permitted or is prohibited by the applicable zoning ordinance, for example operating a gas station in a residential zone district, must apply for a use variance. An applicant for a use variance must prove unnecessary hardship by satisfying each of four stringent tests that collectively demonstrate that for each and every permitted use in the zoning district: the applicant cannot realize a reasonable return from the property as shown by substantial financial evidence; the hardship is unique and is not shared by a majority of parcels in the same zone district; the hardship is not self-created; and the requested relief will not alter the essential character of the neighborhood.
General Special Exception Permits: Special exception permits are authorizations by the ZBA for landowners to use their property in a way the zoning ordinance allows if the Board determines that the permit conditions and standards set forth in the ordinance have been met by the applicant, and that the use will be in harmony with the zoning ordinance and will have no detrimental effects to property or persons in the neighborhood. Often these permits also require site plan approval by the Southold Town Planning Board. Examples of permitted uses by special exception approval of the ZBA include cemeteries, schools, riding academies, nurseries, and veterinary offices.
Special Exception Permit for Bed and Breakfasts: A homeowner may establish a bed and breakfast for the purpose of renting not more than five rooms for lodging and serving breakfast to not more than 10 casual and transient roomers, provided the home is owner-occupied, the property can accommodate two on site parking spaces for the owner and one on site parking space for each of the B&B rooms, and the conversion will comply with all applicable Town laws and New York State Construction Codes.
Special Exception Permit for an Accessory Apartment in an Accessory Structure: A homeowner may establish an accessory apartment within a detached accessory garage, barn, or storage building provided that the accessory structure lawfully existed prior to January 1, 2008, the apartment size is no less than 450 square feet and no more than 750 square feet and contains only one bathroom, is located on one floor only, and is rented to either a family member or an individual or household that is eligible for the Town’s Affordable Housing Registry. The homeowner must occupy either the principal dwelling or the accessory apartment, and provide for a minimum of three off street parking spaces.
Waiver of Lot Merger: When the Building Inspector determines that two adjacent lots owned by the same person have merged by Town Law as a result of up-zoning, the applicant may apply to the Board of Appeals to re-establish the two lots as separate parcels.
Outdoor Special Events at Wineries: These ministerial permits are not reviewed by the Board of Appeals. They are processed by the ZBA office staff and reviewed by the Chairperson/Department Head and other Town agencies such as Planning, Land Preservation, Building, and the Police Department. Wineries and/or organizations planning events at wineries that are outdoors, open to the public, and where the number of attendees exceeds the maximum occupancy of the public areas of the winery building must obtain a Special Event Permit.