The Code Enforcement Officer appointed by the
Common Council shall administer and enforce all provisions of this
chapter. No building permit required under the New York State Uniform
Fire Prevention and Building Code shall be issued unless the project
meets all standards and criteria in this chapter. If no building permit
is required to undertake a project or land use, the Code Enforcement
Officer shall be responsible for ensuring that the project or land
use meets all the standards and criteria of this chapter.
A.
Procedures and forms. The Common Council shall make
and adopt such procedures and forms as necessary for the proper enforcement
and administration of this chapter and to secure its stated purposes
and intent. The Common Council may delegate the responsibility to
prepare such procedures and forms to the Code Enforcement Officer
subject to approval by the Common Council before such forms and procedures
are utilized. The procedures and forms shall not be in conflict with
the provisions of this chapter or any other chapter of the city. The
procedures and forms as approved by the Common Council shall be kept
on file in the office of the Code Enforcement Officer and/or the City
Clerk and available to the public.
B.
Assistants. The Common Council may appoint Code Enforcement
Officer assistants or deputies to assist the Code Enforcement Officer
with such powers and responsibilities as the Common Council deems
appropriate. The use of the term "Code Enforcement Officer" also includes
his or her duly authorized and appointed assistants or deputies, if
any.
The Code Enforcement Officer shall have the
following powers and duties:
A.
Inspections. The Code Enforcement Officer shall have
the right to enter and inspect any building or enter upon any land
at any reasonable hour as necessary in the execution of these duties,
subject to the following conditions:
(1)
The Code Enforcement Officer should make efforts in
good faith to notify the owner and/or tenant before conducting any
inspection.
(2)
The Code Enforcement Officer should display proper
identification upon commencing an inspection.
(3)
Inspections should be conducted in the presence of
the owner or the owner's representative or tenant if he/she so requests
in writing. A written report of each inspection shall be prepared
and kept on file in the office of the Code Enforcement Officer. A
copy of the inspection report shall also be sent to the owner or the
owner's representative.
B.
Records. The Code Enforcement Officer shall maintain
files in his office, the Building Department or the City Clerk's office,
open to the public, of all applications for certificates of compliance,
special use permits, building permits, certificates of occupancy or
use, inspection reports, any and all plans submitted, as well as finial
certificates and permits. The Code Enforcement Officer shall also
maintain records of every complaint of a violation of the provisions
of this chapter as well as any action taken as a result of a complaint
of violation.
C.
Maintenance of Zoning Map. The Code Enforcement Officer
shall maintain for use by the public an up-to-date Zoning Map showing
all district boundaries.
D.
Report to the Common Council. The Code Enforcement
Officer shall, each month, submit to the Common Council a written
report summarizing for the preceding calendar month all permits and
certificates issued as well as the number of violations recorded,
action taken on violations, and the number and types of inspections
conducted.
E.
Certificate of compliance.
(1)
In all districts, the Code Enforcement Officer shall
issue a certificate of compliance before:
(a)
Any structure coming under the provisions of
this chapter is erected, reconstructed, structurally altered or moved
(excluding usual maintenance or repair);
(b)
Any change in use occurs in an existing building;
(c)
Any change in use occurs in a nonconforming
building;
(d)
Any land is used or a use is established.
(2)
Nothing in this provision shall be interpreted to
supersede the requirements of any chapter enacted by the Common Council,
or the requirements of any applicable state law, with respect to the
administration and enforcement of the New York State Uniform Fire
Prevention and Building Code.
(3)
All applications for a certificate of compliance shall
be accompanied by such sketch plans or supporting documentation as
the Code Enforcement Officer may be required to determine compliance
with this chapter. The Common Council may establish a fee for a certificate
of compliance.
(4)
The certificate of compliance shall state that the
proposed structure or land use complies with all provisions of this
chapter.
F.
Building permits. The Code Enforcement Officer shall
be responsible for issuing building permits as required by the New
York State Uniform Fire Prevention and Building Code. The Code Enforcement
Officer shall follow the procedures established under the Uniform
Code as well as determine full compliance with this and other chapters
prior to issuing a building permit.[1]
G.
Certificate of occupancy. In all districts and any
overlay zone, no building or structure for which a building permit
has been issued shall be occupied or used unless the Code Enforcement
Officer issues a Certificate of Occupancy. The Certificate of Occupancy
shall state that the building or structure fully complies with the
requirements of the New York State Uniform Fire Prevention and Building
Code as administered by the City of Hornell, this chapter and the
terms of any variance, special use permit or site plan approval properly
granted under the procedures established by this chapter.
H.
Issuance of notices of violation. Whenever in the
opinion of the Code Enforcement Officer and after proper inspection
there appears to exist a violation of any provision of this chapter
or any procedure adopted pursuant thereto, the Code Enforcement Officer
shall serve written notice upon the appropriate person responsible
for the alleged violation. This notice shall inform the recipient
of the following:
I.
Issuance of stop-work orders. Whenever the Code Enforcement
Officer has reasonable grounds to believe that work on any building
or structure or any use of land is occurring either in violation of
the provisions of this chapter, not in conformity with any application
made, permit granted or other approval issued hereunder, or in an
unsafe or dangerous manner, the Code Enforcement Officer shall promptly
notify the appropriate person responsible to suspend work on any such
building or structure or the use of any such land. Such person shall
immediately suspend such activity until the time that the stop order
has been rescinded. The order and notice shall be in writing, shall
state the conditions under which the work or use may be resumed, and
may be served upon the person to whom it is directed either by delivering
it personally to that person or by posting the stop order upon a conspicuous
portion of the building under construction or premises in use and
additionally sending a copy of the same by certified mail.
J.
Taking of emergency action. If in the opinion of the
Code Enforcement Officer a violation exists which requires immediate
action to avoid a direct hazard or imminent danger to the health,
safety or welfare of occupants of a building or to other persons or
the environment, the Code Enforcement Officer may direct that such
violation be immediately remedied or may take direct action on his/her
own initiative to abate the hazard or danger. Any costs incurred by
such action shall be paid for by the owner, occupant or person responsible
for the violation. The Code Enforcement Officer shall keep on file
an affidavit stating the items of expense and date of execution of
action taken and is furthermore authorized to institute a suit, if
necessary, against the person liable for such expenses, or place a
lien against property, in order to recover the said costs.
Violation by any person, firm or corporation
of any provision or requirement of this chapter or violation of any
statement, plan, application, permit or certificate approved under
the provisions of this chapter shall be considered an offense, and,
upon conviction thereof, penalties shall be imposed as provided elsewhere
in this Code.[1] Each day that a violation is permitted to exist shall
constitute a separate offense.
The lawful use of any building existing at the
time of the enactment or amendment of this chapter may be continued
although such use does not conform to the requirements for the district
in which it is located.
A.
Unsafe structures. Any building declared unsafe by
a competent authority may be restored to a safe condition.
B.
Extension. A nonconforming use can not be extended.
C.
Completion. Any building authorized by a building
permit issued prior to the enactment of this chapter may be constructed
in accordance with such permit and the plans on file and approved
by the Common Council, provided that the foundation is completed at
the time this chapter is enacted or amended and the structure is completed
one year thereafter.
D.
Restoration. Any nonconforming building which has
been damaged by fire or other causes must be repaired or rebuilt within
one year from the date the damage occurred; otherwise, it cannot be
rebuilt.
E.
Abandonment. Whenever a nonconforming use of a building
or land has been inoperative for any reason whatever for a period
of one year, such use shall not thereafter be reestablished.
F.
Changes. A nonconforming use may be changed to a nonconforming
use of the same or higher classification; and when so changed to a
higher classification, such use thereafter shall not be changed to
a lower classification.
A.
No building shall be erected, relocated, added to
or structurally altered until a permit therefor has been issued by
the Code Enforcement Officer. Except upon a written order of the Board
of Appeals, no such permit shall be issued for any building where
said construction, addition or alteration would be in variance with
any of the provisions of this chapter.
B.
There shall be submitted with all applications for
building permits two copies of a layout or plot plan, drawn to scale,
showing the actual dimensions of the lot to be built upon, the exact
size and location on the lot of the building and accessory buildings
to be erected and such other information as may be necessary for the
enforcement of this chapter.
C.
One copy of such layout or plot plan shall be returned, when approved by the Code Enforcement Officer, together with such permit, to the applicant upon the payment of a fee as provided in Chapter 142, Fees.
D.
Building permits must be applied for by the property
owner or his legal representative.
A.
No land shall be occupied or used or changed in use
and no building hereinafter erected, altered or extended shall be
used or changed in use until a certificate of occupancy shall have
been issued by the Code Enforcement Officer stating that the building
and the proposed use thereof or the proposed use of land complies
with the provisions of this chapter.
B.
Certificates of occupancy must be applied for by the
property owner or his legal representative.
C.
The Code Enforcement Officer shall maintain a record
of all building permits and certificates of occupancy, and copies
shall be furnished, upon request, to any person having a proprietary
or tenancy interest in the building affected.
Whenever the requirements of this chapter are
at variance with the requirements of any other lawfully adopted rules,
regulations or ordinances, the more restrictive or that ordinance
imposing the higher standards shall govern.
A.
Purpose and intent.
(1)
As authorized by General City Law 27-a, it is the
intent of these site plan review regulations to promote the health,
safety and general welfare of the city. A clean, wholesome, attractive
environment is declared to be of importance to the health and safety
of the inhabitants of the city and, in addition, such an environment
is deemed essential to the maintenance and continued development of
the economy of the city and the general welfare of its inhabitants.
(2)
It is further the intent to ensure the optimum overall
conservation, protection, preservation, development and use of the
natural and man-related resources of the city, by regulating land
use activity within the city through review and approval of site plans.
It is not the intent to prohibit, per se, any land use activity but
to allow all land use activities which will meet the standards set
forth.
B.
Authorization to review site plans. The Planning and
Development Committee of the Common Council (hereafter referred to
as "the city") is hereby authorized to review and approve, approve
with modifications, or disapprove site plans for land uses within
the city as hereinafter designated pursuant to and in accordance with
the standards and procedures set forth in this local law. The city
may require that site plans be prepared by a licensed architect, landscape
architect, surveyor or engineer. Such requirement shall be made as
soon as possible in the application review process as part of determining
that an application is complete and shall be based on the complexity
of the site features and of the proposed structures(s) or land use
as related to same.
C.
Applicability of review requirements.
(1)
In all zoning districts, all new principal uses as
defined in the zoning code within the city shall require site plan
review and approval before being undertaken, except the following:
(a)
Landscaping or grading which is not intended
to be used in connection with a land use subject to review under the
provisions of this local law.
(b)
Ordinary repair or maintenance or interior alterations
to existing structures or uses.
(c)
Exterior alterations or additions to existing
structures which would not increase the square footage of the existing
structure by more than 25% and having a cost value of less than $35,000.
[Amended 11-27-2007 by L.L. No. 3-2007; 5-27-2008 by L.L. No. 4-2008]
(d)
Nonstructural agricultural or gardening uses
not involving substantial timber cutting.
(f)
The sale of agricultural produce and temporary
structures related to sale of agricultural produce.
(g)
Garage, lawn and porch sales not exceeding three
days. If such sales take place more often than three times in any
calendar year, site plan approval will be required.
(2)
Any person uncertain of the applicability of this
section to a given land use activity may apply in writing to the Code
Enforcement Office for a written jurisdictional determination.
D.
Effect on existing uses. This site plan review does
not apply to uses and structures that are lawfully in existence as
of the effective date of this regulation. Any use, which would otherwise
be subject to this review, that has been discontinued for a period
of one year shall be considered discontinued and subject to review.
E.
Sketch plan advisory option.
(1)
Prior to undertaking any new land use or activity
authorized in the applicable zoning district as a special use, a site
plan approval is required. Applicants for site plan approval are encouraged
to follow the recommended procedures related to the sketch plan conference
as hereinafter set forth. Applicants must comply with all other procedures
and requirements of site plan review.
(2)
Upon request to the Code Enforcement Officer, a sketch
plan conference may be held between the Planning Board and the applicant
prior to the preparation and submission of a formal site plan. The
intent of such a conference is to enable the applicant to inform the
Planning Board of his or her proposal prior to the preparation of
a detailed site plan and for the Planning Board to review the basic
site design concept, advise the applicant as to potential problems
and concerns and to generally determine the information to be required
on the site plan, including if the site plan should be completed by
a licensed professional. In order to accomplish these objectives,
the applicant shall provide to the Code Enforcement Officer and to
the Planning Board the following:
(a)
A sketch showing the locations and dimensions
of existing and proposed structures, parking areas, access, signs
(with descriptions), existing and proposed vegetation, and other planned
features; anticipated changes in the existing topography and natural
features; and, where applicable, measures and features to comply with
flood hazard and flood insurance regulations;
(b)
A general area map showing the location of the
parcel under consideration for site plan review, that portion of the
applicant's property under consideration for development and any adjacent
parcels owned by the applicant, and all adjacent properties, subdivisions,
streets, rights-of-way, easements and other pertinent features;
F.
Site plan review procedures.
(1)
Basic procedures.
(a)
Applicants for site plan review shall submit
to the Code Enforcement Officer a complete application consistent
with the requirements listed. Upon determination by the Code Enforcement
Officer that such application is complete and is subject to site plan
review, the application shall be placed as a review item on the next
available Planning and Development Committee meeting. A copy of the
application will also be forwarded to the Chair of the Planning Board.
The Planning and Development Committee of the Common Council shall
then place the site plan application as a review item on its next
available meeting.
(b)
The Planning Board shall have 30 days from the
date of the aforementioned meeting to make a recommendation with supporting
documentation to the Planning and Development Committee of the Common
Council on whether to approve, approve with modifications, or disapprove
the proposed site plan. The Planning Board may also extend the time
available to make such recommendation, either by mutual agreement
with the applicant or when authorized in writing by the Planning and
Development Committee.
(2)
Public hearing; when required to be held. The city
may conduct a public hearing on the site plan if considered desirable
by a majority of its members. Such hearing shall be required within
62 days of the receipt of the complete application from the Code Enforcement
Officer for site plan review and shall be advertised in the city's
official newspaper or, if there is none, in a newspaper of general
circulation in the town at least five days before the public hearing.
(3)
Final decision. Within 62 days of the Code Enforcement
Officer's receipt of a complete application for site plan approval
or, if a public hearing is held, within 62 days of the close of the
public hearing, the city shall render a decision. In its decision
the city may approve, approve with modifications, or disapprove the
site plan. This time period may be extended by mutual consent of the
applicant and city.
(a)
Approval. Upon approval of the site plan, and
payment by the applicant of all fees and reimbursable costs due the
city, the Planning Board shall endorse its approval on a copy of the
site plan and shall immediately file it and a written statement of
approval with the City Clerk. A copy of the written statement of approval
shall be mailed to the applicant by certified mail, return receipt
requested.
(b)
Approval with modifications. The city may conditionally
approve the final site plan. A copy of the written statement containing
the modifications required by the conditional approval will be mailed
to the applicant by certified mail, return receipt requested. After
adequate demonstration to the Planning Board that all conditions have
been met, and payment by the applicant of all fees and reimbursable
costs due the city, the Planning Board shall endorse its approval
on a copy of the site plan and shall immediately file it and a written
statement of approval with the City Clerk. A copy of the written statement
of approval shall be mailed to the applicant by certified mail, return
receipt requested.
(c)
Disapproval. Upon disapproval of the site plan,
the decision of the city shall immediately be filed with the City
Clerk and a copy thereof mailed to the applicant by certified mail,
return receipt requested, along with the Planning Board's reasons
for disapproval.
(4)
Application requirements.
(a)
An application for site plan approval shall
be made initially in writing to the Code Enforcement Officer and shall
be accompanied by information contained on the following checklist.
Where the sketch plan conference was held, the accompanying information
shall be drawn from the following checklist as determined necessary
by the Planning Board at said sketch plan conference. A site plan
is a rendering or drawing prepared to the following specifications
shown in this checklist:
[1]
Title of drawing, name and address of applicant,
and person responsible for preparation of such drawing.
[2]
North arrow, scale and date.
[3]
Boundaries of the property plotted to scale
by a New York State licensed surveyor. The city may waive this requirement
and allow reuse of tax maps or other existing maps as a base map showing
the property boundaries when either such preexisting information is
available and current or the proposal is of modest scale.
[4]
Location, design, type of construction, proposed
use and exterior dimensions of all existing and proposed buildings.
[5]
Grading and drainage plan, showing existing
and proposed contours, rock outcrops, depth to bedrock, soil characteristics
and watercourses.
[6]
Location, design and type of construction of
all parking and truck loading areas, showing access and egress.
[7]
Provision for pedestrian access.
[8]
Location of any proposed outdoor storage.
[9]
Location, design and construction materials
of all existing or proposed site improvements, including streets,
easements, drains, culverts, retaining walls and fences.
[10]
Description of the method of any new sewage
disposal, and location, design and construction materials of such
new facilities.
[11]
Description of the method of securing public
water, and location, design and construction materials of any new
facilities.
[12]
Location of fire and other emergency zones,
including the location of fire hydrants.
[13]
Location, design and construction materials
of all proposed energy distribution facilities, including electrical,
gas and solar energy.
[14]
Location, size and design and type of construction
of all proposed signs.
[15]
Location and proposed development of all open
areas, including existing vegetative cover.
[16]
Location and design of proposed outdoor lighting.
[17]
Landscaping plan and planting schedule.
[18]
An estimated project construction schedule.
[19]
Identification of any permits from other governmental
bodies required for the project's execution.
(b)
As a condition of final approval, the city may
require such additional information that appears necessary for a complete
assessment of the project.
(5)
Required fee. An application for site plan review
shall be accompanied by a fee as established by the Common Council
available in the office of the City Clerk. All fees must be paid in
full prior to any approval.
(6)
Reimbursable costs. Reasonable costs incurred by the
city for consultation fees or other expenses in connection with the
technical review of a proposed site plan, including but not limited
to administrative, legal and engineering costs, shall be charged to
the applicant and collected in accordance with such procedures and
fees established by the Common Council.
(7)
Review standards: general standards and considerations.
(a)
As authorized by General City Law 27-a, Subdivision
(2), site plan review shall consider, where appropriate, elements
related to parking, means of access, screening, signs, landscaping,
architectural features, location and dimension of buildings, adjacent
land uses and physical features meant to protect adjacent land uses
as well as any additional elements specified in the Zoning Code. More
specifically, the city's review of the site plan shall include, as
appropriate, but is not limited to, the following considerations:
[1]
Location, arrangement, size, design and general
site compatibility of buildings, lighting and signs.
[2]
Adequacy and arrangement of vehicular traffic
access and circulation, including intersections, road widths, pavement
surfaces, dividers and traffic control.
[3]
Location, arrangement, appearance and sufficiency
of off-street parking and loading.
[4]
Adequacy and arrangement of pedestrian traffic
access and circulation, walkway structures, control of intersections
with vehicular traffic and overall pedestrian convenience and safety.
[5]
Adequacy of stormwater and drainage facilities.
[6]
Adequacy of water supply and sewage disposal
facilities.
[7]
Adequacy, type and arrangement of trees, shrubs
and other landscaping constituting a visual and or noise buffer between
the applicant's and adjoining lands, including the maximum retention
of existing vegetation.
[8]
Adequacy of fire lanes and other emergency zones
and the provision of fire hydrants.
[9]
Special attention to the adequacy and impact
of structures, roadways and landscaping in areas with susceptibility
to ponding, flooding and/or erosion.
[10]
Overall impact on the neighborhood, including
compatibility of design considerations, natural features, environmental
effects, neighborhood character, lighting and excessive noise or odor.
[11]
Relationship of the various uses to one another
and their scale.
[12]
Adequacy of floodproofing and prevention.
[13]
Adequacy of building orientation and site design
for consistency with neighboring properties and for energy efficiency.
The extent of which the proposed plan conserves energy use and energy
resources in the community, including the protection of adequate sunlight
for use by solar energy systems.
[14]
Adequacy of open space for play areas, informal
recreation and the retention of natural areas such as wildlife habitats,
wetlands and wooded areas.
(b)
In its review of a sketch plan, the Planning
Board shall consult with the Code Enforcement Officer, and may consult
with any other municipal, regional, state or federal official or agency
as well as any nongovernmental agency that might provide valuable
information on the subject review.
(8)
Review standards: special considerations.
(a)
Conditions. The city shall have the authority
to impose such reasonable conditions and restrictions on a site plan
approval as are directly related to and incidental to the proposed
site plan approval. Upon its approval, any such conditions must be
met in connection with the issuance of permits of any agent or officer
of the city.
(b)
Reservation of parkland on residential site
plans. As authorized by General City Law 27-a, Subdivision (6), The
Planning Board may require that a park or parks suitable for recreation
purposes be included in the site plan approval or a payment in lieu
of such parkland be made to the city consistent with applicable fees.
The Planning Board must make a finding of the suitability of such
park or parkland to the needs of the city as contributed by the particular
site plan and the conditions of the subject property under review
prior to any requirement for parkland or payment in lieu thereof.
The applicable standards of General City Law 27-a, Subdivision (6)(a-d)
shall apply to this review.
(c)
Performance bond or other security. As an alternative
to the installation of required infrastructure and improvement, prior
to approval by the Planning Board, a performance bond or other security
sufficient to cover the full cost of the same, as estimated by the
Building Department or Public Works Department, shall be furnished
to the city by the applicant.
(d)
State Environmental Quality Review Act compliance
required. The State Environmental Quality Review Act (SEQR) requires
the City of Hornell to incorporate consideration of environmental
impacts into its planning, review and decision-making processes, including
land use and development and related zoning and other reviews and
decisions required to be made under these regulations. Accordingly,
compliance with SEQR shall be an integral part of these regulations.
The city shall consider the environmental impacts of land use and
development and related construction actions as determined under SEQR
as part of and prior to any approval and authorization of actions
prescribed in these regulations.
(e)
Standards in the Neighborhood Overlay District.
In addition to the other provisions of site plan review, activities
subject to review in the Neighborhood Overlay District shall also
take into account these additional standards:
[1]
The general design, character and appropriateness
of the proposed use.
[2]
The scale of the proposal in relation to its
site, surrounding properties and the neighborhood.
[3]
Texture, materials and color for any new construction
and their relation to similar features of other properties in the
neighborhood.
[4]
Visual compatibility with surrounding properties,
including the proportion of the front facade, proportion and arrangement
of windows and other openings in that facade roof shape, and the general
rhythm of spacing of properties along the street, including setback
and building orientation.
[5]
The importance of historic, architectural or
other features of significance on or adjacent to the proposed use.
(9)
Appeal procedure. Any person aggrieved by a decision
of any officer, department, board, committee or bureau of the city
may apply to the Supreme Court for a review by a proceeding under
Article 78 of the Civil Practice Law and Rules. Such proceedings shall
be instituted within 30 days after the filing of a decision in the
office of the City Clerk.
(10)
Appeal for area variance. An applicant for a
site plan review at any time during such review may appeal directly
to the Zoning Board of Appeals for an area variance consistent with
the procedures established in General City Law 27-a.
A.
Establishment; membership; meeting.
(1)
A Board of Appeals is hereby established in accordance
with the provisions of § 81 of the General City Law applicable
thereto. The Common Council may also provide for compensation to be
paid to the members of said Board, experts, consultants, attorneys,
clerks and/or a secretary and provide for such other expenses as may
be necessary and proper, not exceeding the appropriations that may
be made by the Common Council for such Board of Appeals.
(2)
The Board of Appeals shall consist of five members
appointed by the Mayor, each to serve for a term of five years, except
that the terms of the five members first appointed or first serving
a five-year term shall be set so that only one member's term expires
in any one year pursuant to the provisions of General City Law § 81,
Subdivisions 3 and 4. Vacancies for the unexpired term of any members
shall be filled for such unexpired period only by the Mayor, or City
Manager, if applicable. Pursuant to § 81, Subdivision 2,
of the General City Law, no person who is a member of the legislative
body of the City of Hornell shall be eligible for membership on the
Board of Appeals.
(3)
The Mayor, or City Manager, if applicable, may designate
a member of the Board of Appeals to serve as Chairman. If a member
is not so designated, the Board of Appeals shall choose its own Chairman
and, in his absence, an Acting Chairman. All meetings of the Board
of Appeals shall be held at the call of the Chairman and at such other
times as the Board may determine.
(4)
Such Chairman or, in his absence, the Acting Chairman
may administer oaths and compel the attendance of witnesses.
(5)
All meetings of such Board shall be open to the public.
Such Board shall keep minutes of its proceedings, showing the vote
of each member on every question. If any member is absent or fails
to vote, the minutes shall indicate such fact.
(6)
The concurring vote of three members of the Board
shall be necessary to make any decision or take action on any appeal
or application or any matter before it which said Board is required
to pass upon under the provisions of this chapter.
B.
Appeals procedure.
(1)
Appeals to the Board of Appeals may be taken by any
person aggrieved or by an officer, department, board or bureau of
the city pursuant to the provisions of § 81-a of the General
City Law.
(2)
Such appeal shall be taken within 60 days after the
Code Enforcement Officer has taken action on any matter under the
provisions of this chapter and after the filing in the City Clerk's
office of any order, requirement, decision, interpretation or determination
of the Code Enforcement Officer by filing with the Code Enforcement
Officer and with the Board of Appeals a notice of appeal specifying
the grounds thereof and the relief sought.
(3)
The Code Enforcement Officer from whom the appeal
is taken shall forthwith transmit to the Board of Appeals all the
papers constituting the record upon which the action appealed from
was taken.
(4)
The Board of Appeals shall conform to the procedures set forth in §§ 81-a and 81-b of the General City Law with respect to matters within its appellate jurisdiction and § 315-38C of this chapter and § 27-b of the General City Law with respect to its original jurisdiction over special use permits or special exceptions as set forth below.
(5)
The Board of Appeals may also adopt its own rules
of procedure to govern the review of appeals and applications and
the conduct of its business. At a minimum, all applications made to
the Board of Appeals shall be in writing and on a form prescribed
by the Board of Appeals and provided by the City Clerk. Every application
shall refer to the specific provisions of the law or action being
appealed and shall exactly set forth the interpretation that is claimed,
the use for which the variance is sought or the details of the appeal
that is applied for and the grounds on which it is claimed that the
appeal should be granted, as the case may be. The Board of Appeals
may require additional information which it deems necessary for adequate
review and evaluation of the interpretation, variance or appeal being
sought.
(6)
A hearing shall be held for all appeals, in conformance
with the requirements of General City Law § 81-a. Every
decision of the Board of Appeals shall contain a full description
of reasons for granting or denying the appeal and shall immediately
be filed in the office of the City Clerk and copies thereof mailed
to the applicant and to the Zoning Officer. The reasons for the Board
of Appeals' action shall be set forth in the minutes of the Board
of Appeals meeting at which the action was taken. Each member's vote
shall be recorded.
(7)
Every rule and regulation, every amendment or repeal
thereof, and every order, requirement, decision or determination of
the Board of Appeals shall, within five business days after such decision
is rendered or such action taken, be filed in the office of the City
Clerk and shall be a public record.
(8)
Required referral.
(a)
A full statement of any appeal that meets the
referral requirements of § 239-m of the General Municipal
Law shall also be referred at least five days prior to the public
hearing to the County Planning Agency for its review, pursuant to
§ 81-a of the General City Law. Such actions shall include
those that affect property located within 500 feet of the following:
[1]
Municipal boundary.
[2]
Boundary of any existing or proposed county
or state park or other recreation area.
[3]
Right-of-way of any existing or proposed county
or state parkway, thruway, expressway, road or highway.
[4]
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.
[5]
Existing or proposed boundary of any county-
or state-owned land on which a public building or institution is situated.
(b)
No action shall be taken by the Board of Appeals
on such appeal until an advisory recommendation has been received
from said county bureau or 30 calendar days have elapsed since said
county bureau was sent such full statement.
(9)
The Board of Appeals shall comply with the provisions
of the State Environmental Quality Review Act and its implementing
regulations with respect to any appeal or application before it which
requires such compliance.
C.
Powers and duties. The Board of Appeals shall have
all the powers and duties prescribed by § 81-b of the General
City Law with respect to appeals and § 27-b of the General
City Law with respect to special exceptions and by this chapter, which
include the following:
(1)
Interpretations: upon appeal from a decision by the
Code Enforcement Officer, to decide any question involving the interpretation
of any provision of this chapter, including determination of the exact
location of any zoning district boundary.
(2)
Variances: to vary or adapt the strict application
of any of the requirements of this chapter with respect to use variances
and/or area variances as such terms are defined in § 81-b
of the General City Law. In granting any such variance, the Board
of Appeals shall follow the tests prescribed in § 81-b,
Subdivisions 3 and 4, of the General City Law. The Board of Appeals
may also prescribe any conditions to an area variance and/or use variance
that it deems necessary or desirable pursuant to the guidance set
forth in § 81-b, Subdivision 5, of the General City Law.
(3)
Referrals/recommendations: to review and provide a
recommendation, if required, with respect to any matter or application
referred to it pursuant to the provisions of this chapter.
(4)
Special exceptions. When, in its judgment, the public
convenience and welfare will be substantially served and the appropriate
use of neighboring property will not be injured thereby, the Board
of Appeals may, in a specific case, after due notice and public hearing
and subject to appropriate conditions and safeguards, determine and
vary the application of the regulations of this chapter in harmony
with their general purposes and intent as follows:
(a)
Grant, in undeveloped sections of the city,
temporary and conditional permits for not more than two years for
structures and uses in contravention of the use regulations controlling
residence districts, provided that such uses are important to the
undeveloped sections, and also provided that such uses are not prejudicial
to adjoining and neighboring sections already developed.
(b)
Permit public utility or public service uses
or public buildings in any district when found to be necessary for
the public health, safety or the general welfare.
(c)
Permit fraternal, society or club buildings
in residence zones, provided that they are not used chiefly for a
service customarily carried on as a gainful business, and further
provided that the applicant files with said Board of Appeals the written
consents, duly acknowledged, of the owners of at least 75% of all
land, other than city or public streets, within the city which lies
outside of and within 600 feet of each boundary line of the lot or
lots to be used for such buildings.
(d)
Dwellings on small lots. Notwithstanding the
limitations imposed by any other provision of this chapter, the Board
of Appeals may permit the erection of a dwelling on any parcel of
land separately owned or under contract of sale at the time of the
passage of this chapter and containing an area or width smaller than
that required for a dwelling under this chapter, provided that the
yard dimensions and other requirements shall conform as closely as
possible to the requirements for residential districts.
D.
Decisions. The Board of Appeals shall render a decision
on an appeal or other application before it within 62 days of the
close of the public hearing. Every decision of the Board of Appeals
shall be recorded in accordance with standard forms adopted by said
Board and shall fully set forth the circumstances of the case and
shall contain a full record of the findings on which the decision
is based. Every decision shall be by resolution of said Board, with
each such decision being filed in the office of the City Clerk within
five business days thereof. The Board of Appeals shall also notify
the Code Enforcement Officer, the Secretary of the Board of Appeals
and any affected municipality given notice of hearing of its decision
in each case. If applicable, a report on the action taken shall also
be filed within seven calendar days of said action with the County
Planning Agency.
E.
Attachment of conditions. In all cases where the Board
of Appeals grants a variance from the strict application of the requirements
of this chapter, it shall be the duty of said Board to attach such
conditions and safeguards as may be required in order that the result
of its action shall be as nearly as possible in accordance with the
spirit and intent of this chapter and with § 81-b, Subdivision
5, of the General City Law.
F.
Expiration of approval. Unless construction or use
is commenced and diligently pursued within one calendar year from
the date of the granting of a variance, such variance shall become
null and void without further hearing by the Board of Appeals.
G.
Modification of time periods. Any period of time specified
in this article may be extended by mutual written consent of the applicant
and the Board of Appeals.
H.
Relief from decisions. Any person or persons, jointly
or severally aggrieved by any decision of the Board of Appeals, may
apply to the Supreme Court of the State of New York for relief through
a proceeding under Article 78 of the Civil Practice Law and regulations
of the State of New York. Such proceeding shall be governed by the
specific provisions of Article 78, except that the action must be
initiated as therein provided within 30 days after the filing of the
decision of the Board of Appeals in the office of the City Clerk.
All amendments to this chapter shall be in accordance
with the provisions of the General City Law and the City Charter applicable
thereto. Such amendments shall require an advisory review by the Planning
Board consistent with procedures for such review established by the
Common Council. In the absence of such procedures, the Planning Board
shall have 30 days from receipt of a proposed amendment to forward
to the Common Council such written advisory review.
