§ 230-67Administrative standards.
§ 230-68Flood development permits.
§ 230-69Building permits.
§ 230-70Zoning permits.
§ 230-71Site plan review.
§ 230-72Use and area variances.
§ 230-74Enforcement and penalties.
Whenever in the course of the administration and enforcement of this chapter it is necessary or desirable to make any administrative decision, then, unless other standards are in this chapter provided, the decision shall be made so that the result will not be contrary to the spirit and purpose of this chapter or injurious to the surrounding neighborhood.
A Floodplain District is hereby established and shall apply to all areas of special flood hazards within the jurisdiction of the City of Lackawanna, New York. The provisions of the FP District take precedence over any other zoning district, zoning article, local law or ordinance to the extent that the provisions of this section are inconsistent with such other provisions of such other enactments.
The FP District is established to allow floodways within the City of Lackawanna to carry abnormal flows of water in time of flooding, and to prevent encroachment into these floodways that would unduly increase flood heights, velocities, damages and other problems.
Findings. The Council of the City of Lackawanna finds that the potential and/or actual damages from flooding and erosion may be a problem to the residents of the City of Lackawanna and that such damages may include: destruction or loss of private and public housing, damage to public facilities, both publicly and privately owned, and injury to and loss of human life. In order to minimize the threat of such damages and to achieve the purposes and objectives hereinafter set forth, this section is adopted.
Statement of purpose. It is the purpose of this section to promote the public health, safety, and general welfare, and to minimize public and private losses due to flood conditions in specific areas by provisions designed to:
Regulate uses which are dangerous to health, safety and property due to water or erosion hazards, or which result in damaging increases in erosion or in flood heights or velocities;
Require that uses vulnerable to floods, including facilities which serve such uses, be protected against flood damage at the time of initial construction;
Control the alteration of natural floodplains, stream channels, and natural protective barriers which are involved in the accommodation of floodwaters;
Control filling, grading, dredging and other development which may increase erosion or flood damages;
Regulate the construction of flood barriers which will unnaturally divert floodwaters or which may increase flood hazards to other lands; and
Qualify and maintain for participation in the National Flood Insurance Program.
Objectives. The objectives of this section are:
To protect human life and health;
To minimize expenditure of public money for costly flood control projects;
To minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public;
To minimize prolonged business interruptions;
To minimize damage to public facilities and utilities such as water and gas mains, electric, telephone, sewer lines, streets and bridges located in areas of special flood hazard;
To help maintain a stable tax base by providing for the sound use and development of areas of special flood hazard so as to minimize future flood blight areas;
To provide that developers are notified that property is in an area of special flood hazard; and
To ensure that those who occupy the areas of special flood hazard assume responsibility for their actions.
Definitions. Unless specifically defined below, words or phrases used in this section shall be interpreted so as to give them the meaning they have in common usage and to give this section its most reasonable application.
- A request for a review of the local administrator's interpretation of any provision of this section or a request for a variance.
- AREA OF SHALLOW FLOODING
- A designated AO or VO Zone on a community's Flood Insurance Rate Map (FIRM) with base flood depths from one to three feet where a clearly defined channel does not exist, where the path of flooding is unpredictable and indeterminate, and where velocity flow may be evident.
- AREA OF SPECIAL FLOOD HAZARD
- The land in the floodplain within a community subject to a one-percent or greater chance of flooding in any given year. This area may be designated as Zone A, AE, AH, AO, A1-99, V, VO, VE or V1-30. It is also commonly referred to as the “base floodplain” or “one-hundred-year floodplain.”
- BASE FLOOD
- The flood having a one-percent chance of being equaled or exceeded in any given year.
- That portion of a building having its floor sub-grade (below ground level) on all sides.
- BREAKAWAY WALL
- A wall that is not part of the structural support of the building and is intended through its design and construction to collapse under specific lateral loading forces without causing damage to the elevated portion of the building or the supporting foundation system.
- Any structure built for support, shelter, or enclosure for occupancy or storage.
- Has the same meaning as "basement."
- COASTAL HIGH HAZARD AREA
- The area subject to high velocity waters, including, but not limited to, hurricane wave wash. The area is designated on a FIRM as Zone V1-30, VE, VO or V.
- Any man-made change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, paving, excavation or drilling operations located within the area of special flood hazard.
- ELEVATED BUILDING
- A non-basement building built to have the lowest floor elevated above the ground level by means of fill, solid foundation perimeter walls, pilings, columns (posts and piers), or shear walls.
- FLOOD BOUNDARY AND FLOODWAY MAP (FBFM)
- An official map of the community published by the Federal Emergency Management Agency as part of a riverine community's Flood Insurance Study. The FBFM delineates a regulatory floodway along watercourses studied in detail in the Flood Insurance Study.
- FLOOD HAZARD BOUNDARY MAP (FHBM)
- An official map of a community, issued by the federal emergency management agency, where the boundaries of the areas of special flood hazard have been defined but no water surface elevation is provided.
- FLOOD INSURANCE RATE MAP (FIRM)
- An official map of a community, on which the Federal Emergency Management Agency has delineated both the areas of special flood hazard and the risk premium zones applicable to the community.
- FLOOD INSURANCE STUDY
- The official report provided by the Federal Emergency Management Agency. The report contains flood profiles, as well as the Flood Boundary Floodway Map and the water surface elevations of the base flood.
- FLOOD or FLOODING
- A general and temporary condition of partial or complete inundation of normally dry land areas from:
- Any combination of structural and nonstructural additions, changes, or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary facilities, structures and their contents.
- Has the same meaning as "regulatory floodway."
- The top surface of an enclosed area in a building (including basement), i.e., top of slab in concrete slab construction or top of wood flooring in wood frame construction.
- FUNCTIONALLY DEPENDENT USE
- A use which cannot perform its intended purpose unless it is located or carried out in close proximity to water, such as a docking or port facility necessary for the loading and unloading of cargo or passengers, shipbuilding, and ship repair. The term does not include long-term storage, manufacture, sales, or service facilities.
- HIGHEST ADJACENT GRADE
- The highest natural elevation of the ground surface, prior to construction, next to the proposed walls of a structure.
- LOWEST FLOOR
- Lowest level, including basement or cellar, of the lowest enclosed area. An unfinished or flood-resistant enclosure, usable solely for parking of vehicles, building access, or storage in an area other than a basement is not considered a building's lowest floor; provided that such enclosure is not built so as to render the structure in violation of the applicable nonelevation design requirements of this section.
- MANUFACTURED HOME
- A structure, transportable in one or more sections, which is built on a permanent chassis and designed to be used with or without a permanent foundation when connected to the required utilities. The term also includes park trailers, travel trailers, and similar transportable structures placed on a site for 180 consecutive days or longer and intended to be improved property.
- MEAN SEA LEVEL
- For purposes of the National Flood Insurance Program, the National Geodetic Vertical Datum (NGVD) of 1929 or other datum, to which base flood elevations shown on a community's Flood Insurance Rate Map are referenced.
- MOBILE HOME
- Has the same meaning as "manufactured home."
- NATIONAL GEODETIC VERTICAL DATUM (NGVD)
- As corrected in 1929, is a vertical control used as a reference for establishing varying elevations within the floodplain.
- NEW CONSTRUCTION
- Structures for which the start of construction commenced on or after the effective date of this section.
- PRINCIPALLY ABOVE GROUND
- At least 51% of the actual cash value of the structure, excluding land value, is above ground.
- ONE-HUNDRED-YEAR FLOOD
- Has the same meaning as "base flood."
- REGULATORY FLOODWAY
- The channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than a designated height as determined by the Federal Emergency Management Agency in a Flood Insurance Study or by other agencies as provided in Subsection G(3)(b) of this section.
- SAND DUNES
- Naturally occurring accumulations of sand in ridges or mounds landward of the beach.
- START OF CONSTRUCTION
- The initiation, excluding planning and design, of any phase of a project, physical alteration of the property, and shall include land preparation, such as clearing, grading, and filling; installation of streets and/or walkways; excavation for a basement, footings, piers, or foundations; or the erection of temporary forms. It also includes the placement and/or installation on the property of accessory buildings (garages, sheds), storage trailers, and building materials. For manufactured homes the "actual start" means affixing of the manufactured home to its permanent site.
- A walled and roofed building, a manufactured home, or a gas or liquid storage tank that is principally above ground.
- SUBSTANTIAL IMPROVEMENT
- Any repair, reconstruction, or improvement of a structure, the cost of which equals or exceeds 50% of the market value of the structure either before the improvement or repair is started or if the structure has been damaged and is being restored, before the damage occurred. For the purposes of this definition, “substantial improvement” is considered to commence when the first alteration of any wall, ceiling, floor or other structural part of the building commences, whether or not that alteration affects the external dimensions of the structure. The term does not, however, include either:
Any project for improvement of a structure to comply with existing state or local building, fire, health, sanitary, or safety code specifications which are solely necessary to assure safe living conditions; or
Any alteration of a structure or contributing structure listed on the National Register of Historical Places or a State Inventory of Historic Places.
- A grant of relief from the requirements of this section which permits construction or use in a manner that would otherwise be prohibited by this section.
Lands to which this section applies. This section shall apply to all areas of special flood hazards within the jurisdiction of the City of Lackawanna.
Basis for establishing the areas of special flood hazard. The areas of special flood hazard identified by the Federal Emergency Management Agency in a scientific and engineering report entitled the "Flood Insurance Study for the City of Lackawanna, of Erie County, New York,” Community No. _____, dated January 2, 1980, with accompanying Flood Insurance Rate Maps and Flood Boundary-Floodway Maps is hereby adopted and declared to be a part of this chapter. The Flood Insurance Study and maps are on file at the Office of the Department of Public Works, Room 311, City Hall, 714 Ridge Road, Lackawanna, New York 14218.
Interpretation, conflict with other laws. This section is adopted in response to revisions to the National Flood Insurance Program effective October 1, 1986, and shall supersede all previous laws adopted for the purpose of establishing and maintaining eligibility for flood insurance. In their interpretation and application, the provisions of this section shall be held to be minimum requirements, adopted for the promotion of the public health, safety, and welfare. Whenever the requirements of this section are at variance with the requirements of any other lawfully adopted rules, regulations, local laws or ordinances, the most restrictive, or that imposing the higher standards, shall govern.
Penalties for noncompliance. No structure shall hereafter be constructed, located, extended, converted, or altered and no land shall be excavated or filled without full compliance with the terms of this section and any other applicable regulations. Any infraction of the provisions of this section by failure to comply with any of its requirements, including infractions of conditions and safeguards established in connection with conditions of the permit, shall constitute a violation. Any person who violates this section or fails to comply with any of its requirements shall, upon conviction thereof, be fined no more than $250 or imprisoned for not more than 15 days, or both such fine or imprisonment. Each day of noncompliance shall be considered a separate offense. Nothing herein contained shall prevent the City of Lackawanna from taking such other lawful action as necessary to prevent or remedy an infraction. Any structure found not compliant with the requirements of this section for which the developer and/or owner has not applied for and received an approved variance under Subsection I of this section will be declared noncompliant and notification sent to the Federal Emergency Management Agency.
Warning and disclaimer of liability. The degree of flood protection required by this section is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by man-made or natural causes. This section does not imply that land outside the area of special flood hazards or uses permitted within such areas will be free from flooding or flood damages. This section shall not create liability on the part of the City of Lackawanna, any officer or employee thereof, or the Federal Emergency Management Agency, for any flood damages that result from reliance on this section or any administrative decision lawfully made there under.
Designation of the local administrator. The Zoning Officer is hereby appointed local administrator to administer and implement this section by granting or denying development permit applications in accordance with its provisions.
Establishment of development permit. A development permit shall be obtained before the start of construction or any other development within the area of special flood hazard as established in Subsection F(2). Application for a development permit shall be made on forms furnished by the local administrator and may include, but not be limited to: plans, in duplicate, drawn to scale and showing the nature, location, dimensions, and elevations of the area in question; existing or proposed structures, fill, storage of materials, drainage facilities, and the location of the foregoing.
Application stage. The following information is required where applicable:
Elevation in relation to mean sea level of the proposed lowest floor (including basement or cellar) of all structures.
Elevation in relation to mean sea level to which any nonresidential structure will be floodproofed. A building permit normally will also be required. See Chapter 75, Article III.
When required, a certificate from a licensed professional engineer or architect that the utility floodproofing will meet the criteria in Subsection H(1)(c).
Certificate from a licensed professional engineer or architect that the nonresidential floodproofed structure will meet the floodproofing criteria in Subsection H(2).
Description of the extent to which any watercourse will be altered or relocated as a result of proposed development.
A stormwater pollution prevention plan (SWPPP), if required for the proposed subdivision under Article XII of this chapter, together with the recommendation of the Stormwater Management Officer to approve, approve with modifications, or disapprove the SWPPP pursuant to § 230-93B of this chapter.
Construction stage. Upon placement of the lowest floor, or floodproofing by whatever means, it shall be the duty of the permit holder to submit to the local administrator a certificate of the elevation of the lowest floor, or floodproofed elevation, in relation to mean sea level. The elevation certificate shall be prepared by or under the direct supervision of a licensed land surveyor or professional engineer and certified by same. When floodproofing is utilized for a particular building, the floodproofing certificate shall be prepared by or under the direct supervision of a licensed professional engineer or architect and certified by same. Any further work undertaken prior to submission and approval of the certification shall be at the permit holder's risk. The local administrator shall review all data submitted. Deficiencies detected shall be cause to issue a stop-work order for the project unless immediately corrected.
Duties and responsibilities of the local administrator. Duties of the local administrator shall include, but not be limited to:
Permit application review.
Review all development permit applications to determine that the requirements of this section have been satisfied.
Review all development permit applications to determine that all necessary permits have been obtained from those federal, state or local governmental agencies from which prior approval is required.
Review all development permit applications to determine if the proposed development adversely affects the area of special flood hazard. For the purposes of this section "adversely affects" means physical damage to adjacent properties. An engineering study may be required of the applicant for this purpose.
Use of other base flood and floodway data. When base flood elevation data has not been provided in accordance with Subsection F(2), Basis for establishing the areas of special flood hazard, the local administrator shall obtain, review and reasonably utilize any base flood elevation and floodway data available from a federal, state or other source, including data developed pursuant to Subsection H(1)(d), in order to administer Subsection H(2), Specific standards, and Subsection H(3), Floodways.
Information to be obtained and maintained.
Obtain and record the actual elevation, in relation to mean sea level, of the lowest floor, including basement or cellar of all new or substantially improved structures, and whether or not the structure contains a basement or cellar.
Maintain for public inspection all records pertaining to the provisions of this section, including variances when granted and certificates of compliance.
Alteration of watercourses.
Notify adjacent communities and the New York State Department of Environmental Conservation prior to any alteration or relocation of a watercourse, and submit evidence of such notification to the Regional Director, Federal Emergency Management Agency, Region II, 26 Federal Plaza, New York, NY 10278.
Require that maintenance is provided within the altered or relocated portion of said watercourse so that the flood-carrying capacity is not diminished.
Interpretation of FIRM boundaries. The local administrator shall have the authority to make interpretations when there appears to be a conflict between the limits of the federally identified area of special flood hazard and actual field conditions. Base flood elevation data established pursuant to Subsection F(2) and Subsection G(3), when available, shall be used to accurately delineate the area of special flood hazards. The local administrator shall use flood information from any other authoritative source, including historical data, to establish the limits of the area of special flood hazards when base flood elevations are not available.
All floodplain development found ongoing without an approved permit shall be subject to the issuance of a stop-work order by the local administrator. Disregard of a stop-work order shall be subject to the penalties described in Subsection F(4) of this section.
All floodplain development found noncompliant with the provisions of this section and/or the conditions of the approved permit shall be subject to the issuance of a stop-work order by the local administrator. Disregard of a stop-work order shall be subject to the penalties described in Subsection F(4) of this section.
Inspections. The local administrator and/or the developer's engineer or architect shall make periodic inspections at appropriate times throughout the period of construction in order to monitor compliance with permit conditions and enable said inspector to certify that the development is in compliance with the requirements of either the development permit or the approved variance.
Certificate of compliance.
It shall be unlawful to use or occupy or to permit the use or occupancy of any building or premises, or both, or part thereof hereafter created, erected, changed, converted or wholly or partly altered or enlarged in its use or structure until a certificate of compliance has been issued by the local administrator stating that the building or land conforms to the requirements of this section.
All other development occurring within the designated flood hazard area will have upon completion a certificate of compliance issued by the local administrator.
Provisions for flood hazard reduction.
General standards. In all areas of special flood hazard the following standards are required:
All new construction and substantial improvements shall be anchored to prevent flotation, collapse, or lateral movement of the structure.
All manufactured homes shall be installed using methods and practices which minimize flood damage. Manufactured homes must be elevated and anchored to resist flotation, collapse, or lateral movement. Manufactured homes shall be elevated to or above the base flood elevation or two feet above the highest adjacent grade when no base flood elevation has been determined. Methods of anchoring may include, but are not to be limited to, use of over-the-top or frame ties to ground anchors. This requirement is in addition to applicable state and local anchoring requirements for resisting wind forces.
Construction materials and methods.
Electrical, heating, ventilation, plumbing, air-conditioning equipment, and other service facilities shall be designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding. When designed for location below the base flood elevation, a professional engineer's or architect's certification is required;
All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of floodwaters into the system;
New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of floodwaters; and
On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding.
All subdivision proposals shall be consistent with the need to minimize flood damage;
All subdivision proposals shall have public utilities and facilities such as sewer, gas, electrical, and water systems located and constructed to minimize flood damage;
All subdivision proposals shall have adequate drainage provided to reduce exposure to flood damage; and
Base flood elevation data shall be provided for subdivision proposals and other proposed developments (including proposals for manufactured home parks and subdivisions) greater than either 50 lots or five acres.
All proposed development in riverine situations where no flood elevation data is available (unnumbered A Zones) shall be analyzed to determine the effects on the flood carrying capacity of the area of special flood hazards set forth in Subsection G(3)(a), permit review. This may require the submission of additional technical data to assist in the determination.
In all areas of special flood hazard in which base flood elevation data is available pursuant to Subsection G(3)(b) or Subsection H(1)(d) and no floodway has been determined the cumulative effects of any proposed development, when combined with all other existing and anticipated development, shall not increase the water surface elevation of the base flood more than one foot at any point.
Specific standards. In all areas of special flood hazards where base flood elevation data has been provided as set forth in Subsection F(2), Basis for establishing the areas of special flood hazards, and Subsection G(3)(b), Use of other base flood data, the following standards are required:
Residential construction. New construction and substantial improvements of any resident structure shall:
Have the lowest floor, including basement or cellar, elevated to or above the base flood elevation.
Have fully enclosed areas below the lowest floor that are subject to flooding designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must either be certified by a licensed professional engineer or architect or meet or exceed the following minimum criteria:
A minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding;
The bottom of all such openings shall be no higher than one foot above the lowest adjacent finished grade; and
Openings may be equipped with louvers, valves, screens or other coverings or devices provided they permit the automatic entry and exit of floodwaters.
Nonresidential construction. New construction and substantial improvements of any commercial, industrial or other nonresidential structure, together with attendant utility and sanitary facilities, shall either: have the lowest floor, including basement or cellar, elevated to or above the base flood elevation; or be floodproofed so that the structure is watertight below the base flood level with walls substantially impermeable to the passage of water. All structural components located below the base flood level must be capable of resisting hydrostatic and hydrodynamic loads and the effects of buoyancy.
If the structure is to be elevated, fully enclosed areas below the base flood elevation shall be designed to automatically (without human intervention) allow for the entry and exit of floodwaters for the purpose of equalizing hydrostatic flood forces on exterior walls. Designs for meeting this requirement must either be certified by a licensed professional engineer or a licensed architect or meet the following criteria:
A minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding;
The bottom of all such openings shall be no higher than one foot above the lowest adjacent finished grade; and
Openings may be equipped with louvers, valves, screens or other coverings or devices provided they permit the automatic entry and exit of floodwaters.
If the structure is to be floodproofed:
A licensed professional engineer or architect shall develop and/or review structural design, specifications, and plans for the construction, and shall certify that the design and methods of construction are in accordance with accepted standards of practice to make the structure watertight with walls substantially impermeable to the passage of water, with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy; and
A licensed professional engineer or licensed land surveyor shall certify the specific elevation (in relation to mean sea level) to which the structure is floodproofed. The local administrator shall maintain on record a copy of all such certificates noted in this section.
Construction standards for areas of special flood hazards without base flood elevations. New construction or substantial improvements of structures, including manufactured homes, shall have the lowest floor, including basement, elevated to or above the base flood elevation as may be determined in Subsection G(3)(b) or two feet above the highest adjacent grade where no elevation data is available.
New construction or substantial improvements of structures, including manufactured homes, shall have the lowest floor (including basement) elevated at least two feet above the highest adjacent grade next to the proposed foundation of the structure.
Fully enclosed areas below the lowest floor that are subject to flooding shall be designed to automatically (without human intervention) allow for the entry and exit of floodwaters for the purpose of equalizing hydrostatic flood forces on exterior walls. Designs for meeting this requirement must either be certified by a licensed professional engineer or a licensed architect or meet the following criteria:
A minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding;
The bottom of all such openings shall be no higher than one foot above the lowest adjacent finished grade;
Openings may be equipped with louvers, valves, screens or other coverings or openings, provided they permit the automatic entry and exit of floodwaters.
Floodways. Located within areas of special flood hazard are areas designated as floodways (see definitions, Subsection E). The floodway is an extremely hazardous area due to high velocity floodwaters carrying debris and posing additional threats from potential erosion forces. When floodway data is available for a particular site as provided by Subsection F(2) and Subsection G(3)(b), all encroachments, including fill, new construction, substantial improvements, and other development are prohibited within the limits of the floodway unless a technical evaluation demonstrates that such encroachments shall not result in any increase in flood levels during the occurrence of the base flood discharge.
The Zoning Board of Appeals as established by the City of Lackawanna shall hear and decide appeals and requests for variances from the requirements of this section.
The Zoning Board of Appeals shall hear and decide appeals when it is alleged there is an error in any requirement, decision, or determination made by the local administrator in the enforcement or administration of this section.
Those aggrieved by the decision of the Zoning Board of Appeals may appeal such decision to the Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules.
In passing upon such applications, the Zoning Board of Appeals shall consider all technical evaluations, all relevant factors, standards specified in other parts of this section, and:
The danger that materials may be swept onto other lands to the injury of others;
The danger to life and property due to flooding or erosion damage;
The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;
The importance of the services provided by the proposed facility to the community;
The necessity to the facility of a waterfront location, where applicable;
The availability of alternative locations for the proposed use which are not subject to flooding or erosion damage;
The compatibility of the proposed use with existing and anticipated development;
The relationship of the proposed use to the Comprehensive Plan and floodplain management program of that area;
The safety of access to the property in times of flood for ordinary and emergency vehicles;
The costs to local governments and the dangers associated with conducting search and rescue operations during periods of flooding;
The expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and
The costs of providing governmental services during and after flood conditions, including search and rescue operations, maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water systems and streets and bridges.
Upon consideration of the factors of Subsection I(1)(d) and the purposes of this section, the Zoning Board of Appeals may attach such conditions to the granting of variances as it deems necessary to further the purposes of this section.
The local administrator shall maintain the records of all appeal actions, including technical information and report any variances to the Federal Emergency Management Agency upon request.
Conditions for variances.
Generally, variances may be issued for new construction and substantial improvements to be erected on a lot of 1/2 acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, providing items in Subsection I(1)(d) through  have been fully considered. As the lot size increases beyond the 1/2 acre, the technical justification required for issuing the variance increases.
Variances may be issued for the reconstruction, rehabilitation or restoration of structures and contributing structures listed on the National Register of Historic Places or the State Inventory of Historic Places, without regard to the contributing structures procedures set forth in the remainder of this section
Variances may be issued by a community for new construction and substantial improvements and for other development necessary for the conduct of a functionally dependent use, provided that:
Variances shall not be issued within any designated floodway if any increase in flood levels during the base flood discharge would result.
Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.
Variances shall only be issued upon receiving written justification:
A showing of good and sufficient cause;
A determination that failure to grant the variance would result in exceptional hardship to the applicant; and
A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public or conflict with existing local laws or ordinances.
Any applicant to whom a variance is granted for a building with the lowest floor below the base flood elevation shall be given written notice that the cost of flood insurance will be commensurate with the increased risk resulting from lowest floor elevation.
Applications for building permits shall be submitted to the City of Lackawanna Code Enforcement Officer in accordance with Chapter 75, Building Construction.
No building permit shall be issued unless the applicant has received a zoning permit from the City Zoning Officer in accordance with the provisions of this chapter.
Authorization. The City Zoning Officer is authorized to approve or disapprove zoning permit applications in accordance with the standards outlined in this chapter.
Application. It shall be unlawful to commence the excavation for, or the construction of, any building or structure, including accessory buildings, or to commence the moving or alteration of any building structure, including accessory buildings, until the City Zoning Officer has issued a zoning permit for such work.
Applications for zoning permits shall be submitted to the City Zoning Officer.
Where the use is identified in the provisions of this chapter as requiring site plan review, the application shall be forwarded to the Planning and Development Board for approval in accordance with the provisions of this chapter.
If the proposed excavations, construction, alterations or moving as set forth in the application are in conformity with the provisions of this chapter the Zoning Officer may issue a zoning permit for such excavation, construction, alteration or moving. The issuance of a zoning permit shall in no case be construed as waiving any provision of this chapter.
If a zoning permit is denied, the Zoning Officer shall state such refusal, in writing, with the cause and shall immediately mail notice of such refusal to the applicant at the address indicated on the application.
Each order, requirement, decision, interpretation or determination of the Zoning Officer shall be filed in the Zoning Officer's office within five business days from the day its is rendered and shall be a public record.
Any applicant, after being denied zoning permit, may appeal the Zoning Officer's findings to the Zoning Board of Appeals for an interpretation or, if appropriate, a variance. An appeal shall be taken within 60 days after the filing of any order, requirement, decision, interpretation or determination of the Zoning Officer. Where an appeal is requested, the Zoning Officer shall notify and forward all necessary supporting information to the Zoning Board of Appeals Secretary.
A zoning permit shall become void 12 months from the date of issuance unless substantial progress has been made by that date on the project described therein.
Authorization. The Planning and Development Board is authorized to review and approve, approve with modifications or conditions or disapprove site plans in accordance with the standards outlined in this chapter.
Application. Site plan review and site plan approval by the City of Lackawanna Planning and Development Board shall be required for all uses, buildings and structures that require site plan approval as outlined in this chapter. Fees outlined and adopted by the City of Lackawanna will apply to all site plan reviews.
Preapplication conference. A preapplication conference may be held between the Zoning Officer and the applicant prior to the submission of a detailed site plan to review the basic site design concept, advise the applicant as to potential problems and determine the information to be required on the site plan. Applicants shall provide the following materials at the preapplication conference:
A statement and rough draft showing the locations and dimensions of existing natural features, principal and accessory structures, parking areas, access roads, signs, proposed landscaping, measures necessary to comply with flood hazard and flood insurance regulations, proposed topographic changes and other planned features.
A sketch or map of the area which shows the site location with respect to nearby streets, rights-of-way, properties, easements and other pertinent features.
A topographic map of adequate scale and detail to show site topography.
Application. Copies of the final site plan and supplementary information along with the application and appropriate fees for site plan review shall be submitted to the City Zoning Officer in a quantity to be determined by the City Zoning Officer for distribution to the City Engineer, Fire Department, Police Department, Planning and Development Board and other review agencies as required (ex. County Planning Department, New York State Department of Transportation where project is on or affects state highways).
Review. Staff and other review agencies shall review and notify the Planning and Development Board in writing of its comments or recommendations at least seven calendar days prior to the scheduled Planning and Development Board meeting regarding the application. The Planning and Development Board shall review the application, site plan and supporting data. In unique or large-scale cases, the Planning and Development Board may retain private, expert consultants to assist in the review.
If a public hearing is considered desirable by the majority of the Planning and Development Board, such hearing shall be conducted within 62 days of the receipt of the application. The Board shall mail notice of said hearing to the applicant at least 10 days before said hearing and shall give public notice to said hearing in the official newspaper of the City at least five days prior to the date thereof. Where required under General Municipal Law § 239-m the Board shall mail notice of the hearing to the County Planning Board at least 10 days prior to the hearing. Within 62 days of the public hearing, or receipt of the application if no public hearing is held, the Board shall, at a regular or special meeting:
Approve upon a finding that:
The proposed site plan is consistent with the development plan, if one is required.
The proposed site plan is consistent with the intent, objectives and specific requirements of this chapter.
Adequate services and utilities will be available prior to occupancy.
The site plan is consistent with all applicable laws.
Approve with modifications or conditions limiting the use and occupancy of the land or proposed buildings consistent with the intent or purposes of this chapter; or
Disapprove the site plan.
The Planning and Development Board shall file a full written record of its minutes and decision with all documents pertaining to the case with the City Clerk, with a copy to the Zoning Officer, and shall mail a copy to the applicant. Where a site plan is denied approval, the Planning and Development Board shall state its reasons for disapproval in writing.
Costs incurred by the Planning and Development Board for consultation fees or other extraordinary expenses in connection with the review of a proposed site plan shall be charged to the applicant. The Board shall notify the applicant prior to it incurring any extraordinary expenses and provide an opportunity for the applicant to remove its application to avoid the expenses.
Expiration. Site plan approvals shall expire after 12 months unless a successful application for a building permit has been made within that period. One six-month extension may be granted to obtain the building permit.
Alterations. Property owners wishing to make any changes in an approved site plan shall submit a revised site plan to the Planning and Development Board for review and approval.
Appeal. Any person aggrieved by any decision of the Planning and Development Board may apply to the Supreme Court for a review under Article 78 of the Civil Practice Law and Rules in accordance with General City Law § 27-a, Subdivision 11. Such proceedings shall be instituted within 30 days after the filing of a decision in the office of the City Clerk.
Site plan contents. The site plan should include or be accompanied by the following information, as deemed appropriate by the Planning and Development Board. The Planning and Development Board may waive requirements set forth in this section as deemed appropriate, but may not waive the requirement that a stormwater pollution prevention plan be submitted where required. The plan shall be prepared by a licensed engineer, architect, landscape architect or surveyor as appropriate.
Application form, notes and other required information.
Title of drawings, including name of the development, name, telephone number and address of applicant and the name of the person who prepared the drawing.
Key plan, north point, professional stamp, scale (1 inch = 20 feet or other appropriate scale) and date.
Zoning, land use and ownership of surrounding and adjacent properties, including all structures on adjacent and surrounding properties.
A boundary survey of the proposed development plotted to scale and including its acreage, a legal description thereof and detailing existing topographic features, including contours, spot elevations, large trees, buildings, structures, streets, property lines, utility easements, rights-of-way and land use.
Layout and number of lots.
All lot dimensions, including, but not limited to, lot frontage, lot area, building coverage, lot coverage, front yard, side yard, rear yard, and building heights.
All improvement dimensions, including, but not limited to, access roads, streets, street names, snow removal/storage areas, parking area, sidewalks, buildings, drains, culverts, retaining walls, fences, etc.
Existing roadways, driveways, sidewalks and pedestrian paths immediately adjoining and opposite from the proposed site, including names.
Location and dimensions of all parking, loading and stacking areas.
Paving, including typical cross sections and profiles of proposed streets, crosswalks, pedestrian walkways and bikeways.
Location, proposed use, height, building elevations, floor plans and finished elevations of all structures.
Colors, materials, dimensions, access and roof top plans of all structures.
Location and proposed development of all open spaces, including parks and playgrounds.
Existing and proposed watercourses, direction of flow and impact on the watershed.
Drainage plan showing existing and finished grades, stormwater management plan, impact of the watershed and any slopes greater than 5%. The best management practices employed to mitigate the impacts of stormwater management shall be set forth in detail. A copy of the storm drainage analysis shall be submitted for review when required by the City Engineer.
Water supply plan, including existing and proposed location of fire hydrants, fire lanes, size of service line and a note indicating backflow preventor.
A description of the method of securing public water and location, design and construction materials of such facilities.
Sewage disposal method and location, design and construction materials of such facilities.
Landscape plan indicating location, type and size of existing trees and vegetation and those to be preserved or removed as well as location, type and size of trees, vegetation, amenities to be provided, tree staking, plant installation, soil preparation details and all other applicable installation details and calculation of the total landscaped area.
Location and proposed development of all buffer areas, including existing vegetative cover.
Location, design and illumination field of all pools, ponds, water features, lighting fixtures, fences and walls.
Location, dimension, design and construction type of all signs.
Required screening and enclosures.
Provisions for barrier-free access.
Applicable pollution controls.
Size and location of hazardous materials storage areas.
Location of public transit stops and shelters.
Proposed easements, restrictions, covenants and provisions for homeowners' associations and common ownerships.
Estimated construction schedule and phasing plan for buildings, earth work and landscaping.
Location, design and construction of all energy distribution facilities, including electrical, gas, solar and wind energy.
Tentative budgeting and financing sources.
Identification of any state or county permits required for the project's execution and documentation of application for and approval status of all necessary permits from state and county officials.
Additional supporting data or plans deemed necessary and relevant to carry out the Planning and Development Board's responsibility for site plan review upon notification to the proposed developer and their decision to proceed with the application.
Security as condition of approval. As an alternative to the installation of required infrastructure and improvements, the Planning and Development Board may require, as a condition of site plan approval, the property owner to furnish cash, an irrevocable letter of credit, a performance bond or other security sufficient to cover the full cost of the same.
Criteria for review and recommendations. In considering and acting upon site plan reviews and approvals, the Planning and Development Board shall consider and may prescribe conditions as necessary to ensure:
The development complies with all applicable regulations of this chapter and all other applicable laws.
The use is designed, located and proposed to be operated so the public health, safety, welfare and convenience will be protected.
The use will not cause substantial injury to the value of the other property in the neighborhood where it is located.
The use will be compatible with adjoining development and the character of the neighborhood where it is located.
Waiver of requirements. The Planning and Development Board may, when reasonable, waive any requirements for the approval, approval with modifications or conditions, or disapproval of site plans submitted for approval. Any such waiver may be exercised in the event any such requirements are found not to be requisite in the interest of the public health, safety or general welfare or inappropriate to a particular site plan. The specific reasons for waiving the application shall be documented with the Board's decision.
Authorization. The Zoning Board of Appeals is authorized to approve, approve with conditions or disapprove area and use variances in accordance with the standards outlined in this chapter.
Applications. On an appeal from an order, requirement, decision or determination of the Zoning Officer or any other administrative official charged with the enforcement of this chapter, where it is alleged that there are practical difficulties or unnecessary hardships in the way of carrying out the strict application of any provision of this chapter, the Zoning Board of Appeals may grant a variance in the strict application of such provision in accordance with this article.
Preapplication conference. A preapplication conference shall be held between the City Zoning Officer and the applicant prior to the preparation and submission of a formal application to the Zoning Board of Appeals to determine the basis for the variance request, advise the applicant as to potential problems, and identify information necessary for a complete variance application package.
An application for variance approval shall be made in writing to the Chairperson of the Zoning Board of Appeals, through the Zoning Officer, and shall be accompanied by a preliminary application.
The preliminary application should include, but need not be limited to, abutting land uses, circulation systems, all existing and proposed public or private rights-of-way and easements, residential areas and general phasing plans. A description of the variance sought shall also be outlined in the application.
Planning and Development Board review. Within 30 days of receipt of the complete preliminary application, the Zoning Officer shall refer the project to the Lackawanna Planning and Development Board for review. The Planning and Development Board shall make a recommendation to the Zoning Board of Appeals within 30 calendar days. This period may be extended by mutual consent of the applicant, the Planning and Development Board and the Zoning Board of Appeals.
After reviewing the preliminary application and recommendations from other involved municipal or county agencies, the Zoning Board of Appeals shall hold a public hearing. Notices of the public hearing shall be mailed at least five calendar days prior to the date of the hearing to the parties, adjacent property owners within 200 feet from the property line, to such other property owners as the Chairman of the Zoning Board of Appeals may direct, to the regional state park commission having jurisdiction over any state park or parkway within 500 feet of the property affected by such appeal and to the County Planning Board, as required by § 239-m of the General Municipal Law. The public hearing shall be advertised at least once in the official City paper or in a newspaper of general circulation at least five calendar days before the hearing.
The Zoning Board of Appeals may adjourn the hearing for a reasonable period to deliver notice to such other property owners as it decides may be interested in said application or appeal.
Final application. A final application, incorporating any revisions or other features recommended by City staff or the Zoning Board of Appeals, shall be submitted within six months of the date of the preapplication conference. Every application shall refer to the specific provision of this chapter and shall exactly set forth the interpretation that is claimed, the plans for a special use or the details of the variance that is applied for, in addition to the following information:
The name and address of the applicant.
The name and address of the owner of the lot to be affected by such proposed change.
A brief description and location of the district lot to be affected by the proposed change.
A reasonably accurate description of the present improvements and additions or changes to be made under the application, indicating the size of such proposed improvements, material and general construction thereof.
A plot plan of the real property to be affected indicating the lot and size of improvements thereon and proposed to be erected thereon.
Within 62 calendar days of receipt of the complete application for final approval of the variance, the Zoning Board of Appeals shall hold a public hearing. Immediately after the public hearing, they shall render a decision of approval, conditional approval or disapproval.
The Zoning Board of Appeals shall file a full written record of its minutes and decision with the City Clerk, with a copy to the Zoning Officer and shall mail a copy to the applicant. Where an application is denied, the record shall state the reasons for denial.
Variance application approvals shall expire if the applicant fails to obtain any necessary building permit or to comply with the conditions of said authorization within six months from the date of authorization thereof.
Costs incurred by the Planning and Development Board for consultation fees or other extraordinary expenses in connection with the review of a proposed site plan shall be charged to the applicant.
The Zoning Board shall refuse to hold further hearings on a denied application or one substantially similar by the applicant for a period of one year unless the Zoning Board of Appeals shall find that changed conditions have occurred which warrant a reconsideration. Such a rehearing would be allowable only upon a motion initiated by a member of the Zoning Board of Appeals and adopted by the unanimous vote of the members present, but not less than a majority of all members.
Any person aggrieved by any decision of the Zoning Board of Appeals may apply to the Supreme Court for a review 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.
Criteria for use variance approvals. The Zoning Board of Appeals may grant a use variance, based upon unnecessary hardship, where the applicant has established all of the following factors:
The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;
The alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood;
The requested use variance, if granted, will not alter the essential character of the neighborhood; and
The alleged hardship has not been self-created.
Criteria for area variance approvals. Area variances may be considered where setback, frontage, lot size, density or yard requirements of this chapter cannot be reasonably met. The Zoning Board of Appeals, in the granting of an area variance, shall grant the minimum variance that it shall deem necessary and adequate and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community. The Zoning Board of Appeals may grant an area variance, on the ground of practical difficulty, upon a consideration of the following:
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;
Whether the benefit sought by the applicant can be achieved by some method feasible for the applicant to pursue, other than an area variance;
Whether the requested area variance is substantial;
Whether the proposed variance will have an adverse effect or impact on the physical and environmental conditions in the neighborhood or district; and
Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the Zoning Board of Appeals, but shall not necessarily preclude the granting of the area variance.
The regulations, restrictions and boundaries established by this chapter may be amended, supplemented, changed or repealed to meet the growing and changing needs of the City of Lackawanna.
The City Council, subject to the provisions and restrictions contained herein, on its own motion, on petition or on recommendation of the Planning and Development Board, by amendment, may supplement, repeal, or change the regulations and provisions of this chapter.
A petition to amend, change or supplement the text of this chapter or any zoning district, as designated on the Zoning Map, shall be filed with the City Clerk on forms obtained by the Zoning Officer and transmitted to the City Council. The project's status under the State Environmental Quality Review Act shall be determined at this time.
The petitioner shall submit a development plan showing the extent, location and character of proposed structures, improvements and uses as well as the overall development density. The Planning and Development Board or City Council may require the plan be modified to meet municipal or public concerns. No building permit or zoning permit shall be issued for any property within the area described by said amendment, except in accordance with the approved development plan, including any conditions or limitations imposed by the Planning and Development Board or City Council.
Planning and Development Board review. Each proposed amendment, except those initiated by the City Planning and Development Board, shall be submitted to the Planning and Development Board for an advisory report and recommendation prior to the public hearing held by the City Council. If the Planning and Development Board fails to submit its recommendation report within 30 days, it shall be deemed to have approved the proposed amendment or change.
The City Council shall hold a public hearing for the proposed amendment within 62 days of the Planning and Development Board's recommendation.
The public hearing shall be advertised at least once in the City of Lackawanna official newspaper at least 10 days before the hearing. The notice shall state the general nature of the proposed amendment in such reasonable detail as will give adequate notice of the subject of the hearing, and shall name the place or places where copies of the proposed amendment may be examined.
A written notice of any proposed change or amendment affecting property within 500 feet of the boundary of any state park shall be given to the regional state park commission having jurisdiction over such facilities at least 10 days prior to the date of such hearing. At the public hearing, full opportunities to be heard shall be given to any citizen and all parties in interest.
An amendment shall be effected by a simple majority vote of the City Council except that the favorable vote of at least 75% of the members of the City Council shall be required for the passage of an amendment which is protested by the owners of 20% or more of the area of land included in the proposed change or the land within 100 feet from the street frontage of such land.
The City Council shall file a full written record of its minutes and decision with all documents pertaining to the case with the City Clerk, with a copy to the Zoning Officer, and shall mail a copy to the applicant. Where an amendment is denied approval, the City Council shall state its reasons for disapproval in writing.
No structure shall hereafter be constructed, located, extended, converted or altered and no land shall be excavated or filled without full compliance with the terms of this chapter and any other applicable regulations.
Whenever a violation of this chapter occurs, any person may file a written complaint with the Zoning Officer who shall properly record such complaint and immediately investigate and report to the City Council. Complaints regarding the State Uniform Building Code shall be filed with the City Director of Development.
Whenever such persons shall have been duly notified by the City Council of the City of Lackawanna, New York, or its duly authorized official, or the Zoning Officer or by service or summons in a prosecution or in any other way that they are committing such violation of this chapter, each week that they shall continue such violation after such notification shall constitute a separate offense punishable by a like fine or penalty.
Any person, firm or corporation who violates, disobeys, neglects or refuses to comply with any provision of this chapter shall be guilty of an offense and upon conviction thereof shall be subject to a fine of not more than $350 or imprisonment for a period of not more than 15 days, or both, for conviction of a first offense. For conviction of a second offense within five years of the first, a fine not less than $350 nor more than $700 or imprisonment not to exceed 15 days, or both, may be imposed. Upon conviction of a third or subsequent offense, all of which were committed within a period of five years, a fine not less than $700 nor more than $1,000 or imprisonment for a period not to exceed 15 days, or both. Such fines or penalties shall be collected as like fines or penalties are now by law collected.
The City of Lackawanna may pursue each violation as a civil remedy for injunction or as criminal prosecution; each shall be mutually exclusive remedies. Nothing herein contained shall prevent the City of Lackawanna from taking such other lawful action as necessary to prevent or remedy an infraction.
Where appropriate, notification of noncompliance will be forwarded to appropriate government enforcement agencies including the Federal Emergency Management Agency.