The provisions of this chapter shall be administered and enforced by the Building Inspector, who shall issue building permits and zoning permits. No building permit, zoning permit, certificate of occupancy, or other permit or license shall be issued if it would be in conflict with the provisions of this chapter, Chapter
49 of the Goshen Town Code, or any other applicable local, state, or federal law or regulation. The Building Inspector, in consultation with the Town Attorney, shall have the authority to interpret the meaning and applicability of all provisions of this chapter. When a question of interpretation of a specific provision is raised by a board, applicant, or other interested party, the Building Inspector shall, upon request, issue a written interpretation and file it in the office of the Town Clerk. Persons seeking relief from any such interpretation may do so by application to the Zoning Board of Appeals for an interpretation pursuant to §
97-69.
The steps to obtain necessary permits to erect,
occupy, or change the use of a permitted structure or lot are as follows:
A. Any person intending to undertake new construction, structural alteration, or change in the use of a building or lot shall apply to the Building Inspector for a building permit or zoning permit by submitting the appropriate application form and paying the required fee. For rules governing changes of use, see §
97-10E.
B. The Building Inspector shall grant or deny the permit as provided in §
97-64 or refer the application to the Planning Board (or Town Board if appropriate) if a special permit and/or site plan approval is required.
C. If a building or zoning permit is issued, the applicant
may proceed to undertake the action permitted. Upon completion of
any construction, the applicant shall apply to the Building Inspector
for a certificate of occupancy (for building permits only).
D. If the Building Inspector finds that the applicant's action has been taken in accordance with the building permit, the Building Inspector shall issue a certificate of occupancy as provided in §
97-66, allowing the structure to be occupied.
E. If the Building Inspector denies a building or zoning
permit and does not the refer the application to the Planning Board
or Town Board, the applicant may appeal to the Zoning Board of Appeals.
No building or structure hereafter erected, constructed, enlarged, altered, or moved and no enlarged, extended, altered, or relocated portion of an existing building or structure shall be occupied or used until a certificate of occupancy has been issued by the Building Inspector in accordance with the provisions of Chapter
49 of the Town Code, this chapter, and any other applicable laws and regulations.
A. Exception for minor alterations. No certificate of occupancy shall be required for any alteration of or ordinary repair to an existing building or structure which is not structural in nature and which does not require a zoning permit or a building permit pursuant to the provisions of this chapter or of Chapter
49 of the Town Code.
B. Issuance of certificate of occupancy.
(1) The Building Inspector shall examine the location
of any new structures or improvements to existing structures and shall
determine whether or not such new structures or improvements comply
with the setback and other requirements of this chapter, including
the terms and conditions of any site plan approval, special permit,
variance, subdivision approval, or conservation easement granted.
The Building Inspector shall maintain complete records of the dates
of inspections conducted hereunder, the names of all persons attending
such inspections, the extent of completion of the work on each date,
and any other observations relevant to determining compliance with
this chapter.
(2) After work has been completed, inspected, and found
to be in full compliance with the building permit, the Building Inspector
shall issue a certificate of occupancy.
C. Effective date of certificate of occupancy. A certificate
of occupancy shall become effective upon filing in the office of the
Town Clerk, together with the building permit and all previous applications
and approvals granted.
D. Failure to complete construction. Any structure for which a building permit has been issued which remains partially complete with no substantial progress over a twelve-month period shall be considered a violation of this chapter to be remedied pursuant to §
97-67.
[Amended 6-10-2004 by L.L. No. 3-2004; 1-22-2018 by L.L. No. 1-2018]
Pursuant to the provisions of § 267 of the Town Law,
there is hereby established a Zoning Board of Appeals consisting of
five members appointed by the Town Board. Commencing January 1, 2005,
all members of the Board shall serve for a three-year term. The terms
of the members shall be so fixed that no more than two terms shall
expire at the end of each calendar year. The Zoning Board of Appeals
shall have all the powers and duties prescribed by law and this chapter
in connection with appeals to review any order, requirement, decision,
interpretation, or determination made by an administrative official
charged with the enforcement of this chapter, generally the Building
Inspector. An appeal may be taken by any person aggrieved or by any
officer, department, board, or bureau of the Town.
A. Appeals of orders, requirements, decisions, interpretations
or determinations. The Zoning Board of Appeals may reverse or affirm,
wholly or partly, or may modify the order, requirement, decision,
interpretation, or determination appealed from and shall make such
order, requirement, decision, interpretation, or determination as
in its opinion ought to have been made in the matter by the administrative
official charged with the enforcement of this chapter. In so doing,
the Zoning Board of Appeals shall have all the powers of the administrative
official from whose order, requirement, decision, interpretation,
or determination the appeal is taken.
B. Variances, generally.
(1) The Zoning Board of Appeals shall have the power, upon appeal from
a determination by the Building Inspector and after public notice
and hearing, to vary or modify the application of any of the provisions
of this chapter relating to the use, construction, or alteration of
structures or the use of land.
(2) All applications for variances shall be submitted to the Building Department at least 10 days before the meeting of the Zoning Board of Appeals and shall be accompanied by a plan, with the necessary number of copies of the application and plan to be determined by the Building Department. The plan shall be drawn to scale with accurate dimensions, showing the location of all existing and proposed structures on the lot. An application for a use variance may require submission of an agricultural data statement pursuant to §
97-47C.
C. Use variances.
(1) The Zoning Board of Appeals, on appeal from a decision
or determination of the Building Inspector, shall have the power to
grant use variances, authorizing a use of the land which otherwise
would not be allowed by this chapter.
(2) No use variance shall be granted without a showing
by the applicant that applicable zoning regulations and restrictions
have caused unnecessary hardship to the applicant. In order to prove
unnecessary hardship, the applicant shall demonstrate that for each
and every permitted use under this chapter for the district in which
the applicant's property is located:
(a)
The applicant cannot realize a reasonable return,
provided that lack of return is substantial as demonstrated by competent
financial evidence;
(b)
The alleged hardship relating to the property
in question is unique and does not apply to a substantial portion
of the district or neighborhood;
(c)
The requested use variance, if granted, will
not alter the essential character of the neighborhood; and
(d)
The alleged hardship has not been self-created.
(3) Failure to demonstrate any one of the foregoing [Subsection
C(2)(a) through
(d) above] is sufficient to justify the denial of a use variance.
(4) The Zoning Board of Appeals shall consider any agricultural data statement submitted pursuant to §
97-47C.
(5) The Zoning Board of Appeals, in granting use variances,
shall grant the minimum variance that it deems necessary and adequate
to address the unnecessary hardship proven by the applicant and at
the same time preserve and protect the character of the neighborhood
and the health, safety, and welfare of the community.
(6) If the use variance is granted for a nonresidential
use, the applicant shall obtain site plan approval from the Planning
Board prior to commencing the use or obtaining a building permit or
zoning permit.
D. Area variances.
(1) The Zoning Board of Appeals shall have the power,
upon an appeal from a decision or determination of the Building Inspector,
to grant area variances from the area or dimensional requirements.
(2) In making its determination, the Zoning Board of Appeals
shall take into consideration the benefit to the applicant if the
variance is granted, as weighed against the detriment to the health,
safety, and welfare of the neighborhood or community of such grant.
In making its determination the Board shall also consider:
(a)
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;
(b)
Whether the benefit sought by the applicant
can be achieved by some method, feasible for the applicant to pursue,
other than an area variance;
(c)
Whether the requested area variance is substantial;
(d)
Whether the proposed variance will have an adverse
effect or impact on the physical or environmental conditions in the
neighborhood or district; and
(e)
Whether the alleged difficulty was self-created,
which shall be relevant to the decision of the Board but which shall
not necessarily preclude the granting of the area variance.
(3) The Zoning Board of Appeals, in the granting of area
variances, shall grant the minimum variance that it deems necessary
and adequate while preserving and protecting the character of the
neighborhood and the health, safety, and welfare of the community.
E. Imposition of conditions. The Zoning Board of Appeals
shall, in granting use variances and area variances, impose such reasonable
conditions and restrictions as are directly related to and incidental
to the proposed use of the property. Such conditions shall be consistent
with the spirit and intent of this chapter and shall be imposed for
the purpose of minimizing any adverse impact the variance may have
on the neighborhood or community.
F. Procedures.
(1) Application. Appeals shall be taken by filing a written
notice of appeal and any required plans with the Building Inspector
and the Zoning Board of Appeals within 60 days after the filing of
the order, requirement, decision, interpretation, or determination
that is being appealed, on forms prescribed by the Zoning Board of
Appeals. Such application shall refer to the specific provision of
this chapter involved and shall specify the grounds for the variance
requested, the interpretation claimed, or for the reversal of an order,
requirement, decision, or determination of an administrative official.
The Building Inspector shall forthwith transmit all the papers constituting
the record of the appeal to the Zoning Board of Appeals.
(2) Referral to County Planning Board.
(a)
Requests for variances that require referral
to the County Planning Board shall be so referred pursuant to the
General Municipal Law, Article 12-B, §§ 239-l and 239-m,
as amended.
(b)
No action shall be taken on variances referred
to the County Planning Board until its recommendation has been received
or 30 days have elapsed after its receipt of the full statement of
the proposed variance, unless the county and Town agree to an extension
beyond the thirty-day requirement for the County Planning Board's
review.
(c)
County disapproval. A majority-plus-one vote
shall be required to approve any variance which receives a recommendation
of disapproval from the County Planning Board because of the referral
process specified above, along with a resolution setting forth the
reasons for such contrary action.
(3) Public notice and hearing.
(a)
If an agricultural data statement is required, the applicant
shall mail a certified written notice of the variance application
to the owners of the land as identified by the applicant in the agricultural
data statement. Such notice shall include a description of the proposed
project and its location. Proof of such mailing shall be provided
to the Building Department prior to the public hearing.
(b)
The Zoning Board of Appeals shall set a reasonable
time after receipt of a complete application for the hearing of appeals.
(c)
The Secretary of the Zoning Board of Appeals
shall refer all applications for use variances to the Planning Board
for a report prior to the public hearing. If the Planning Board does
not report within 30 days of such referral, the Zoning Board of Appeals
may take action without the Planning Board's report.
(d)
The applicant shall send notice of the public hearing, at least
five days prior to the public hearing, stating the date, place and
substance of the hearing, to all contiguous property owners, as the
names of said owners appear on the last complete assessment roll of
the Town, and to all property owners listed in the agricultural data
statement, if one is filed. Such notice shall be sent by certified
mail, return receipt requested, and the Board may inspect such receipts
to assure proper notification. The cost of mailing the notice shall
be borne by the applicant. Proof of such mailing shall be provided
to the Building Department prior to the public hearing.
(e)
At the hearing, any party may appear in person
or by agent or by attorney.
(f)
The Zoning Board of Appeals may adjourn the
hearing for a reasonable period in order to cause such further notice
as it deems proper to be served upon such other property owners as
it decides may be interested in the appeal.
(g)
A motion for the Zoning Board of Appeals to
hold a rehearing to review any order, decision or determination of
the board not previously reheard may be made by any member of the
board. A unanimous vote of all members of the Board then present is
required for such rehearing to occur. Such rehearing is subject to
the same notice provisions as an original hearing. Upon such rehearing
the Board may reverse, modify or annul its original order, decision
or determination upon the unanimous vote of all members then present,
provided the Board finds that the rights vested in persons acting
in good faith in reliance upon the reheard order, decision or determination
will not be prejudiced thereby.
(4) Action. The Zoning Board of Appeals may, in conformity
with the provisions of this chapter, reverse, affirm, or modify, wholly
or in part, the order, requirement, decision, interpretation or determination
of the administrative official in accordance with the provisions of
this chapter.
(a)
Any such action shall be decided within 62 days
after the close of the hearing.
(b)
Every motion or resolution of the Board of Appeals
shall require for its adoption the affirmative vote of a majority
of all the members of the Board as fully constituted regardless of
vacancies or absences. Where an action is the subject of a referral
to the County Planning Agency, the voting provisions of § 239-m
of the General Municipal Law shall apply. If the Board of Appeals
acts contrary to the recommendations of the Town Planning Board or
the County Planning Board, it shall give written reasons for such
action.
(c)
If an affirmative vote of a majority of all members of the Board is not attained on a motion or resolution to grant a variance or reverse an order, requirement, decision or determination of the enforcement official within the time allowed by Subsection
F, the appeal is denied. The Board may amend the failed motion or resolution and vote on the amended motion or resolution within the time allowed without being subject to the rehearing process as set forth in Subsection
F(3)(g) above.
(5) Filing. Every order, requirement, decision, interpretation,
or determination of the Zoning Board of Appeals shall be filed in
the office of the Town Clerk within five business days after the decision
is rendered and shall be a public record. A copy thereof shall be
mailed to the appellant within the same five-day period.
G. Court review of Board decisions. Any person or persons
jointly or severally aggrieved by any decision of the Zoning Board
of Appeals may apply to the Supreme Court for review by a proceeding
under Article 78 of the Civil Practice Law and Rules and § 267-c
of the Town Law.
H. Expiration of appeal decision. Unless otherwise specified by the
Zoning Board of Appeals, any variance which is not exercised by application
for a building permit or by otherwise lawfully commencing the use
of the variance within one year of the date of issuance shall automatically
expire.
I. Stay of proceedings. An appeal shall stay all proceedings
in furtherance of the action appealed from unless the Building Inspector
certifies for the Zoning Board of Appeals, after the notice of appeal
has been filed, that such a stay of proceedings would, in the Building
Inspector's opinion, cause imminent peril to life or property by reason
of facts stated in the certificate. In such a case, proceedings shall
not be stayed except by a restraining order granted by the Zoning
Board of Appeals or by the Supreme Court on application, on notice
to the Building Inspector, for due cause shown.