A.
The purpose of this article is to provide for appeals
from requirements, determinations, decisions, interpretations or orders
of the Zoning Administrator. Such appeals may request an interpretation
of, or variances from, provisions or requirements of this chapter
pursuant to this article.
B.
Pursuant to § 179-9-070J of this chapter regarding site plan approval and Chapter A183, Subdivision of Land, an application may be made for an area variance regarding a site plan or subdivision application without a decision or determination having been made by the Zoning Administrator.
A.
Appeals from requirements, determinations, decisions,
interpretations and orders of Zoning Administrator. The Zoning Board
of Appeals is vested with the authority to interpret the provisions
of this chapter on an appeal from a written decision, determination,
order, requirement or interpretation made by the Zoning Administrator.
As such, the Zoning Board of Appeals may reverse or affirm, wholly
or partly, or may modify the written decision, determination, order,
requirement or interpretation appealed from, and shall make such written
decision, determination, order, requirement or interpretation as in
its opinion ought to have been made in the matter by the Zoning Administrator.
In so doing, the Zoning Board of Appeals shall have all the powers
of the Zoning Administrator from whose written decision, determination,
order, requirement or interpretation the appeal is taken.
B.
Authorization for Zoning Board of Appeals to grant variances. In accordance with § 267-b of the Town Law of the State of New York, the Zoning Board of Appeals shall have the power, upon appeal from a written decision, determination, order, requirement or interpretation by the Zoning Administrator or by referral from the Planning Board pursuant to § 179-9-070J of this chapter regarding site plan approval and subdivision under Chapter A183 and after public hearing, to vary or modify the application of any of the provisions of this chapter relating to the construction, alteration or use of structures or the use of land, so that the intent and terms of this chapter are observed, public safety and welfare secured, and substantial justice done. Notice of the time and place of the public hearing shall be posted at the Town Hall and published at least 10 days in advance of such hearing in the official newspaper. The specific standards for the grant of use and area variances are set forth below. Use and area variances are defined in Article 2 of this chapter.
An appeal for an interpretation and/or variance may be instituted by filing an application with the Zoning Board of Appeals, using forms supplied by the Board, which shall include all information reasonably considered by the Board to be necessary to make its decision and findings under § 179-14-080 below, and include a legal description of the property, a map showing the property and all properties within a radius of 500 feet of the exterior boundaries thereof, plans and elevations necessary to show the proposed variance and other drawings or information reasonably considered necessary by the Zoning Board of Appeals to an understanding of the appeal and its relationship to surrounding properties.
A.
Meetings, minutes, records. Meetings of the Zoning Board of Appeals shall be open to the public as required in Article 7 of the Public Officers Law of the State of New York. The Zoning Board of Appeals shall keep minutes of its proceedings, showing the vote of each member upon every question, or if absent or failing to vote, indicating such fact, and shall also keep records of its examinations and other official actions.
B.
Filing requirements. Every rule, regulation, every
amendment or repeal thereof, and every order, requirement, decision
or determination of the Zoning Board of Appeals shall be filed in
the Town Clerk's office as the case may be, within five business days,
and shall be a public record.
C.
Hearing appeals. Except for applications for area
variances arising from a pending or proposed site plan or subdivision
application, the Zoning Board of Appeals' jurisdiction shall be appellate
only and shall be limited to hearing and deciding appeals from and
reviewing any order, requirement, decision, interpretation, or determination
made by the Zoning Administrator. The concurring vote of a majority
of the members of the Zoning Board of Appeals shall be necessary to
reverse any order, requirement, decision or determination of the Zoning
Administrator or to grant a use variance or area variance. Such appeal
may be taken by any person aggrieved or by an officer, department,
board or bureau of the Town.
D.
Time of appeal. Such appeal shall be taken within 60 days after the filing in the Town Clerk's office of any order, requirement, decision, interpretation or determination of the Zoning Administrator. The appeal shall be taken by filing with the Zoning Administrator and with the Town Clerk a notice of appeal, specifying the grounds thereof and the relief sought pursuant to § 179-14-030. The Zoning Administrator shall forthwith transmit to the Zoning Board of Appeals all the papers constituting the record upon which the action appealed from was taken. The Zoning Board of Appeals, at its discretion, may request the Planning Board to make a recommendation on such matter and such recommendation shall become part of the record, but shall not be binding upon the Zoning Board of Appeals.
E.
Stay upon appeal. An appeal shall stop all proceedings
relating to the action appealed from, unless the Zoning Administrator
certifies to the Zoning Board of Appeals that by reason of facts stated
in the certificate a stay would, in his or her opinion, cause imminent
peril to life or property. In that case, proceedings shall not be
stayed other than by a restraining order which may be granted by the
Zoning Board of Appeals or by a court of competent jurisdiction. The
application for a stay shall be on notice to the Zoning Administrator
and with due cause shown.
F.
Hearing on appeal. The Zoning Board of Appeals shall
schedule and hold a public hearing on the appeal or other matter referred
to it within 62 days of the date that the application for the appeal
is considered complete and give public notice of such hearing by publication
in a paper of general circulation in the Town at least 10 days prior
to the date thereof. The application for the appeal is considered
to be complete once the Zoning Board of Appeals determines that the
applicant has submitted all information required to make a decision
on the appeal. The cost of sending or publishing any notices relating
to such appeal, or a reasonable fee relating thereto, shall be borne
by the appealing party and shall be paid to the Board prior to the
hearing of such appeal. At the hearing, any party may appear in person,
or by agent or attorney. The time within which the Zoning Board of
Appeals must hold a public hearing may be extended by mutual consent
of the applicant and the Board.
G.
Time of decision. The Zoning Board of Appeals shall
decide the appeal within 62 days after the close of said hearing.
The time within which the Zoning Board of Appeals must render its
decision may be extended by mutual consent of the applicant and the
Board.
H.
Filing of decision and notice. The decision or draft minutes of the Zoning Board of Appeals on the appeal shall be filed in the office of Town Clerk and Zoning Administrator within five business days after the day such decision is rendered, and a copy thereof shall be mailed to the applicant, and to the APA and/or the County Planning Board if applicable pursuant to Subsection I below. The minutes, as approved by the Zoning Board of Appeals, shall be filed in the Town Clerk's office within 10 business days of the meeting at which the minutes were approved.
I.
Notice to APA and County Planning Board. At least
10 days before such hearing, the Zoning Board of Appeals shall mail
notices thereof to the parties; to the Adirondack Park Agency if the
appeal concerns a variance involving property located in the Adirondack
Park; and to the Warren County Department of Planning, as required
by § 239-m of the General Municipal Law, which notice shall
be accompanied by a full statement of such proposed action, as defined
in Subdivision 1 of § 239-m of the General Municipal Law.
In the case of a hearing held on an application on a property that
is located within 500 feet of an adjacent municipality, the Zoning
Board of Appeals must give notice of the hearing to the Clerk of the
adjacent municipality, by either mail or electronic transmission,
at least 10 days prior to the hearing.
J.
Compliance with SEQRA. The Zoning Board of Appeals
shall comply with the provisions of the SEQRA. The following actions
of the Zoning Board of Appeals do not require review under SEQRA:
Granting of individual setback and lot line variances; granting of
an area variance(s) for a single-family and a two-family dwelling;
and appeals involving only interpretations of this chapter and not
variances other than those are variances previously mentioned.
K.
Rehearing. 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.
The Zoning Board of Appeals shall, in granting
any variances, impose such reasonable conditions and restrictions
as are 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 avoiding or
minimizing any adverse impact the variance may have on the neighborhood
or community.
A.
The Zoning Board of Appeals may utilize such clerical
or other staff or legal counsel as may be necessary,
B.
The Zoning Board of Appeals may promulgate written
rules of procedure, bylaws, and forms in order to fulfill its responsibilities
under this chapter.
C.
All meetings of the Zoning Board of Appeals shall
be held at the call of the Chairperson and at such other times as
the Board may determine. The Chairperson, or in his or her absence
the Acting Chairperson, may administer oaths and compel the attendance
of witnesses. All meetings of the Zoning Board of Appeals are subject
to the New York State Open Meetings Law.[1] The concurring vote of a majority of all members shall
be necessary to take action on any matter before it.
D.
The Zoning Board of Appeals shall keep minutes of
its proceedings, showing the vote of each member on every decision.
If a member is absent or fails to vote, the minutes shall so indicate.
Every rule and regulation, every amendment or repeal thereof, and
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 and shall be a public record.
A.
The grant of a variance shall serve as authorization
for the Zoning Administrator to issue a building and/or zoning permit,
provided that the project otherwise complies with all applicable provisions
of this chapter and other applicable regulations.
B.
Appeals from a Zoning Board of Appeals decision may
be taken as allowed by Town Law § 267-c.
C.
The Adirondack Park Agency shall be considered a party
to variance applications involving property in the Adirondack Park
and shall receive such notice and have such rights of review as are
provided in the Executive Law of the State of New York and the applicable
APA rules and regulations.
D.
For decisions involving lands within the Adirondack
Park, the Board shall notify the Adirondack Park Agency, by certified
mail, of such decision. Any variance granted or granted with conditions
shall not be effective until 30 days after such notice to the Agency.
If, within such thirty-day period, the Agency determines that such
variance involves the provisions of the Adirondack Park Land Use and
Development Plan as approved in the local land use program, including
any shoreline restriction, and was not based upon the appropriate
statutory basis of practical difficulties or unnecessary hardships,
the Agency may reverse the local determination to grant the variance.
A.
Area variance.
(1)
In making its determination whether to grant
an area variance, 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 by such grant. In making such 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 consideration shall be relevant to the decision of the Board
of Appeals, but shall not necessarily preclude the granting of the
area variance.
(2)
The Board of Appeals, in granting any area variance,
shall grant the minimum variance that it shall deem necessary, and
at the same time preserve and protect the character of the neighborhood
and the health, safety and welfare of the community.
B.
Use variance.
(1)
No such use variance shall be granted by the
Board of Appeals without a showing by the applicant that applicable
zoning regulations and restrictions have caused unnecessary hardship.
In order to prove such unnecessary hardship, the applicant shall demonstrate
to the Board of Appeals that for each and every permitted use under
the zoning regulations for the particular district where the 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.
(2)
The Zoning Board of Appeals, in granting any
use variance, shall grant the minimum variance that it shall deem
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.
D.
Final approved plans. Final approved plans in compliance
with the Zoning Board of Appeals' approval must be submitted to the
Zoning Administrator prior to any application for final Planning Board
approval or building permits.
Unless otherwise specified or extended by the
Zoning Board of Appeals, decision on any request for a variance shall
expire if the applicant or landowner fails to undertake the proposed
action or project pursuant to the terms of the variance within one
year from the filing date of such decision thereof.
