The Board of Appeals shall have all the powers
and duties prescribed by law and by this chapter, which are more particularly
specified as follows, provided that none of the following provisions
shall be deemed to limit any power of the Board that is conferred
by law:
A.
Interpretation. On appeal from an order, requirement,
decision or determination made by an administrative official or on
request by an official, board or agency of the town, to decide any
of the following questions:
B.
Variances.
(1)
To authorize, upon appeal in specific cases, such
variance from the terms of this chapter as will not be contrary to
the public interest where, owing to exceptional and extraordinary
circumstances, there are practical difficulties or unnecessary hardships
in the way of carrying out the strict letter of this chapter, subject
to terms and conditions to be fixed by the Board of Appeals; provided,
however, that no such variance shall be granted unless said Board
finds that:
(a)
There are physical conditions, such as in the
case of an exceptionally irregular, narrow, shallow or steep lot,
fully described in the findings of said Board, applying to the land
or building for which the variance is sought, which conditions are
peculiar to such land or building and have not resulted from any act
of the applicant or any prior owner.
(b)
For reasons fully set forth in the findings
of said Board, the aforesaid circumstances or conditions are such
that the strict application of the provisions of this chapter would
deprive the applicant of the reasonable use of such land or building,
and the granting of the variance is necessary for the reasonable use
of the land or building, and the variance as granted by said Board
is the minimum variance that will accomplish this purpose.
(c)
The granting of the variance under such conditions
as said Board may deem necessary or desirable to apply thereto will
be in harmony with the general purpose and intent of this chapter,
will not represent a radical departure therefrom, will not be injurious
to the neighborhood, will not change the character thereof and will
not be otherwise detrimental to the public welfare.
(2)
The needs or desires of a particular owner or tenant
or of a particular prospective owner or tenant shall not, either alone
or in conjunction with other factors, afford any basis for the granting
of a variance. The fact that the improvements already existing at
the time of the application are old, obsolete, outmoded or in disrepair
or the fact that the property is then unimproved shall not be deemed
to make the plight of the property unique or to contribute thereto.
(3)
Where said Board finds the zoning classification of
a particular property to be conducive to the deprivation of the reasonable
use of the land or buildings and where said Board finds the same condition
to apply generally to other lands or buildings in the same neighborhood
or zoning district, said Board shall call this condition to the attention
of the Planning Board and Town Board.
(4)
In all cases where the Board of Appeals grants a variance
from the strict application of the requirements of this chapter, it
shall be the duty of such Board to attach such conditions and safeguards
as may be required in order that the result of its action may be as
nearly as possible in accordance with the spirit and intent of this
chapter.[1]
C.
Approval of home occupation and resident-professional
office uses.
(1)
To authorize, upon application, home occupation and resident professional office uses in accordance with Article IV and § 225-32F, provided that the Board finds that the proposed accessory use of the residential structure will not alter the character of the neighborhood or result in traffic congestion or other hazards and will not create noise, glare or vibration, fumes, odors or electrical interference perceptible to normal senses at the property line.
(2)
The Board will process applications hereunder in the same manner as set forth for special permit approvals by the Town Board, § 225-46, including the findings required therein and the imposition of any conditions necessary to protect residents of nearby properties from hazards to health, safety and general welfare or to preserve the value of such properties.
The powers and duties of the Board of Appeals
shall be exercised in accordance with the following procedure:
A.
Notice of public hearing.
[Amended 7-10-1996 by L.L. No. 6-1996]
(1)
The Board of Appeals shall not decide upon any appeal
for a variance or interpretation of this chapter without first holding
a public hearing, notice of which hearing and of the substance of
the appeal or application shall be given by publication in the official
newspaper of the town at least 10 days before the date of such hearing.
In addition to such published notice, the Board of Appeals shall cause
such notice to be given at least 10 days before the hearing to all
owners of property located within 500 feet of any lot line of the
property for which relief is sought and to such other owners as the
Board of Appeals may deem advisable. Such notice shall be given to
any particular property owner in one of the following manners:
(a)
By registered or certified mail, return receipt
requested, and the Board may inspect such receipts to assure proper
notification; or
(b)
By personal delivery, provided that the person
effectuating such notification shall be required to produce a sworn
affidavit(s) of service attesting to the name and address of the person
so served and the date of such delivery.
(2)
The names of said owners shall be taken as they appear
on the last completed tax roll of the town.
(3)
Provided that due notice shall have been published
and that there shall have been substantial compliance with the remaining
provisions of this section, the failure to give notice in exact conformance
herewith shall not be deemed to invalidate action taken by the Board
of Appeals in connection with the granting of any appeal or variance.
B.
All appeals and applications made to the Board of
Appeals shall be in writing and shall be accompanied by a fee of not
less than the actual and necessary costs of advertising and holding
a public hearing. The basic fee shall be as determined in the Standard
Schedule of Fees of the Town of Eden, as may be adopted from time
to time by resolution of the Town Board. No fees shall be refundable.
C.
Each appeal or application shall fully set forth the
circumstances of the case, shall refer to the specific provision of
the local law involved and shall exactly set forth, as the case may
be, the interpretation that is claimed, the details of the variance
that is applied for and the grounds on which it is claimed that the
same should be granted.
D.
Should any appeal involve either of the two following
conditions, the Secretary of the Board of Appeals shall transmit to
the designated office or official a copy of the official notice of
the public hearing not later than 10 days prior to the date of the
hearing:
(1)
Any change in the boundaries of any district, which
change would occur within a distance of 500 feet of the boundary of
any village or town.
(2)
If the land involved in an appeal lies within 500
feet of any:
(a)
Municipal boundary;
(b)
Existing or proposed county or state park or
other recreation area;
(c)
Right-of-way of any existing or proposed county
or state parkway, thruway, expressway, road or highway;
(d)
Existing or proposed right-of-way of any stream
or drainage channel owned by the county or for which the county has
established channel lines; or
(e)
Existing or proposed boundary of any county-
or state-owned land on which a public building or institution is situated.
E.
Such application, accompanied by the notice of public
hearing, shall be forwarded to the Erie County Planning Department
by the Town Clerk for review in accordance with the provisions of
§§ 239-l and 239-m, Article 12-B, of the General Municipal
Law of the State of New York at least 10 days prior to the public
hearing.
F.
Prior to the date of any public hearing, the Secretary
of the Board of Appeals shall transmit to the Secretary of the Planning
Board a copy of any appeal or application, together with a copy of
the notice of such hearing. The Planning Board may submit to the Board
of Appeals an advisory opinion on said appeal or application at any
time prior to the rendering of a decision by the Board of Appeals.
G.
All the provisions of this chapter relating to the
Board of Appeals shall be strictly construed. Said Board, as a body
of limited jurisdiction, shall act in full conformity with all provisions
of law and of this chapter in compliance with all limitations contained
herein.
H.
Unless construction is commenced and diligently pursued
within 12 months of the date of the granting of the application, the
application shall become null and void.
I.
Every decision of the Board of Appeals shall be recorded in accordance with standard forms adopted by the Board, shall fully set forth the circumstances of the case and shall contain a full record of the findings on which the decision is based. Every decision of said Board shall be by resolution, and each such resolution shall be filed in the office of the Town Clerk by case number under one of the following headings: interpretation or variances, together with all documents pertaining thereto. Regarding its decision in each case, the Board of Appeals shall notify the Town of Eden Building and Zoning Inspector, Town Board, Town Planning Board and any designated official of any affected municipality or agency given notice of hearing as set forth in Subsection D.
J.
When an appeal to the Board of Appeals has been duly
processed and denied upon a vote by at least four members of the Board,
said appeal shall not be eligible for reconsideration or rehearing
for a twelve-month period following such denial, except that an application
based on new facts or new considerations substantially different from
those in the denied application may be eligible for reconsideration
or rehearing within 12 months of the date of the denial of the original
appeal.
