8-24-2020 by L.L. No. 3-2020]
A.
This chapter
shall be enforced by the Zoning Officer, also known as the Director
of Planning and Zoning, who shall be appointed by the Town Board.
No land use and development permit or land use certificate of compliance
may be issued by him/her except where all the provisions of this chapter
have been complied with.
B.
Residency
exemption, authority and supersession. The person holding the office
of Zoning Officer in the Town of Lake George need not be a resident
nor an elector of the Town of Lake George; provided, however, that
such person shall reside in Warren County or an adjoining county within
the State of New York. This subsection is adopted pursuant to Municipal
Home Rule Law, § 10[1][ii][a][1]. This local law shall supersede
Town Law, § 23(1) and Public Officers Law, § 3(1)
in their application to the office of Zoning Officer/Director of Planning
and Zoning for the Town of Lake George. This section shall take effect
on the day of its adoption by the Town Board of Lake George, and shall
be retroactive to the original date of adoption of this chapter.
A.
No person shall undertake any new land use or development, add to,
structurally alter an existing structure or expand an existing use
or demolish an existing structure unless such action is in compliance
with this chapter and until the Zoning Officer has issued a permit.
B.
There shall be submitted with all applications for land use and development
permits three copies of a layout or plot plan drawn to scale showing
the actual dimensions of the lot to be built upon, the exact size
and location on the lot of the building(s) and any accessory building(s)
or sign(s) to be erected and such other information as may be necessary
to determine and provide for the enforcement of this chapter.
C.
One copy of such layout or plot plan shall be returned when approved
by the Zoning Officer, together with such permit upon the payment
of a nonrefundable fee in an amount as set forth from time to time
by resolution of the Town Board.
The Zoning Officer shall issue a land use and development permit
if he determines that:
B.
The land use and development meets the area, bulk and height controls set forth in Article IV and the shoreline restrictions set forth in Article V unless an area variance has been granted pursuant to Article XI, § 175-95C(3), Board of Appeals, or clustering has been approved by the Planning Board.
C.
The land use or development has received site plan approval pursuant to Article VI, if applicable, and all conditions of that approval required to be met prior to granting a permit have been met.
D.
The land use or development is a Class B regional project for which approval was obtained pursuant to Article X and all conditions of that approval required to be met prior to the issuance of a permit have been met.
E.
It is not a Class B regional project and is either a permissible
use, a permissible accessory use or a nonpermissible use for which
a variance has been granted and all conditions of that variance required
to be met prior to the issuance of a permit have been met.
A.
No land shall be hereafter occupied or used and no building or sign
hereafter erected, altered or extended shall be used or changed in
use until a land use certificate of compliance shall have been issued
by the Zoning Officer, stating that the structure or proposed use
thereof complies with the provisions of this chapter. The only exception
to this provision is for projects that do not require County building
permits; in those cases, only a land use and development permit will
be required.
B.
All land use certificates of compliance shall be applied for coincident
with the application for a land use and development permit. Said certificate
shall be issued within 10 days after the erection or alteration shall
have been approved as complying with the provisions of this chapter.
C.
The Zoning Officer shall maintain a record of all certificates, and
copies shall be furnished upon request to any person having a proprietary
or tenancy interest in the building affected.
A land use and development permit issued for a Class B regional
project shall expire within 60 days from the date thereof unless within
such sixty-day period such permit shall have been duly recorded by
the project sponsor in the Adirondack Park Agency Regional project
Permit Book in the office of the clerk of the county wherein the land
use and development is proposed to be located.
If a project for which a land use and development permit has
been issued is not in existence within two years after the issuance
of such permit, said permit shall expire, and the project may not
thereafter be undertaken or continued unless a new permit has been
applied for and issued in the same manner and subject to all provisions
governing the initial application for and issuance of a permit, unless
the terms of the project provide for a longer period of time, in which
case the permit shall expire at the end of that longer period. In
addition, no building or other structure or portion of a structure
shall be left on a lot incomplete or with an unfinished exterior without
the annual renewal of the Warren County building permit.
A.
Creation, appointment and organization.
(1)
A Zoning Board of Appeals (ZBA) is hereby created, consisting of
five members appointed by the Town Board. The Chairperson of the ZBA
shall be designated by the Town Board. The Board of Appeals shall
appoint a Secretary and shall prescribe rules for the conduct of its
affairs. All meetings of the ZBA shall be held at the call of the
Chairperson and at such other times as the Board of Appeals may determine.
Such Chairperson, or in his or her absence the Acting Chairperson,
may administer oaths and compel the attendance of witnesses.
(2)
The Town Board shall appoint two alternate members of the Zoning
Board of Appeals (ZBA) to substitute for any regular member in the
event of a conflict of interest or other factor such as illness, vacation
or other absences. The alternate member(s) shall be appointed by resolution
of the Town Board for a term of five year(s). The chairperson of the
ZBA may designate an alternate member to substitute for a regular
member when such regular member is unable to participate in an application
or matter before the ZBA. When so designated, the alternate member
shall possess all of the powers and responsibilities of such regular
member. Such designation shall be entered into the minutes of the
initial ZBA meeting at which the substitution is made. To enhance
review consistency, when an alternate member is designated to substitute
for a regular member on a project review, and said project returns
to the Board for further review at a subsequent meeting or meetings,
said alternate shall again substitute at all such subsequent meetings
(if said alternate member is in attendance) for the regular member
who missed the Board's previous review of the project unless the Chairman
designates otherwise. All provisions relating to ZBA member training
and continuing education, attendance, conflict of interest, compensation,
eligibility, vacancy in office, removal and service on other boards
shall also apply to alternate members.
B.
Jurisdiction and procedures.
(1)
Jurisdiction. The jurisdiction of the Board of Appeals 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 Officer. The concurring vote of a majority of the
members of the Board of Appeals shall be necessary to reverse any
order, requirement, decision or determination of the Zoning Officer
or to grant a use variance or area variance (which would also include
a "volume" variance) and any other relief from the Zoning Ordinance.
Such appeal may be taken by any person aggrieved or by an officer,
department, board or bureau of the Town. All area and use variance
application forms and fee must be submitted to the Planning and Zoning
Office no later than the 15th day of the month preceding the month
of a regular meeting of the Planning Board at which the applicant
wants the application to be first considered by the Board. If the
15th of the month falls on a Saturday, then the submittal date is
the Friday before. If the 15th of the month falls on a Sunday, then
the submittal date is the Monday after.
(2)
Time of appeal. Such appeal shall be taken within 60 days after the
filing of any order, requirement, decision, interpretation or determination
of the Zoning Officer by filing with the Zoning Officer and with the
Board of Appeals a notice of appeal. The notice of appeal shall specify
the grounds of the appeal and the relief sought. Upon receipt of the
notice of appeal, the Zoning Officer shall transmit to the Board of
Appeals all the papers constituting the record upon which the action
appealed from was taken. The cost of sending or publishing any notices
relating to such appeal shall be borne by the appealing party and
shall be paid to the Board of Appeals prior to the hearing of such
appeal.
(3)
Stay upon appeal. An appeal shall stay all proceedings in furtherance
of the action appealed from, unless the Zoning Officer certifies to
the Board of Appeals, after the notice of appeal has been filed with
the Zoning Officer, that by reason of facts stated in the certificate,
a stay would in his or her opinion cause imminent peril to life or
property. If the Zoning Officer so certifies, the proceedings shall
not be stayed except by a restraining order which may be granted by
the Board of Appeals or by a court of record on application on notice
to the Zoning Officer from whom the appeal is taken and on due cause
shown.
(4)
Hearing on appeal. The Board of Appeals shall fix a reasonable time
for the hearing of the appeal or other matter referred to it. The
Board of Appeals shall give public notice of the hearing by publication
in a paper of general circulation in the Town of notice of such hearing
at least five days prior to the date thereof and the cost of sending
or publishing any public notices related to the project shall be borne
by the applicant.
(5)
Time of decision. The Board of Appeals shall decide upon the appeal
within 62 days after the conduct of the hearing. The time within which
the Board of Appeals must render its decision may be extended by mutual
consent of the applicant and the Board of Appeals.
(6)
Filing of decision and notice. The decision of the Board of Appeals
on the appeal shall be filed in the office of the Town Clerk within
five business days after the day such decision is rendered and a copy
mailed to the applicant.
(7)
Notice to Park Commission or County Planning Agency. At least five
days before a hearing, the Board of Appeals shall mail notices of
the hearing to the parties, the Lake George Park Commission, and County
Planning Agency, as required by § 239-m of the General Municipal
Law. The notice shall be accompanied by a full statement of the matter
under consideration, as defined in § 239-m, Subdivision
1, of the General Municipal Law.
(8)
Notice to Adirondack Park Agency. In the case of any variance application
involving land, buildings, structures or uses in any land use area
[as defined in the Adirondack Park Agency Act (the "Act")] except
hamlet as set forth in the Act, the Board of Appeals shall submit
a copy of the application to the Adirondack Park Agency (Agency),
together with such pertinent information as the Agency reasonably
shall deem necessary. The Agency shall be a full party in interest,
with standing to participate in any and all proceedings concerning
such variance applications. The Board of Appeals shall notify the
Agency of its decision concerning any such variance. Any such variance
granted or granted with conditions shall not be effective until 30
days after such notice to the Agency or until the Agency notifies
the Board of Appeals that it will not reverse the variance, whichever
is sooner. If, within such thirty-day period, the Agency determines
that such variance involves the provisions of the 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
for granting a variance, the Agency may reverse the local determination
to grant the variance.
(9)
Expiration. Unless otherwise specified or extended by the Board of
Appeals, all variance approvals shall expire two years from the date
of approval, if the approved action has not commenced.
(10)
Site plan review approval. All successful use variance applications
must apply for and receive approval from the Planning Board under
site plan review.
(11)
Rehearing.
(a)
Upon motion initiated by any member and adopted by not less
than a majority of all the members of the Board of Appeals, the Board
of Appeals shall review, at a rehearing held upon notice given as
upon an original hearing, any order, requirement, decision, interpretation
or determination of the Board of Appeals. Upon such rehearing, the
Board of Appeals, upon the vote of not less than a majority of all
of the members of the Board of Appeals, may reverse, modify or annul
its original order, requirement, decision, interpretation or determination,
as long as it does not appear that the rights vested prior to such
action in persons acting in good faith and reliance upon the original
order, requirement, decision, interpretation or determination will
not be prejudiced.
(b)
After a rehearing as described in Subsection B(11)(a) above, the Board of Appeals shall not rehear for a second time or accept a new application for an appeal, if the subject of the rehearing or new application is the same as or substantially similar to the original application, until one year has passed from the date of the Board of Appeal's determination on the original application for an appeal or date of determination on the rehearing, whichever is later.
C.
Action by Board of Appeals.
(1)
Interpretations, requirements, decisions and determinations. The
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 Zoning Officer and to that end shall have all the powers
of the Zoning Officer from whose order, requirement or decision the
appeal is taken.
(2)
Use variances.
(a)
The Board of Appeals, on appeal from the decision or determination
of the Zoning Officer, shall have the power to grant use variances,
authorizing a use of the land which otherwise would not be allowed
or would be prohibited by the terms of this chapter.
(b)
No 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:
[1]
Under applicable zoning regulations, the applicant cannot realize
a reasonable return, provided that the lack of return is substantial
as demonstrated by competent financial evidence.
[2]
The alleged hardship relating to the property in question is
unique and does not apply to a substantial portion of the district
or neighborhood.
[3]
The requested use variance, if granted, will not alter the essential
character of the neighborhood.
[4]
The alleged hardship has not been self-created.
(c)
The Board of Appeals, in the granting of use variances, 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.
(3)
Area variances.
(a)
The Board of Appeals shall have the power, upon an appeal from
a decision or determination of the Zoning Officer, to grant area variances
from the area or dimensional requirements of this chapter.
(b)
In making its determination, the 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 of Appeals shall also consider:
[1]
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.
[2]
Whether the benefit sought by the applicant can be achieved
by some method, feasible for the applicant to pursue, other than an
area variance.
[3]
Whether the requested area variance is substantial.
[4]
Whether the proposed variance will have an adverse effect or
impact on the physical or environmental conditions in the neighborhood
or district.
[5]
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.
(c)
The Board of Appeals, in the granting of area variances, 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.
(4)
Imposition of conditions. The Board of Appeals shall, in the granting
of both use variances and area variances, have the authority to impose
such reasonable conditions and restrictions as are directly related
to and incidental to the proposed use of the property or the period
of time such variance shall be in effect. 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 such variance
may have on the neighborhood or community.
D.
Special consulting fees.
(1)
The Board of Appeals, in its review of use and area variance applications,
may employ consultants, legal counsel, professional engineers and/or
inspection services to provide assistance and advice in the review
of any application, including on-site investigation, evaluation and
inspection; verification of the accuracy of information submitted;
evaluation of the adequacy of plans and the sufficiency of submitted
reports; study of the impact of proposals upon the resources and environment
of the Town; preparation and/or review of environmental impact statements;
review of the design and layout of improvements; inspection of installed
improvements; and such other services or technical assistance as the
Board of Appeals deems necessary for its review of the application.
(2)
All costs incurred for these special consulting services shall be
borne by the applicant. Fees for the preparation or review of environmental
impact statements shall be as determined by 6 NYCRR Part 617, adopted
pursuant to Article 8 of the Environmental Conservation Law.
(3)
After the Board of Appeals has rendered its decision on an application,
the balance of the special services shall be paid to the Town within
30 days of receipt of invoice.
(4)
Payment to cover incurred costs in full shall be a condition to final
approval of any application by the Planning Board, if special consulting
services are required. No permit approval shall be signed, stamped,
sent or otherwise valid until and unless such amount is paid.
The Town Board shall appoint two alternate members of the Planning
Board to substitute for any regular member in the event of a conflict
of interest or other factor such as illness, vacation or other absences.
The alternate member(s) shall be appointed by resolution of the Town
Board for a term of five years. The Chairperson of the Planning Board
may designate an alternate member to substitute for a regular member
when such regular member is unable to participate in an application
or matter before the Board. When so designated, the alternate member
shall possess all of the powers and responsibilities of such regular
member. Such designation shall be entered into the minutes of the
initial Planning Board meeting at which the substitution is made.
To enhance review consistency, when an alternate member is designated
to substitute for a regular member on a project review, and said project
returns to the Board for further review at a subsequent meeting or
meetings, said alternate shall again substitute at all such subsequent
meetings (if said alternate member is in attendance) for the regular
member who missed the Board's previous review or the project, unless
the Chairman designates otherwise. All provisions relating to Planning
Board member training and continuing education, attendance, conflict
of interest, compensation, eligibility, vacancy in office, removal
and service on other boards shall also apply to alternate members.
A.
Penalties and notice.
(1)
Any person or other legal entity, including private contractors,
who fails to comply with or who violates this chapter or who shall
refuse a reasonable request to inspect any premises or who shall have
aided or abetted the commission of any such violation shall each be
guilty of a separate offense and, upon the conviction thereof, shall
be liable to a fine of not more than $750 or to imprisonment for not
more than six months, or both. Upon conviction of a second offense,
both of which were committed within a period of five years, said person
or other legal entity shall be liable for a fine not less than $750
nor more than $1,500 or imprisonment for a period not to exceed six
months, or both. Upon conviction for a third or subsequent offense,
all of which were committed within a period of five years, said person
or other legal entity shall be liable for a fine not less than $1,500
nor more than $2,000 or imprisonment for a period not to exceed six
months, or both. Each week's continued violation of the offense shall
constitute a separate offense. Additionally, contractors who amass
three or more violations or convictions of such violations within
a period of three years are eligible to have their business licenses
revoked by the Town Board at the request of the Zoning Officer, and
upon revocation of said valid business license, shall no longer be
allowed to provide contractual services within the Town.
[Amended 3-27-2023 by L.L. No. 1-2023]
(2)
Notice of the offense may be served personally on the offender and
owner; or by mailing a copy thereof to the last-known address of the
offender and of the owner and by posting a copy thereof at the premises
where the violation occurs. Such notice shall state when, not less
than 20 days after such service, the condition or thing which constitutes
the violation shall be corrected or removed. Notwithstanding the foregoing,
if the violation involves a use requiring approval when such approval
has not been obtained, such notice may state that the use shall cease
immediately. Proof of any personal service or of such mailing and
posting, as described above, shall be sufficient proof of such service.
(3)
Violation of conditions of approval. In the event that an entity
which has previously received conditional approval from the Planning
Board or Zoning Board of Appeals to conduct a use or activity, is
doing so in violation of one or more of the conditions of approval,
then the Zoning Enforcement Officer is expressly authorized to issue
an order requiring immediate compliance and/or termination of the
violating use or activity, along with payment of a fine up to $500.
This order may also specify that, in the event of failure to immediately
comply, Town Counsel may be authorized to commence legal action against
the violator in which the Town will seek compliance, penalties, and
payments of its attorney's fees.
B.
Any person may file a complaint of a violation of this chapter in writing with the Zoning Officer, who shall properly record such complaint and immediately investigate and report thereon to the Town Board. The Zoning Officer may also proceed as set forth in Subsection C below.
C.
The Zoning Officer, upon receipt of a complaint as set forth above,
or upon the Zoning Officer's own initiative, may commence criminal
proceedings in the local criminal court by issuing an appearance ticket
to an offender and/or filing any information with the local criminal
court pursuant to the New York Criminal Procedure Law.
D.
Alternate remedies. In case of any violation or threatened violation
of any of the provisions of this chapter or conditions imposed by
a land use and development permit, in addition to other remedies herein
provided, the Town may institute any appropriate action or proceeding
to prevent such unlawful erection, structural alteration, reconstruction,
moving and/or use, to restrain, correct or abate such violation, to
prevent the occupancy of such building, structure or land or to prevent
any illegal act, conduct, business or use in or about such premises.
Further, no application shall be accepted for which there is an outstanding
violation until and unless the violator has remedied the violation
through removal, termination and/or payment of an appropriate fine
as determined by the Town Board or Court.
E.
Stop-work orders.
(1)
The Town Board for the Town of Lake George herein grants the Zoning
Administrator responsibility of immediately terminating any actions
which are in violation of this chapter by posting a stop-work order
on the premises wherein the violation has occurred.
(2)
The stop-work order shall serve notice to the owner, builder, developer,
agent and/or any other individual or business on the premises that
all such actions specified on the stop-work order must be terminated
immediately.
(3)
Relief from the stop-work order can be realized as follows:
(a)
If all provisions of this chapter, together with other conditions
specified by the Zoning Administrator, are met, then the Town Board
may authorize the termination of the stop-work order. Additionally,
based on the egregiousness of the actions that caused the stop work
order, and said actions' impact on the environment, the landscape
or health, safety and welfare of the community, the Town Board may
impose a civil penalty in the form of a consent agreement while lifting
the stop-work order for any amount between $500 and $15,000, to be
suggested by the Zoning Administrator, and set by the Town Board,
and agreed upon by the violator.
[Amended 3-27-2023 by L.L. No. 1-2023]
(b)
Except for cases involving site plan review, if a variance is
granted by the Zoning Board of Appeals permitting the violations specified
on the stop-work order to continue henceforth as allowable, said administrative
decision shall also specify the conditions for the termination of
the stop-work order.
F.
Misrepresentation. Any permit or approval granted under this chapter
which is based upon or is granted in reliance upon any material misrepresentation,
or failure to make a material fact or circumstance known, by or on
behalf of an applicant shall be void. This section shall not be construed
to affect the remedies available to the Town elsewhere in this article.
G.
Complaints. Whenever a violation of this chapter occurs, any person
may file a complaint in regard thereto. All such complaints shall
be filed with the Zoning Administrator, who may require such complaint
to be in writing. The Zoning Administrator shall have the complaint
properly investigated and report thereon to the governing body.
