Village of Westfield, NY Zoning Board of Appeals

A Zoning Board of Appeals is hereby created, said Board to consist of five members and no more than two alternate members, appointed for terms of five years. The Chairperson and members of the Zoning Board of Appeals and alternates shall be appointed by resolution of the Village Board, which shall also have the power to remove any member for cause after a public hearing.

[Amended 6-2-2008 by L.L. No. 3-2008]

All meetings of the Zoning Board of Appeals shall be open to the public, and said Board shall keep minutes of its proceedings, showing the vote of each member upon every question. Every rule, regulation, amendment or repeal thereof and every order, requirement, decision or determination of the Board shall immediately be filed in the office of the Village Clerk and shall be a public record.

§ 155-90 Powers and duties.

Appeals. The Zoning Board of Appeals shall hear and decide appeals from and review any order, requirement, decision or determination made by the Zoning Officer. The concurring vote of a majority of the members of the Zoning Board of Appeals shall be necessary to reverse any requirement, decision or determination of the Zoning Officer. Such appeal may be taken by any person aggrieved or by any officer, department, board or bureau of the Village by filing with the Zoning Board of Appeals a notice of appeal, specifying the grounds thereof. The Zoning Officer shall forthwith transmit to the Zoning Board of Appeals all papers constituting the record upon which the action appealed was taken. An appeal stops all proceedings in furtherance of the appeal, unless the Zoning Officer certifies to the Zoning Board of Appeals after the notice stated in the certificate, that a stop would, in his opinion, cause imminent peril to life or property. In this case, proceedings shall not be stopped except by a restraining order which may be granted by the Zoning Board of Appeals or by a court of record. The Zoning Board of Appeals may disapprove, approve or modify the decision of the Zoning Officer.

Standards of review in the evaluation of use and area zoning variances. The Zoning Board of Appeals shall have authority to vary the requirements of this chapter, including effect the preservation agricultural uses, wherever possible, in accordance with § 155-34. The Zoning Board of Appeals shall refer to § 155-36 for a checklist of areas of concern to be evaluated in its review of requests for area or use variances. This checklist is not all-inclusive and does not limit the factors over which development conditions may be imposed. Section 155-34 of this chapter and the checklist of areas of concern to be considered by the Zoning Board of Appeals in its review of requests for use and area zoning variances is intended only to supplement and in no way supersedes, replaces, supplants or modifies the standards and procedures specified for the granting of use and area variances contained in § 7-712 of the New York State Village Law or any other applicable provisions thereof.

Variance application. An application for such variance shall be made to the Zoning Officer for transmittal to the Zoning Board of Appeals, said application to contain the following items:

(1)

The name, address and phone number of the applicant.

(2)

The location and zoning district of the property for which the variance is sought.

(3)

The existing use of said property, including a description of any existing buildings.

(4)

A citation to the provision of this chapter for which the variance is sought.

(5)

A justification of the request for a variance.

Special extension. On direct application, supplementing an application to the Zoning Officer for a building permit or certificate of compliance, the Zoning Board of Appeals may grant a special extension for the expansion or extension of a nonconforming use. Such applications for special extensions shall follow procedures and satisfy the standards for a variance.

In the exercise of its powers and duties, the Zoning Board of Appeals, through its Chairperson or, in his absence, its Acting Chairperson, may compel the attendance of witnesses and may administer oaths prior to taking the testimony of any witness.

In addition to the findings required before the granting or denial of any variance or special use permit under this section, the Zoning Board of Appeals may consider any additional evidence.

The Zoning Board of Appeals, in granting any appeal, variance or special use permit, may attach such conditions to said approval as in its determination are necessary to achieve the intent and purpose of this chapter.

§ 155-91 Interpretation.

The Zoning Board of Appeals shall have the power to interpret the meaning of this chapter whenever called upon by the Village Board, Zoning Officer or an aggrieved party. This shall include the power to reverse any order, requirement, decision or determination of an administrative official or board. This interpretive power shall include the determination of district boundary lines.

§ 155-92 Procedures and referrals.

Applications for actions by the Zoning Board of Appeals shall be made to the Zoning Officer on such forms as he may prescribe. Such applications may be made at any time, except that an application for appeal under § 155-90A shall be made within 30 days of the action being appealed. All applications shall be accompanied by drawings at an appropriate scale, showing the size and placement of the lot, location of proposed buildings, driveways, parking areas, landscaping, screening and proposed drainage and utility systems. The applicant shall prepare all required documents and shall bear all costs of advertising and mailing that are required in connection with the hearings.

The Zoning Officer shall transmit a copy of the application, together with any accompanying documents, to the Zoning Board of Appeals, which shall schedule a hearing thereon. Public notice of such hearing shall be given by publication in the official paper of a notice of such hearing at least 10 days prior to the date thereof, by the Village Clerk. Where any variance, special use permit or site plan application affects any real property lying within 500 feet of the Village boundary or the boundary of any existing or proposed county or state park or other recreation area or any existing or proposed county or state parkway, thruway, expressway, road or highway or of the existing or proposed boundary of any county- or state-owned land on which a public building or institution is situated, the Village Clerk shall notify the Chautauqua County Planning Board of said application and submit copies of the application and any supporting documents thereto. No action shall be taken on any matter referred to the Chautauqua County Planning Board until said Board shall have made a recommendation thereon to the Zoning Board of Appeals or 30 days shall have elapsed since the date of referral. If the County Planning Board disapproves the proposal or recommends modification thereof, the Zoning Board of Appeals shall not act contrary to such disapproval or recommendation, except by a vote of a majority plus one of all members thereof and after the adoption of a resolution fully setting forth the reasons for such contrary action. The Zoning Board of Appeals may at its option refer any application for a variance or special use permit to the Village Planning Board. The Village Planning Board shall, within 30 days, recommend its approval or disapproval. Failure of the Village Planning Board to reply within 30 days after receipt of the application will be construed as the Village Planning Board having no recommendation to submit in regard to the application.

The hearing of an appeal or application shall take place within 60 days of the filing of the appeal or a complete application.

The Zoning Board of Appeals shall reach a decision on any application or appeal within 45 days of the final hearing thereon. Such decisions shall be promptly filed in the Office of the Village Clerk and shall be a public record. Within seven days of such decision, notice thereof shall be transmitted to the Chautauqua County Planning Board whenever such decision relates to an application referred to said County Planning Board.

§ 155-93 Use and area variances.

Reasons for variances. The Zoning Board of Appeals has the authority to vary or modify the strict letter of this chapter where a literal interpretation would cause unnecessary hardship, in the case of a use variance, or where the benefit to the applicant if the variance is granted would outweigh the detriment to the health, safety, and welfare of the neighborhood, in the case of an area variance.

[Amended 8-2-2010 by L.L. No. 4-2010]

Applicability and limitations.

(1)

The Zoning Board of Appeals can decide appeals from a person who feels aggrieved by a decision of the Enforcement Officer.

(2)

The Zoning Board of Appeals may reverse, affirm or modify the decision made by the Municipal Board.

(3)

The Zoning Board of Appeals has absolutely no power to amend this chapter and must exercise great care to ensure that its rulings do not, in effect, amend this chapter.

Basis for granting area variances.

[Amended 8-2-2010 by L.L. No. 4-2010]

(1)

Area variances provide relief of a dimensional nature (e.g., lot shape or grade) and must be based on an analysis of whether the benefit to the applicant would outweigh the detriments to the health, safety, and welfare of the neighborhood. The burden of proof is on the applicant, and, if relief is warranted, it should be the minimum necessary.

(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 by such grant. In making such determination, the Board shall consider whether:

(a)

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)

The benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;

(c)

The requested area variance is substantial;

(d)

The proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and

(e)

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.

Basis for granting use variances.

(1)

Use variances provide relief to an applicant who is denied through application of this chapter by the Municipal Board the right to use land or structures in a certain manner since the use is not listed as an allowable use in this chapter. In order to be granted the use variance the applicant must prove that unnecessary hardship exists and this is accomplished by showing all of the following:

(a)

The land in question cannot yield a reasonable return if used only for a purpose allowed in the district. This does not mean that profits will necessarily be maximized.

(b)

The use requested by the variance will not alter the essential character of the neighborhood and be detrimental to properties in the vicinity.

(c)

The plight of the applicant is due to unique circumstances and not to the general conditions in the neighborhood.

(2)

In the case of a use variance, if the hardship is self-imposed then the variance should, generally speaking, be denied. An example of this would be the purchase of property which is not appropriate for the proposed use.

In granting any variance, the Zoning Board of Appeals shall prescribe any conditions that it deems to be necessary or desirable and are in compliance with the intent of this chapter. The decisions must be written in the form of a resolution and must state in detail the reasons for granting or denying the variance and the conditions imposed.

Temporary variances. The Zoning Board of Appeals may issue, for uses which are of a temporary nature, a variance. Said variance shall clearly state the conditions of the variance to include when it shall terminate, the possibility of renewal and other conditions deemed necessary.

Flood variances.

(1)

Variances shall only be issued upon determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.

(2)

Variances shall only be issued upon:

(a)

A showing of good and sufficient cause;

(b)

A determination that failure to grant the variance would result in exceptional hardship to the applicant; and

(c)

A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety or extraordinary public expense, create nuisances, cause fraud on or victimization of the public as identified in Subsection G(3), which follows, or conflict with existing local laws or ordinances.

(3)

In passing upon such applications, the Zoning Board of Appeals shall consider all technical evaluations, all relevant factors, standards specified in other section of this chapter and:

(a)

The danger that materials may be swept onto other lands to the injury of others.

(b)

The danger of life and property due to flooding or erosion damage.

(c)

The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner.

(d)

The importance of the services provided by the proposed facility to the community.

(e)

The necessity to the facility of a waterfront location, where applicable.

(f)

The availability of alternative locations for the proposed use which are not subject to flooding or erosion damage.

(g)

The compatibility of the proposed use with existing and anticipated development.

(h)

The relationship of the proposed use to the comprehensive plan and floodplain management program of that area.

(i)

The safety of access to the property in times of flood for ordinary and emergency vehicles.

(j)

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.

(k)

The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas electrical and water systems and streets and bridges.

(4)

The Village Clerk shall maintain the records of all appeal actions, including technical information and report any variances to the Federal Insurance Administration upon request.

§ 155-94 Mandatory referral.

Applicability. Before issuing a special use permit or granting a variance affecting any real property lying within a distance of 500 feet of the boundary of this municipality or from the boundary of any existing or proposed county or state park or other recreation area or from the right-of-way of any existing or proposed county or state parkway, thruway, expressway, road or highway, or from the channel owned by the county or for which the county has established channel lines or from the existing or proposed boundary of any county- or state-owned land on which a public building or institution is situated, the matter shall be referred to the Chautauqua County Planning Board.

Response time. Within 30 days after receipt of a full statement of such referred matter, the Chautauqua County Planning Board to which referral is made, or an authorized agent of said agency, shall report its recommendations thereon to the Board of Appeals, accompanied by a full statement of the reasons for such recommendations. If the Chautauqua County Planning Board fails to report within such period of 30 days, the Board of Appeals may act without such report. If the Chautauqua County Planning Board disapproved the proposal or recommends modification thereof, the Board of Appeals shall not act contrary to such disapproval or recommendation except by a vote of a majority plus one of all the members thereof and after the adoption of a resolution fully setting forth the reasons for such contrary action.

Report of action. Within seven days after final action by the Board of Appeals, modifications or disapproval of a referred matter, the Board of Appeals shall file a report of the final action it has taken with the Chautauqua County Planning Board which has made the recommendations, modifications or disapproval.

§ 155-95 Dual hearing for variance and special use permit.

Applicability. Whenever a variance (use or area) is required prior to a special use permit review, the Zoning Board of Appeals shall be the authorized authority for issuing both the variance and special use permits. The Zoning Board of Appeals is only authorized to review special use permits meeting the following criteria: commercial projects involving 5,000 square feet or less of floor space or residential projects involving five or fewer units.

Basis for granting special use permits. When reviewing a special use permit under this section, the Zoning Board of Appeals shall apply all the standards and conditions as set forth in §§ 155-95, 155-100, 155-101 and 155-102.

§ 155-96 Judicial review.

Any person or persons jointly or severally aggrieved by any decision of the Zoning Board of Appeals or any officer, department, board or bureau of the Village after all administrative remedies have been exhausted may apply to the Supreme Court for review by a proceeding under Article 78 of the Civil Practice Law and Rules. Such proceeding shall be instituted within 30 days after filing of a decision in the office of the Village Clerk.

Costs shall not be allowed against the Zoning Board of Appeals unless it shall appear to the Court that it acted with gross negligence or bad faith or with malice in making the decision appealed from.