The provisions of this chapter shall be administered and enforced by the Code Enforcement Officer, 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
47 of the Dover Town Code, or any other applicable local, state, or federal law or regulation.
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 Code Enforcement Officer 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 §
145-10F.
B. The Code Enforcement Officer shall grant or deny the permit as provided in §
145-54 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 Code Enforcement
Officer for a certificate of occupancy (for building permits only).
D. If the Code Enforcement Officer finds that the applicant's action has been taken in accordance with the building permit, the Code Enforcement Officer shall issue a certificate of occupancy as provided in §
145-56, allowing the structure to be occupied.
E. If the Code Enforcement Officer 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 Code Enforcement Officer in accordance with the provisions of Chapter
47 of the Town Code, this chapter, and any other applicable laws and regulations.
A. Temporary certificate of occupancy.
[Amended 10-12-2016 by L.L. No. 1-2016]
(1) A temporary certificate of occupancy may be issued if the building
and structure or a designated portion of a building or structure is
sufficiently complete so that it may be safely put to use for which
it is intended. A temporary certificate of occupancy shall expire
30 days from the date of issuance or at an earlier date if specified
thereon. A temporary certificate of occupancy may, at the discretion
of the code official, be renewed for a maximum of six renewals.
(2) A temporary certificate of occupancy cannot be issued on a parcel
with the following conditions: if a building permit was not issued,
occupancy has changed, and the property is currently under review
by the Planning Board or Zoning Board of Appeals.
(3) A temporary certificate of occupancy may be revoked at any time if
the occupant is utilizing the structure for purposes other than was
initially permitted.
(4) Occupants must demonstrate a hardship to apply for a temporary certificate
of occupancy. Examples include, but are not limited to, weather, labor
disputes and strikes, unavailability of materials and design or architectural
as-built drawing delays.
(5) Fees shall be based on a commercial or residential application:
(a)
A commercial temporary certificate of occupancy will be determined
based upon the work not completed; the percentage of work not completed
will be determined by the code official. Commercial minimum fee will
be $150 plus the fee based upon work not completed. This minimum fee
will be doubled each month that the temporary certificate of occupancy
is issued for a maximum of six months.
(b)
A residential temporary certificate of occupancy fee will be
based upon work not completed; the percentage of work not completed
will be determined by the code official. Residential minimum fee will
be $75 plus the fee based upon work not completed. This minimum fee
will be doubled each month that the temporary certificate of occupancy
is issued for a maximum of six months.
(6) This applicant for a temporary certificate of occupancy shall deposit
with the chief fiscal official a performance bond in sufficient amount
and duration to secure the completion of the site plan as approved.
The amount of the bond shall be determined by the Town Engineer.
B. Issuance of certificate of occupancy.
(1) The Code Enforcement Officer 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 Code Enforcement Officer 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 Code Enforcement
Officer 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 §
145-57.
[Amended 4-3-2002 by L.L. No. 1-2002]
A. Escrow deposits.
(1) In connection with any application for a special permit,
site plan or subdivision approval, zoning amendment, variance, or
other appeal, the reviewing board may require an applicant to deposit
an initial sum of money into an escrow account in advance of the review
of the application. Said sum shall be based on the estimated cost
to the Town of reviewing the particular type of application before
it. The reviewing board may consider the professional review expenses
incurred by neighboring municipalities in reviewing similar applications.
The reviewing board may also consider the Town's survey of professional
review expenses in determining the initial sum of money to be deposited
in an escrow account by an applicant.
(2) Use of funds.
(a)
Said sum of money shall be used to cover the
reasonable and necessary costs of reviewing an application. Costs
may include staff costs or consultant fees for planning, engineering,
legal, and other professional and technical services required for
the proper and thorough review of an application. The reviews governed
by this section shall include all environmental review pursuant to
law including review of the proposed action under the State Environmental
Quality Review Act (SEQR).
(b)
The review expenses provided for herein are
in addition to application or administrative fees required pursuant
to other sections of the Dover Town Code. Monies deposited by applicants
pursuant to this section shall not be used to offset the Town's general
expenses of professional services for the several boards of the Town
or its general administrative expenses.
(c)
Fees charged strictly as a result of a SEQR
review shall in no event exceed the maximum amounts that can be charged
pursuant to the SEQR regulations by the lead agency.
B. Upon receipt of monies requested for an escrow account,
the Town Supervisor shall cause such monies to be placed in a separate
non-interest-bearing account in the name of the Town and shall keep
a separate record of all such monies deposited and the name of the
applicant and project for which such sums were deposited.
C. Upon receipt and approval by the Town Board of itemized
vouchers from consultants for services rendered on behalf of the Town
regarding a particular application, the Town Supervisor shall cause
such vouchers to be paid out of the monies so deposited, and shall
debit the separate record of such account accordingly, The consultant
shall make copies of such vouchers available to the applicant at the
same time the vouchers are submitted to the Town.
D. Review of vouchers; payment.
(1) The Town Board shall review and audit all such vouchers
and shall approve payment of only such consultant charges as are reasonable
in amount and necessarily incurred by the Town in connection with
the review and consideration of applications. A charge or part thereof
is reasonable in amount if it bears a reasonable relationship to the
average charge by consultants to the Town for services performed in
connection with the review of a similar application. In auditing the
vouchers, the Town Board may take into consideration the size, type
and number of buildings to be constructed, the topography of the site
at issue, environmental conditions at such site, the infrastructure
proposed in the application and any special conditions the Town Board
may deem relevant. A charge or part thereof is necessarily incurred
if it was charged by the consultant for a service which was rendered
in order to protect or promote the health, safety or other vital interests
of the residents of the Town, and protect public or private property
from damage.
(2) In no event shall an applicant make direct payment
to any Town consultant.
E. If at any time during the processing of an application
there shall be insufficient monies on hand to the credit of an applicant
to pay the approved vouchers in full, or if it shall reasonably appear
to the reviewing board that such monies will be insufficient to meet
vouchers yet to be submitted, the reviewing board shall cause the
applicant to deposit additional sums as the board deems necessary
or advisable in order to meet such expenses or anticipated expenses.
F. In the event the applicant fails to deposit the requested
review fees into an escrow account, any application review, approval,
permit or certificates of occupancy may be withheld or suspended by
the reviewing board, officer or employee of the Town until such monies
are deposited.
G. Upon completion of the review of an application or
upon the withdrawal of an application, and after all fees already
incurred by the Town have been paid and deducted from the escrow account,
any balance remaining in the escrow account shall be refunded within
sixty days after the applicant's request.
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. 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 Code Enforcement Officer. 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. Appeals for variance.
(1) Where there are practical difficulties or unnecessary
hardships imposed by the strict letter of this chapter, the Zoning
Board of Appeals shall have the power, upon appeal from a determination
by the Code Enforcement Officer 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, so that the spirit of this chapter is observed,
public safety and welfare secured, and substantial justice done.
(2) All applications for variances shall be submitted to the Code Enforcement Officer at least 10 days before the meeting of the Zoning Board of Appeals and shall be accompanied by six copies of a plot plan, 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 §
145-37C.
(3) Any variance which is not exercised by application
for a zoning permit or by otherwise commencing the use within one
year of the date of issuance shall automatically lapse.
C. Use variances.
(1) The Zoning Board of Appeals, on appeal from a decision
or determination of the Code Enforcement Officer, 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.
(a)
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:
[1]
The applicant cannot realize a reasonable return,
provided that 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; and
[4]
The alleged hardship has not been self-created.
(b)
Failure to demonstrate any one of the foregoing {Subsection
C(2)(a)[1] through
[4] above} is sufficient to justify the denial of a use variance.
(3) The Zoning Board of Appeals shall consider any agricultural data statement submitted pursuant to §
145-37C.
(4) 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.
(5) In addition to the grounds for granting a use variance in Subsection
C(2) above, a use variance may also be granted if the applicant can prove, by competent financial evidence, deprivation of all economically beneficial use of the property. In such a case, the Zoning Board of Appeals shall grant only the minimum variance necessary to allow an economically beneficial use.
(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 Code Enforcement
Officer, 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 Code Enforcement
Officer 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 Code Enforcement Officer 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.
G. Hearing and public notice.
(1) If an agricultural data statement has been submitted,
the Secretary of the Zoning Board of Appeals shall, upon receipt of
the variance application, mail written notice of the application to
the owners of land as identified by the appellant in the agricultural
data statement. Such notice shall include a description of the proposed
variance and its location. The cost of mailing the notice shall be
borne by the appellant.
(2) The Zoning Board of Appeals shall set a reasonable
time after receipt of a complete application for the hearing of appeals.
(3) 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.
(4) At least five days prior to the date of the hearing
of appeals, the Zoning Board of Appeals shall give public notice by
causing the publication of a notice of such hearing in the official
newspaper and by mailing a notice thereof to the Planning Board and
to contiguous property owners.
(5) At the hearing, any party may appear in person or
by agent or by attorney.
(6) 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.
H. 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.
(1) Any such action shall be decided within 62 days after
the close of the hearing.
(2) Every decision of the Zoning Board of Appeals shall
be approved by vote of a majority of the members by resolution which
contains a full record of the findings of the Zoning Board of Appeals
in the case. If the Zoning 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.
I. 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.
J. 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.
K. Expiration of appeal decision. Unless otherwise specified
by the Zoning Board of Appeals, a decision on any appeal shall expire
if the appellant fails to obtain any necessary building permit within
12 months of the date of such decision.
L. Stay of proceedings. An appeal shall stay all proceedings
in furtherance of the action appealed from unless the Code Enforcement
Officer certifies for the Zoning Board of Appeals, after the notice
of appeal has been filed, that such a stay of proceedings would, in
the Code Enforcement Officer'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 Code Enforcement Officer, for due cause
shown.