A Board of Appeals is hereby established. It
shall consist of five members. The term of office of the members of
the Board of Appeals and the manner of their appointment shall be
in accordance with the provisions of the Town Law. Vacancies occurring
in said Board shall be filled for such unexpired period only.
The Board of Appeals shall have the duties,
rights, powers and functions conferred upon it by § 267
of Article 16 of the Town Law and any other provisions of law or ordinance
applicable thereto, including the following.
All meetings of the Board of Appeals shall be
held at the call of the Chairman and at such other times as such Board
may determine. Such Chairman, or in his absence the Acting Chairman,
may administer oaths and compel the attendance of witnesses. All meetings
of the Board shall be open to the public. Such Board 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.
All decisions of the Board shall be in writing, and a copy of each decision shall be sent to the applicant and to the Enforcement Officer. 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 Board and Town Clerk and shall be a public record. Each decision shall set forth fully the reasons for the decision of the Board and the findings of fact on which the decision was based. Such findings and reasons shall include references to the standards of § 139-96 where the appeal is for a variance or a special permit.
A.Â
The Board of Appeals shall hear and decide appeals
from and review any order, requirement, decision or determination
made by the Enforcement Officer. It shall also hear and decide all
matters referred to it upon which it is required to pass under this
chapter. The concurring vote of a majority of the Board of Appeals
shall be necessary to reverse any order, requirement, decision or
determination of the Enforcement Officer or to decide in favor of
the applicant any matter upon which it is required to pass under this
chapter or to effect any variation in this chapter. Such appeal may
be taken by any person aggrieved or by any officer, department, board,
or bureau of the Town.
B.Â
Such appeal shall be taken within 30 days or such
additional time as shall be prescribed by the Board of Appeals by
general rule, by filing with the Enforcement Officer and with the
Board of Appeals a notice of appeal specifying the grounds thereof.
The Enforcement Officer shall forthwith transmit to the Board all
of the papers constituting the record upon which the action appealed
from was taken.
An appeal stays all proceedings in furtherance
of the action appealed from unless the Enforcement Officer from whom
the appeal is taken certifies to the Board of Appeals, after the notice
of appeal shall have been filed with him, that by reason of acts stated
in the certificate a stay would in his opinion cause imminent peril
to life or property, in which case proceedings shall not be stayed
otherwise than 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 officer from whom the appeal is taken and on due cause shown.
The Board of Appeals shall have the following
powers and duties prescribed by statute and by this chapter:
A.Â
Interpretation. On appeal from a determination of
the Enforcement Officer, to hear and decide on questions where it
is alleged there is an error in any order, requirements, decision,
or determination made by the Enforcement Officer involving the interpretation
of any provision of this chapter.
B.Â
Variances. On an appeal from a determination of the
Zoning Enforcement Officer and in conformity with law, to vary the
requirements as they apply to a particular lot where the property
owner can show that his property was acquired in good faith and where
the strict application of this chapter would result in practical difficulty
(area variance) or unnecessary hardship (use variance). No application
for a variance shall be acted on until the required public hearing
has been held. The Board of Appeals shall prescribe appropriate conditions
and safeguards to carry out the requirements of this subsection and
shall not grant any variance unless it shall make a finding of fact
based upon the evidence as presented to it in each specific case as
specified below:
(1)Â
Area variance. This is a variance involving dimensional
deviations from the standards set forth in this chapter. Because of
exceptional narrowness, shallowness, shape or area of the specific
parcel or because of extraordinary topographic conditions or other
physical conditions or location of the specific parcel, the strict
application of the provisions of this chapter actually prohibit or
unreasonably restrict the use of the land or building for which such
variance is sought, and the granting of the variance is necessary
for the reasonable use of such property and the variance granted by
the Board is the minimum variance that will provide for the reasonable
use of the property. Practical difficulty is the test for an area
variance. The Board shall address each of the following criteria in
making a determination for an area variance:
(a)Â
How substantial the variance is in relation
to the zoning requirement.
(b)Â
The effect of the increased population density
or land use intensity on available government facilities. This could
include fire and police protection, schools and utilities.
(c)Â
Whether a substantial change will be produced
in the character of the neighborhood, or whether a substantial detriment
to adjoining properties will be created.
(d)Â
Whether the difficulty can be eliminated by
some method other than a variance which is feasible for the applicant
to pursue. In the case of side yard variances in particular, it is
frequently feasible, proper, and possible for the applicant to alter
the plot plan to locate a proposed structure or addition in a new
location which does not require any variance.
(e)Â
Whether, in view of the manner in which the
difficulty arose and in consideration of the above factors, the interests
of justice will be served by allowing the variance.
(2)Â
Use variance. This is a variance which permits a use
of land which is prohibited by this chapter. The granting of a use
variance will alleviate a clearly demonstrable hardship as distinguished
from a special privilege or convenience sought by the owner, which
conditions are peculiar to such land or building and do not apply
generally to land or buildings in the vicinity or neighborhood and
have not resulted from any act of the applicant subsequent to the
adoption of this chapter. Unnecessary hardship is the test for a use
variance. The Board shall address each of the following criteria in
making a determination for a use variance:
(a)Â
The land in question cannot yield a reasonable
return if used only for a purpose allowed in that zone.
(b)Â
The use to be authorized by the variance will
not alter the essential character of the locality.
(c)Â
The use to be authorized by the variance is
granted in accordance with the Town Law of New York State § 267-b(2)
and any future amendments thereto.
(3)Â
In any case, the granting of the variance will be
in harmony with the intent, spirit and purpose of this chapter and
will not otherwise be injurious to the neighborhood.
C.Â
Special permit uses.
(1)Â
On application, supplementing an application to the
Enforcement Officer for a zoning permit or certificate of occupancy,
the Board of Appeals may grant a permit for any use for which approval
of the Board is required under this chapter. In granting such permit,
the Board may specify appropriate conditions in harmony with the following
standards:
(a)Â
The use shall be of such location, size and
character that it will be in harmony with the appropriate and orderly
development of the district in which it is situated and will not be
detrimental to the orderly development of adjacent districts.
(b)Â
The location and size of the use, the nature
and intensity of the operations involved in or conducted in connection
therewith, its site layout and its relation to streets giving access
to it shall be such that traffic to and from the use and the assembly
of persons in connection with it will not be hazardous or inconvenient
to the neighborhood or conflict with the normal traffic of the neighborhood.
In applying this standard, the Board shall consider, among other things,
convenient routes of pedestrian traffic, particularly of children,
relation to main traffic thoroughfares and to street and road intersections
and the general character and intensity of development of the neighborhood.
(c)Â
The location and height of buildings, the location,
nature and height of walls and fences and the nature and extent of
landscaping on the site shall be such that the use will not hinder
or discourage the proper development and use of adjacent land and/or
buildings or impair the value thereof.
(2)Â
The Board of Appeals shall conduct a public hearing
to consider issuance of any special permit and, in addition, to publishing
a notice of the hearing in the Town newspaper at least 10 days prior
to the hearing, the Board of Appeals shall, in addition, mail written
notice of such public hearing by regular mail to all owners of property
contiguous to the parcel where the proposed special use is to be conducted
using the current address and property ownership information for contiguous
parcels as reflected in the Town Assessor's records, and such regular
mail notice is to be mailed at least 10 days prior to the hearing.
The Board of Appeals shall fix a reasonable
time for the hearing of the appeal and give due notice thereof to
the parties and by publication at least once in the official newspaper
seven days before the date of the hearing and shall decide the same
within a reasonable time. The petitioner and/or his duly authorized
representative shall be present for the hearing. The Board of Appeals
may reverse or affirm, wholly or partly, or may modify the order,
requirement, decision or determination as in its opinion ought to
be made in the premises, and to that end shall have all the powers
of the officer from whom the appeal is taken.
