Whenever a violation of this chapter occurs, any person may file a complaint in regard thereto. All such complaints must be in writing and shall be filed with the Code Enforcement Officer, who shall properly record such complaint and investigate the report thereon.
In case any building, facility or structure is erected, constructed, altered, repaired, converted or maintained, or any building, facility or structure or land is used in violation of this chapter or of any law or regulation made under authority conferred hereby, the Code Enforcement Officer or other proper officials, in addition to other remedies, may institute any appropriate action or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use to restrain, correct or abate such violation, to prevent the occupancy of said building, facility, structure or land or to prevent any illegal act, conduct of business or use in or about such premises or facilities.
A.
In addition to the remedies set forth above in § 350-66, when the Code Enforcement Officer has reasonable grounds to believe that work on any building or structure is being performed in violation of the provisions of this chapter he(she) shall deliver to 1) the owner of the property; 2) the person performing the work on the property; or 3) an agent of the owner of the property from whom the said owner can reasonably be expected to receive notice, a stop-work order.
B.
The Code Enforcement Officer shall also post a copy of such stop-work order in a conspicuous location at the site of the work being performed. Such copy of the stop-work order shall not be removed until the stop-work order is rescinded by the Code Enforcement Officer or a court of competent jurisdiction. Any individual removing the posted stop-work order prior to its rescission shall be guilty of the violation of this chapter.
C.
Upon service of the stop-work order and/or the posting a copy of the stop-work order at the work site, all further work on the subject building, structure or facility shall be stopped and suspended until the stop-work order has been rescinded by the Code Enforcement Officer or a court of competent jurisdiction. The stop-work order shall not be rescinded until the building, structure or facility has been brought into compliance with this chapter. Any individual, firm or corporation which violates a stop-work order shall be guilty of a violation of the law and each week in which such a violation occurs may be considered a separate offense.
D.
The stop-work order shall contain:
(1)
The name of the owner of the subject property;
(2)
The address of the subject property;
(3)
The words "stop-work order" printed at the top of the order in letters at least 1/2 inch in height;
(4)
A warning that violating the stop-work order or removing the stop-work order from the site is in violation of this chapter;
(5)
A statement that the building, facility or structure is in violation of this chapter with the specific section numbers and paragraphs which constitute this violation listed;
(6)
The name, address and telephone number of the Code Enforcement Officer;
(8)
The date of issuance of the order.
E.
The Code Enforcement Officer shall complete an affidavit of service and posting with respect to the issuance of each stop-work order.
F.
The Code Enforcement Officer shall also issue a notice of violation in conjunction with the issuance of each stop-work order.
A.
A violation of this chapter is hereby declared to be an offense, punishable by a fine not exceeding $350 or imprisonment for a period not to exceed six months, or both for conviction of a first offense; for conviction of a second offense, both of which were committed within a period of five years, punishable by a fine not less than $350 nor more than $700 or imprisonment for a period not to exceed six months, or both; and, upon conviction for a third or subsequent offense, all of which were committed within a period of five years, punishable by a fine not less than $700 nor more than $1,000 or imprisonment for a period not to exceed six months, or both. However, for the purpose of conferring jurisdiction upon courts and judicial officers generally, violations of this chapter shall be deemed misdemeanors and for such purpose only all provisions of law relating to misdemeanors shall apply to such violations. Each week's continued violation shall constitute a separate additional violation.[1]
B.
Any special use permit granted hereunder may be revoked by the Planning Board/Zoning Board of Appeals after due hearing on not less than 10 days' notice to the person holding such permit in the event that the use violates any of the conditions or restrictions of this chapter or any conditions or restrictions imposed by the Planning Board/Zoning Board of Appeals upon issuance of such permit.
All zoning regulations stated herein shall be in accord with requirements established by New York State Fire Prevention and Building Construction Code or its successors.[1] Where the requirements of this chapter and the New York State Fire Prevention and Building Construction Code are different, the stricter of the two shall govern.
A.
Fees for applications for site plan approval, special use permit approval, requests for variances from the requirements of this chapter, consideration of request for changes in zoning designation and building permits shall be as established by resolution of the Town Board and may be adjusted from time to time by the Town Board. In addition to any fees set by the Town Board, applicants shall be responsible for bearing the cost of any advertising required for public hearings. Each application for a permit or certificate shall be accompanied by the appropriate fee, paid by cash or check.
B.
Consulting expenses. The Planning Board/Zoning Board of Appeals and/or Code Enforcement Officer, as directed by the Town Board, may, from time to time, utilize the services of professional consultants and/or engineers to verify site plan or regulated operational factors associated with the development, permitting, construction, operation, ownership and/or administration of any project in the Town of Italy. Prior to any commitment of services to be provided (by said consultant), the Town shall obtain an estimate for such services and will review this with the applicant in advance of any firm commitment with said consultant. The expense and fee for services associated with this activity shall be paid directly to the Town by the applicant within 30 days of its written notice to the project developer/owner, with this as a condition of issuance and continuance of the special use (project) permit.
A.
Establishment. There is hereby established a Planning Board/Zoning Board of Appeals consisting of five persons which shall function in the manner prescribed by law.
B.
Terms. The members of the Planning Board/Zoning Board of Appeals shall be residents of the Town of Italy and shall be appointed by the Town Board to serve staggered terms of three years. Therefore, the first Planning Board/Zoning Board of Appeals shall consist of two members with a three-year term, two members with a two-year term, and one member with a one-year term. At the expiration of these initial terms of office, all subsequent terms shall be three years. Vacancies occurring in said Board by expiration of term or otherwise shall be filled in the same manner.
C.
Officers and internal rules.
(1)
The Town Board shall designate the Chairperson of the Planning Board/Zoning Board of Appeals, and said Board shall choose its Vice-Chairperson, who shall preside in the absence of the Chairperson. In the absence of both the Chairman and the Vice-Chairperson, the Planning Board/Zoning Board of Appeals shall choose one of its number as acting Chairperson. Such Chairperson, or the party acting in his/her stead during his/her absence, may administer oaths and compel the attendance of witnesses.
(2)
The Planning Board/Zoning Board of Appeals shall appoint a Secretary who shall take minutes of all its meetings and keep its records, and all meetings shall be tape recorded and such recordings retained for a period of five years.
[Amended 8-11-2011 by L.L. No. 1-2011]
(3)
The Planning Board/Zoning Board of Appeals shall adopt from time to time such rules and regulations as it may deem necessary to carry into effect the provisions of this chapter, and all its resolutions and orders shall be in accordance therewith.
(4)
Mandatory training for regular members and alternate members of the Planning Board/Zoning Board.
[Added 8-13-2013 by L.L. No. 3-2013]
(a)
Commencing with the calendar year 2014, each regular member and each alternate member of the Planning Board/Zoning Board shall complete, at a minimum, four hours of training each calendar year, which training shall pertain to their respective offices. The training shall be designed to enable such regular members and alternate members to more effectively carry out their duties. Training received by a regular member and/or alternate member in excess of four hours in any one calendar year may be carried over by the regular member and/or alternate member into succeeding years in order to meet the requirements of this subsection. Such training shall be approved by the Town Board and may include, but not be limited to, training provided by a municipality, a regional or a county planning department, office or commission, a county planning federation, a state agency or department, a statewide municipal association, and/or a college or other similar entity. Training may be provided in any appropriate format, including but not limited to electronic media, video, distance learning and traditional classroom training.
(b)
To be eligible for reappointment to the respective board, such regular members and/or alternate members shall have completed the training required pursuant to this subsection.
(c)
Failure to comply with the terms of this section by a regular member or alternate member may be considered grounds for removal of that regular member or alternate member pursuant to Town Law § 267, Subdivision 9, or Town Law § 271, Subdivision 9, respectively.
(d)
The training required by this subsection may be waived or modified by resolution of the Town Board when, in the judgment of the Town Board, it is in the best interest of the Town to do so.
(e)
No decision of the Planning Board/Zoning Board of the Town of Italy shall be voided or declared invalid because of a failure to comply with this subsection.
D.
Hearings and appeals.
(1)
The Planning Board/Zoning Board of Appeals shall, in accordance with the provisions hereinafter contained in this section, hold public hearings to determine appeals from any refusal of a special use or building permit or statement of compliance by the C.E.O., or review any order or decision of the C.E.O., where such order or decision is based upon the requirements of this chapter. An appeal must be made within 10 days of the Planning Board/Zoning Board of Appeal's decision.
(2)
The Planning Board/Zoning Board of Appeals shall give public notice of the public hearing at least 10 days prior to the date thereof:
(a)
Publication in the Town newspapers;
(b)
Mailing of a notice to the applicant; and
(c)
Mailing of a notice to all property owners within 2,000 feet of the boundary line of the premises which are the subject of the appeal or application.
(d)
All costs associated with advertising and mailings shall be paid by the applicant to the Town.
(3)
Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this chapter, the Planning Board/Zoning Board of Appeals shall have the power, in passing upon appeals, to vary or modify the application so that the spirit of the law shall be observed and public safety and welfare secured and substantial justice done.
A.
The Planning Board/Zoning Board of Appeals may hear an appeal for an area variance to relieve dimensional or similar requirements. Practical difficulties must be shown by the applicant.
B.
In considering practical difficulties the Planning Board/Zoning Board of Appeals should consider:
(1)
How substantial the variation is in relation to the requirement;
(2)
The effect, if the variance is allowed, on the increased population density thus produced on available governmental facilities (fire, water, refuse, disposal, and the like);
(3)
Whether a substantial change will be produced in the character of the neighborhood or Town or a substantial detriment to adjoining properties created;
(4)
Whether the difficulty can be obviated by some method feasible for the applicant to pursue, other than a variance;
(5)
Whether in view of the manner in which the difficulty arose and considering all of the above factors the interests of justice will be served by allowing the variance.
The Planning Board/Zoning Board of Appeals may hear an appeal for a use variance to consider allowing a use not permitted by the law. It must find that all four of the following conditions are present before granting a use variance:
A.
The land in question cannot yield a reasonable return if used for a purpose permitted in the district in which it is located;
B.
The plight of the owner is due to unique circumstances and not to general conditions in the vicinity of the property;
C.
The variance requested will not alter the essential character of the neighborhood or Town or produce an adverse or negative effect on neighboring property.
D.
The applicant did not create his (or her) own hardship.
[Amended 8-11-2011 by L.L. No. 1-2011]
Except as otherwise specifically provided in this chapter, the following provisions apply to the granting of special use permits in the Town of Italy:
A.
Criteria for granting special use permits.
(1)
Where authorized by this chapter, the Planning Board/ Zoning Board of Appeals shall hear and decide upon applications for special use permits. As required by New York State Town Law § 274-b, a public hearing shall be held. In addition to applying standards that are set forth in Articles IX, X, XI and XII hereof the Planning Board/Zoning Board of Appeals, in its deliberations with regard to the granting of any special use permit, shall make the following determinations:
[Amended 2-12-2019 by L.L. No. 1-2019]
(a)
The granting of a special use permit will not detract from the health, safety, intrinsic qualities and general welfare of the community.
(b)
The potential impacts of the proposed use with regard to traffic on roads and highways, demand for water or wastewater disposal, stormwater runoff, existing drainage patterns, views, noise impacts and other environmental impacts are not detrimental to the overall community.
(c)
The premises are reasonably suited to the proposed use, in terms of size, configuration, layout and location.
(d)
The proposed use is compatible with the character of land uses in the surrounding area and will not adversely impact the existing or anticipated future character of the surrounding neighborhood including viewsheds and scenic districts.
(e)
The proposed use will not adversely impact the natural land, water, views or scenic resources of adjacent property owners or the Town of Italy as a whole.
(f)
The provisions for vehicular and pedestrian circulation within the site, and ingress to and egress from the site are safely designed.
(g)
The proposed site plan conforms to minimum requirements in terms of setbacks, lot coverage, parking and loading facilities, and other relevant requirements for the zoning district in which it is proposed and any requirements of the New York State Fire Prevention and Building Construction Code or its successors.
(2)
In granting a special use permit the Planning Board/Zoning Board of Appeals may impose upon the applicant such reasonable conditions as it deems necessary to protect the general welfare, character, intrinsic quality (including views) and health and safety of the community.
(3)
If the project has not materially commenced within one year, the special use permit approval will terminate.
B.
Application for special use permit.
(1)
Application for a special use permit shall be made to the Code Enforcement Officer, who will forward the application to the Planning Board/Zoning Board of Appeals. Each application for special use permit shall contain, at a minimum, the following information:
(a)
Name and address of the owner(s) of record of the property, and name and address of the applicant, if different.
(b)
A brief written narrative describing the proposed changes to the property, proposed uses and activities, hours of operation and estimated number of employees (if applicable) and other information the applicant believes to be relevant.
(c)
Description of the location of the property by address and tax parcel number, total size of the parcel, and area of parcel proposed to be developed.
(d)
A map of the general area showing the location of the property, all streets, highways, major streams, and Town, county or state parks or other facilities.
(e)
The names and addresses of the owners of record of all adjoining property owners.
(2)
When considering a proposed site plan [Subsection B(1)(f) above] as part of its consideration of a request for special use permit, the Planning Board/Zoning Board of Appeals may waive or add one or more items or design details of the site plan that are otherwise normally to be shown on the plan, if, in its opinion, the lack of such information is not a hindrance to its consideration of the proposed site plan.
C.
Decision. After the conclusion of the public hearing, the Planning Board/Zoning Board of Appeals shall render a decision on the proposed special use permit, to be carried out by the C.E.O. The Planning Board/Zoning Board of Appeals' action shall be in the form of a written statement to the applicant stating whether or not the special use permit is approved, disapproved, or approved with modification and/or conditions.
(1)
Disapproval.
(a)
If the special use permit is disapproved, the Planning Board/Zoning Board of Appeals' statement will state the reason(s) for such findings. In such a case, the Planning Board/Zoning Board of Appeals may recommend further study of the proposal and resubmission to the Planning Board/Zoning Board of Appeals after it has been revised or redesigned. The Planning Board/Zoning Board of Appeals may grant to the applicant a continuance of the review process and/or adjourn at the conclusion of the public hearing until a later date agreed to by the applicant.
(b)
Upon disapproval of a final special use permit, the Planning Board/Zoning Board of Appeals shall so inform the Code Enforcement Officer, and the Code Enforcement Officer shall not issue a building permit to the applicant The Planning Board/Zoning Board of Appeals must make specific written findings as to the criteria set forth in § 350-74 above before it can disapprove a final proposal. The Planning Board/Zoning Board of Appeals shall also notify the applicant in writing of its decision and its reasons for disapproval. A copy of the resolution of disapproval shall be filed with the Town Clerk within 10 days of the decision by the Planning Board/Zoning Board of Appeals.
(2)
Conditional approval. The Planning Board/Zoning Board of Appeals' statement may include recommendations of desirable modifications to be incorporated in the final proposal, and conformance with specified modifications shall be considered a condition of approval.
(3)
Approval.
(a)
Upon approval of the final application and payment by the applicant of all fees and reimbursable costs due to the municipality, the Planning Board/Zoning Board of Appeals shall endorse its approval by signature or stamp on a copy of the final special use permit and related supporting documents and shall forward it to the C.E.O. A copy of the resolution of approval shall be filed with the Town Clerk within 10 days of the decision by the Planning Board/Zoning Board of Appeals.
(b)
Every special use permit approved pursuant to this chapter shall include the following conditions:
[1]
The Town Code Enforcement Officer and/or other appropriate Town official shall have the right to inspect the project at any time.
[2]
The constructed project approved by the Planning Board/Zoning Board of Appeals for special use permit shall not deviate from said plan.
[3]
The permit holder shall notify the Town Code Enforcement Officer of the date on which project construction is to begin at least five days in advance of such date.
[4]
The approved special use permit shall be prominently displayed at the project site during the undertaking of the construction activities authorized by the plan's approval.
(c)
If no decision is made within 62 calendar days following the conclusion of the public hearing, the proposal shall be considered approved as submitted.