A.
General rules - appeals, variances. Appeals from orders, decisions,
requirements, interpretations, determinations of Code Enforcement
Officer. The Zoning Board of Appeals is vested with the authority
to interpret the provisions of this chapter on a written appeal from
a written decision, determination, order, requirement or interpretation
made by the Code Enforcement Officer. As such, the Zoning Board of
Appeals may reverse or affirm, wholly or partly, or may modify the
written decision, determination, order, requirement or interpretation
appealed from, and shall make such decision, determination, order,
requirement, or interpretation as in its opinion ought to have been
made in the matter by the Code Enforcement Officer. Such action by
the Zoning Board of Appeals shall be referred to herein as an interpretation.
In so doing, the Zoning Board of Appeals shall have all the powers
of the administrative official from whose written decision, determination,
order, requirement, or interpretation the appeal is taken.
(1)
Authorization for Zoning Board of Appeals to grant variances. In accordance with Section 267-b of the Town Law of the State of New York, 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. The Zoning Board of Appeals shall also have the power to vary or modify the dimensional or area requirements and restrictions of this chapter upon referral from the Planning Board and without a written decision or determination made by the Code Enforcement Officer in the case of a site plan, special use permit or subdivision application that the Planning Board has before it. The specific standards for the grant of use and area variances are set forth below. The definitions of use and area variances are set forth in Article XV of this chapter.
(2)
Method of appeal. Such appeal may be taken by any person aggrieved
by the written decision, determination, order, requirement or interpretation
made by the Code Enforcement Officer or by an officer, department,
board or bureau of the Town. The determination of whether an applicant
is aggrieved shall be determined by the Zoning Board of Appeals, after
hearing, as part of the appeal process set forth below.
(a)
Use variances.
[1]
The Zoning Board of Appeals, on appeal from a decision or determination
of 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 prove unnecessary hardship the applicant shall demonstrate
that for each and every permitted use under the zoning regulations
for the particular district where the property is located:
[a]
The applicant cannot realize a reasonable return,
provided that lack of return is substantial as demonstrated by competent
financial evidence;
[b]
The alleged hardship relating to the property in
question is unique, and does not apply to a substantial portion of
the land use area or neighborhood;
[c]
The requested use variance, if granted, will not
alter the essential character of the neighborhood;
[d]
The alleged hardship has not been self-created.
[3]
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.
[4]
The Zoning Board of Appeals shall consider any agricultural
data statement and whether the variance would have an undue adverse
impact on the farm operations identified by the agricultural data
statement.
[5]
Imposition of conditions. The Zoning Board of Appeals shall,
in granting area variances, impose such reasonable conditions and
restrictions as are 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 the variance may have on the neighborhood or community.
(b)
Area variances.
[1]
The Zoning Board of Appeals shall have the power, upon an appeal
from a determination of the Code Enforcement Officer, or upon the
referral from the Planning Board with respect to a site plan, special
use permit or subdivision application it has before it, that the applicant's
proposal can not be approved by reason of its failure to meet the
dimensional or area regulations of this chapter, to grant area variances
from the area or dimensional requirements of this chapter.
[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
this 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 land use area or overlay area; 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 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.
[4]
Imposition of conditions. The Zoning Board of Appeals shall,
in granting area variances, impose such reasonable conditions and
restrictions as are 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 the variance may have on the neighborhood or community.
B.
Procedure for appeals-application.
(1)
Time of appeal. An appeal from an order, requirement, decision, interpretation
or determination of the Code Enforcement Officer, shall be taken within
60 days after the filing in the Town Clerk's office of such order,
requirement, decision, interpretation or determination of the Code
Enforcement Officer. In the case of an application for an area variance
from a site plan, special use permit or subdivision application before
the Planning Board, the appeal shall be taken within 60 days of the
date that the Planning Board determined that an area variance is required.
(2)
Placement of agenda. In order for an appeal to be placed on the Zoning
Board of Appeal's meeting agenda, the required application materials
shall be submitted to the Town Clerk at least 14 days prior to the
date of the Zoning Board of Appeal's meeting.
(3)
Application requirements. In order for an appeal, whether variance
or interpretation, to be commenced, the applicant shall submit at
least one original and seven copies of the following together with
whatever other information the Zoning Board of Appeals deems appropriate:
(a)
A Town of Johnstown Zoning Board of Appeals application form.
(b)
A plot plan drawn to scale with accurate dimensions providing
information sufficient to enable the Board to make an informed decision,
and an agricultural data statement as defined below.
(c)
A narrative describing the existing and/or proposed use and
operation together with the justification for the requested variance
or interpretation.
(d)
A short-form or long-form SEQRA Environmental Assessment Form
(EAF) with Part 1 fully completed by the applicant (a long-form EAF
is required for all SEQRA Type I actions, but the Zoning Board of
Appeals may require a long-form EAF for unlisted actions if the Board
deems that the additional information contained on the long-form would
be helpful and appropriate under the circumstances of the appeal).
(e)
The application fee as established by the Town Board, and an escrow deposit for reimbursement of cost of Town consultants (if required) pursuant to § 84-9 of this chapter.
(f)
The Zoning Board of Appeals may waive or add any requirements
for an application submission if it deems appropriate in order to
accomplish the purposes set forth herein.
(4)
Forward application. Upon submission of an application for a variance
or interpretation that appeals a decision, determination or order
of the Code Enforcement Officer, the Code Enforcement Officer shall
forward to the Zoning Board of Appeals a complete copy of the file
on the property that is the subject of the appeal and all the papers
constituting the record upon which the action appealed from was taken.
C.
Procedures for hearing and review.
(1)
Determining completeness of application. At the first meeting at
which an application is first presented as an agenda item, the Zoning
Board of Appeals shall determine whether the application is complete
for purposes of commencing the review process. If an application is
determined to be incomplete, the Zoning Board of Appeals shall notify
the applicant in writing as to what aspects of the application submittal
are lacking or are otherwise insufficient to start the process. The
time-frames for Zoning Board of Appeals action during the review process
shall not commence until the submission of a fully complete application
with supporting documents and materials and the determination by the
Zoning Board of Appeals that the application is complete.
(2)
Planning Board recommendation. The Zoning Board of Appeals, in its
discretion, may request the Planning Board to make a recommendation
on such matter and such recommendation shall become part of the record
but shall not be binding upon the Zoning Board of Appeals.
(3)
Stay upon appeal. An appeal shall stop all proceedings relating to
the action appealed from, unless the Code Enforcement Officer certifies
to the Zoning Board of Appeals that by reason of facts stated in the
certificate a stay would, in his or her opinion, cause imminent peril
to life or property. In that case, proceedings shall not be stayed
otherwise than by a restraining order which may be granted by the
Zoning Board of Appeals or by a Court of competent jurisdiction. The
application for a stay shall be on notice to the Code Enforcement
Officer and with due cause shown.
(4)
Compliance with state environmental quality review act. The Zoning
Board of Appeals shall comply with the provisions of the State Environmental
Quality Review Act. The following actions of the Zoning Board of Appeals
do not require review under the State Environmental Quality Review
Act; Granting of individual setback and lot line variances; granting
of an area variance(s) for a single-family and a two-family dwelling;
and appeals involving only interpretations of the Zoning Law and not
variances other than those area variances previously mentioned.
(5)
Referral to County Planning Department. In the case of a variance
application and upon receipt of application materials it deems to
be complete, the Zoning Board of Appeals shall refer to the County
Planning Department any application for a variance affecting real
property within 500 feet of the boundary of the Town of Johnstown,
the boundary of any existing or proposed county or state park or other
recreational area, the boundary of any existing or proposed county
or state roadway, the boundary of any existing or proposed right-of-way
for a stream or drainage channel owned by the county for which the
county has established channel lines, the boundary of any existing
or proposed county or state-owned land on which a public building
or institution is situated, or the boundary of a farm operation within
an agricultural district as defined in Article 25AA of the Agriculture
and Markets Law, pursuant to General Municipal Law, Article 12-B,
Sections 239-1 and 239-m, as amended. No action shall be taken on
applications referred to the County Planning Department until its
recommendation has been received, or 30 days have elapsed after its
receipt of the complete application, unless the County and Town agree
to an extension beyond the thirty-day requirement for the county Planning
Department's review. A majority-plus-one vote of the Planning
Board shall be required to grant any special use permit which receives
a recommendation of disapproval from the county Planning Department
because of the referral process specified above, along with a resolution
setting forth the reasons for such contrary action.
(6)
Notice and hearing on appeal.
(a)
Schedule. The Zoning Board of Appeals shall schedule and hold
a public hearing on the appeal or other matter referred to it within
62 days of the date that the application for the appeal is considered
complete by the Zoning Board of Appeals. The time in which a public
hearing shall be held may be lengthened only upon consent of the Applicant
and Zoning Board of Appeals.
(b)
Public notice. At least five days prior to the date of such
hearing, 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 all adjoining property owners and
to any other property owners in the affected area that the Zoning
Board of Appeals may require to be notified.
(c)
§ 239-m Review. In the case of a hearing held on an
application on a property that is located within 500 feet of an adjacent
municipality, the Zoning Board of Appeals shall give notice of the
hearing to the Clerk of the adjacent municipality, by either mail
or electronic transmission, at least 10 days prior to the hearing
pursuant to General Municipal Law § 239-m.
(d)
Expenses. The cost of sending or publishing any notices relating
to such appeal, or a reasonable fee relating thereto, shall be borne
by the appealing party and shall be paid to the Zoning Board of Appeals
prior to the hearing of such appeal.
(e)
Testimony. Upon the hearing, any party may appear in person,
or by agent or attorney. The Zoning Board of Appeals may require testimony
to be made under oath.
(f)
Time of decision. The Zoning Board of Appeals shall decide the
appeal within 62 days after the conduct of said hearing. The time
within which the Zoning Board of Appeals must render its decision
may be extended by mutual consent of the applicant and the Board.
(g)
Filing of decision. The decision or notes of the Zoning Board
of Appeals on the appeal shall be filed in the Office of Town Clerk
within 10 business days after the day such decision is rendered, and
a copy thereof mailed to the applicant. The minutes, as approved by
the Zoning Board of Appeals, shall be filed in the Town Clerk's
Office within 10 business days of the meeting at which the minutes
were approved.
(h)
Rehearing. A motion for the Zoning Board of Appeals to hold
a rehearing to review any order, decision or determination of the
Board not previously reheard may be made by any member of the Board.
A unanimous vote of all members of the Board then present is required
for such rehearing to occur. Such rehearing is subject to the same
notice provisions as an original hearing. Upon such rehearing the
Board may reverse, modify or annul its original order, decision or
determination upon the unanimous vote of all members then present,
provided the Board finds that the rights vested in persons acting
in good faith in reliance upon the reheard order, decision or determination
will not be prejudiced thereby.
D.
General conduct of business.
(1)
The Zoning Board of Appeals may employ such clerical or other staff
or consulting assistance as may be necessary, provided the Town Board
has approved the applicant and makes such appointment and it shall
not incur expenses beyond the amount of appropriations made available
by the Town Board for such purposes.
(2)
The Zoning Board of Appeals shall have the power to promulgate written
rules of procedure, by-laws, and forms in order to fulfill its responsibilities
under this chapter.
(3)
All meetings of the Zoning Board of Appeals shall be held at the
call of the chairperson and at such other times as the Board may determine.
The chairperson or, in his or her absence, the acting chairperson
may administer oaths and compel the attendance of witnesses. Meetings
of the Zoning Board of Appeals shall be open to the public as required
in Article Seven of the Public Officers Law of the State of New York.
(4)
The Zoning Board of Appeals 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. The concurring vote
of a majority of all members shall be necessary to take action on
any matter before it.
(5)
Filing requirements. Every rule, regulation, every amendment or repeal
thereof, and every order, requirement, decision or determination of
the Zoning Board of Appeals shall be filed in the Town Clerk's
Office within 10 business days and shall be a public record.
E.
Expiration of appeal decision.
(1)
Termination or lapse of variance. Any variance that is not exercised
within one year of the date it is issued shall lapse without further
hearing by the Zoning Board of Appeals. Likewise, 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
or other permit or approval within one year of the date of such decision.
(2)
Interpretations binding. Interpretations made by the Zoning Board
of Appeals shall not lapse unless reconsidered by the Zoning Board
of Appeals and shall be binding on all Boards and officials of the
Town.
