This chapter shall be enforced by the Code Enforcement Officer,
who shall be appointed by the Town Board. In the case of vacancy in
the office of the Code Enforcement Officer, the Town Supervisor or
his designee, as ratified by the Town Board, shall be the acting enforcement
officer. No building permit or certificate of occupancy shall be issued
by the Code Enforcement Officer except where all the provisions of
this chapter have been complied with.
A.
Building permit. No building or dwelling unit shall be constructed,
structurally altered, enlarged or moved, with costs more than $2,500,
unless a building permit for such action has been issued by the Code
Enforcement Officer.
B.
Matter accompanying application for permits.
(1)
Each application to the Code Enforcement Officer for a permit to
erect a new building or structure or to enlarge an existing one or
to move an existing one shall be accompanied by a site plan showing
the measurements of the lot and of all building setbacks and parking
spaces, existing and proposed, and the intended use. The documentation
shall be the same as required for site plan review. For new construction
without public sewers, no building permit shall be issued unless any
required approval is received by the New York State Department of
Health and, where applicable, the New York State Department of Environmental
Conservation.
(2)
Any other application for a building permit and any application for
a use permit shall be accompanied by a description of the intended
use or uses of the land and buildings and such further details as
the Code Enforcement Officer may require for a clear understanding
of the case.
A.
Establishment.
(1)
A Zoning Board of Appeals is hereby established in accordance with Article 16, § 267, of the Town Law. It shall consist of five members, each to serve for a term of five years. The Town Board may appoint alternate members to the Board of Appeals in accordance with Chapter 48 of the Town Code. 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 Article 16 of the Town Law. Such members shall complete the training requirements provided in § 267 of the Town Law. A member of the Board of Appeals shall not at the same time be a member of the Town Board.
(2)
Vacancies occurring in said Board shall be filled for such unexpired
period only. The Town Board shall designate its chairperson and shall
provide for such expenses as may be necessary and proper. In the absence
of a chairperson, the Zoning Board of Appeals may designate a member
to serve as acting chairperson.
(3)
The Town Board shall have the power to remove any member of the Zoning
Board of Appeals for cause and after public hearing.
B.
Powers.
(1)
The Zoning Board of Appeals shall have the duties, rights, powers
and functions conferred upon it by Article 16 of the Town Law and
any other provisions of the Town Law and any other provisions of law
or ordinance applicable thereto in connection with appeals to review
any order, requirement, decision, interpretation or determination
made by the administrative official charged with the enforcement of
this chapter, generally the Code Enforcement Officer. The Board, upon
application, may also issue advisory opinions and interpretations
of the zoning code or map.
(2)
Hearing appeals. In addition to other powers conferred to it by this
chapter, the jurisdiction of the Zoning Board of Appeals shall be
appellate and shall include hearing and deciding appeals from and
reviewing any order, requirement, decision, interpretation or determination
made by the Enforcement Officer. Such appeal may be taken by any person
aggrieved, or by an officer, department, board or bureau of the Town.
C.
Conduct of business.
(1)
The Zoning Board of Appeals may employ such clerical or other staff
as may be necessary, provided that it shall not incur expenses beyond
the amount of appropriations made available by the Town Board for
such purposes.
(2)
Meetings, minutes, records. Meetings of the Zoning Board of Appeals
shall be open to the public to the extent provided in Article 7 of
the Public Officers Law. Such 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.
(3)
Filing requirements. Every rule, regulation, every amendment or repeal
thereof, and every order, requirement, decision or determination of
the Board of Appeals shall be filed in the office of the Town Clerk
within five business days and shall be a public record.
(4)
Assistance to Board of Appeals. Such Board shall have the authority
to call upon any department, agency or employee of the Town for such
assistance as shall be deemed necessary and as shall be authorized
by the Town Board. Such department, agency or employee may be reimbursed
for any expenses incurred as a result of such assistance. Further,
the Zoning Board of Appeals shall have the authority to call upon
any professional to assist in its review of applications. Expenses
for such professional shall be borne by the applicant.
(5)
The Zoning Board of Appeals shall have the power to promulgate written
rules of procedure, bylaws and forms in order to fulfill its responsibilities
under this chapter.
(6)
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.
(7)
If an agricultural data statement has been submitted, the Clerk 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.
(8)
Time of appeal. An appeal shall be taken within 60 days after the
filing of any order, requirement, decision, interpretation or determination
of the Enforcement Officer by filing with such officer and with the
Zoning Board of Appeals a notice of appeal, specifying the grounds
thereof and the relief sought 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 Zoning Enforcement Officer shall transmit to the Zoning Board
of Appeals all the papers constituting the record upon which the action
appealed from was taken.
(9)
Stay upon appeal. An appeal shall stay all proceedings in furtherance
of the action appealed from, unless the Enforcement Officer certifies
to the Board of Appeals, after the notice of appeal shall have been
filed with the administrative official, 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 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 administrative official from whom the appeal is taken
and on due cause shown.
(10)
Hearing on appeal. The Board of Appeals shall fix a reasonable
time for the hearing of the appeal or other matter referred to it
after receipt of a complete application. The Zoning Board of Appeals
shall give public notice of such hearing by publication in a paper
of general circulation in the Town at least five days prior to the
date thereof. 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 Board prior to the
hearing of such appeal. Upon the hearing, any party may appear in
person, or by agent or attorney. In addition to the public notice
of a hearing, notice shall be given, in writing, to all property owners
of the land included in such proposed change, and the land immediately
adjacent extending 500 feet therefrom, and the land directly opposite
thereto extending 500 feet from the street or highway frontage of
such opposite land, as said property owners and addresses appear on
the latest completed assessment roll of the Town. Upon the hearing,
any party may appear in person, or by agent or by attorney. The Board
of Appeals may reverse or affirm, wholly or partly, or may modify
the order, requirement, decision or determination appealed from and
shall make such 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.
(11)
Notice to County Planning Board. At least five days before such
hearing, the Board of Appeals shall mail notices thereof to the parties
and to the County Planning Board as required by § 239-m
of the General Municipal Law. This notice shall be accompanied by
a full statement of the proposed action, as defined in Subdivision
1 of § 239-m of the General Municipal Law. 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 requirements
for the County Planning Board's review. 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.
(12)
Time of decision on appeal. The Board of Appeals shall decide
upon the appeal within 62 days after the conduct of said hearing.
The time within which the Board of Appeals must render its decision
may be extended by mutual consent of the applicant and the Board.
(13)
Voting requirements.
(a)
Decision of the Board. Every motion or resolution of a Board
of Appeals shall require for its adoption the affirmative vote of
a majority of all the members of the Board of Appeals as fully constituted,
regardless of vacancies or absences. Where an action is the subject
of a referral to the county planning agency, the voting provisions
of § 239-m of the General Municipal Law shall apply.
(b)
Default denial of appeal. In exercising its appellate jurisdiction
only, if an affirmative vote of a majority of all members of the Board
is not attained on a motion or resolution to grant a variance or reverse
any order, requirement, decision or determination of the Enforcement
Officer within the time allowed, the appeal is denied. The Board may
amend the failed motion or resolution and vote on the amended motion
or resolution within the time allowed without being subject to the
rehearing process.
(14)
Filing of decision and notice. The decision of the Board of
Appeals on the appeal shall be filed in the office of the Town Clerk
within five business days after the day such decision is rendered
and a copy thereof mailed to the applicant.
(15)
Compliance with State Environmental Quality Review Act. The
Board of Appeals shall comply with the provisions of the State Environmental
Quality Review Act under Article 8 of the Environmental Conservation
Law and its implementing regulations as codified in Title 6, Part
617, of the New York Codes, Rules and Regulations.
(16)
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.
Permitted action by Board of Appeals.
(1)
Orders, requirements, decisions, interpretations, determinations.
The 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 such ordinance or local law and to that end shall have all the
powers of the administrative official from whose order, requirement,
decision, interpretation or determination the appeal is taken.
(2)
Use variances.
(a)
The Board of Appeals, on appeal from the decision or determination
of the administrative official charged with the enforcement of such
ordinance or local law, shall have the power to grant use variances,
as defined herein.
(b)
No such use variance shall be granted by a Board of Appeals
without a showing by the applicant that applicable zoning regulations
and restrictions have caused unnecessary hardship. In order to prove
such unnecessary hardship, the applicant shall demonstrate to the
Board of Appeals that for each and every permitted use under the zoning
regulations for the particular district where the 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]
That 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]
That the requested use variance, if granted, will not alter
the essential character of the neighborhood; and
[4]
That the alleged hardship has not been self-created.
(c)
The Board of Appeals, in the granting of use variances, shall
grant the minimum variance that it shall deem 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.
(3)
Area variances.
(a)
The Zoning Board of Appeals shall have the power, upon an appeal
from a decision or determination of the administrative official charged
with the enforcement of such ordinance or local law, to grant area
variances as defined herein.
(b)
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 also consider:
[1]
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;
[2]
Whether the benefit sought by the applicant can be achieved
by some method, feasible for the applicant to pursue, other than an
area variance;
[3]
Whether the requested area variance is substantial;
[4]
Whether the proposed variance will have an adverse effect or
impact on the physical or environmental conditions in the neighborhood
or district; and
[5]
Whether the alleged difficulty was self-created, which consideration
shall be relevant to the decision of the Board of Appeals, but shall
not necessarily preclude the granting of the area variance.
(c)
The Board of Appeals, in the granting of area variances, shall
grant the minimum variance that it shall deem necessary and adequate
and at the same time preserve and protect the character of the neighborhood
and the health, safety and welfare of the community.
(4)
Imposition of conditions. The Board of Appeals shall, in the granting
of both use variances and area variances, have the authority to 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 the Zoning Ordinance
or local law and shall be imposed for the purpose of minimizing any
adverse impact such variance may have on the neighborhood or community.
E.
Court review of Board decisions.
(1)
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.
(2)
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.
(3)
Grant of variance. The grant of a variance shall serve as authorization
for the Code Enforcement Officer to issue a project permit, provided
that the project complies with all applicable provisions of this chapter
and other applicable regulations.
A.
Pursuant to § 271 of the Town Law, the Planning Board shall consist of seven members appointed by the Town Board. The Town Board may also appoint alternate members pursuant to Chapter 48 of the Town Code.
B.
The Town Board shall appoint and designate the Chair. In the absence
of a chair, the Planning Board may designate a member to serve as
Acting Chair. A member of the Planning Board shall not simultaneously
be a member of the Town Board or of the Zoning Board of Appeals. The
Town Board shall have the power to remove any member appointed by
such Board for cause after a public hearing. The Chair may only be
removed from office pursuant to this section by action of the Town
Board. The Town Board shall provide for reasonable compensation for
a clerk and for such other expenses as may be necessary and proper.
The Office of the Town Clerk may serve as the Office of the Clerk
of the Planning Board. Additionally, the Town Clerk may appoint a
deputy to serve as the Clerk of the Planning Board.
C.
Powers of the Planning Board. The responsibilities of the Planning
Board are as follows:
(1)
Reviewing and approving subdivision applications;
(2)
Reviewing and approving site plans;
(3)
Reviewing and approving special use permits;
(4)
Submitting an advisory opinion to the Town Board for proposed amendments
to this chapter;
(5)
Reviewing proposed PUD applications;
(6)
Reviewing and approving lot line changes or adjustments; and
(7)
Any other matter that the Town Board shall, by amendment to this
chapter, decide to vest as responsibilities of the Planning Board.
D.
Terms. Terms of office for members of the Planning Board shall be
for seven years. If a vacancy shall occur otherwise than by expiration
of term, the Town Board shall appoint the new member for the remainder
of the term.
E.
Training and continuing education. Every member of the Planning Board
shall annually attend four hours at one or more training or continuing
education course related to the work of the Planning Board each year
as provided pursuant to Town Law § 271. The Town Board shall
pay the reasonable expense of such training or continuing education.
F.
Appointment and removal of members. Except as otherwise provided
herein, § 271 of the Town Law shall govern the appointment
and removal of Planning Board members.
G.
Conduct of business.
(1)
The Planning Board may employ such clerical or other staff or consulting assistance as may be necessary for the conduct of its business, provided that it shall not incur expenses beyond the amount of appropriations made available for such purposes or covered by an escrow account. The Planning Board may also engage engineers, planners, architects and other consulting services at the expense of the applicant for site plan review, subdivision approval or a special use permit as provided for in Chapter 153 of the Town Code.
(2)
All meetings of the Planning Board shall be held at the call of the
Chair and at such other times as such Board may determine. The concurring
vote of a majority of all members shall be necessary to take action
on any matter before it. Meetings shall be open to the public as provided
in Article 7 of the Public Officers Law of the State of New York (Open
Meetings Law[1]). The Board shall keep minutes of its proceedings. The
minutes shall show the vote of each member upon every question, or
if absent or failing to vote, indicating such fact. The Planning Board
shall also keep records of its examinations and other official actions,
which shall also be filed in the office of the Town Clerk.
[1]
Editor's Note: See Public Officers Law § 100 et
seq.
(3)
The Planning Board may adopt forms and bylaws for the conduct of
its meeting so long as such bylaws are consistent with Town Law and
this chapter. Such forms and bylaws shall be filed in the office of
the Town Clerk and made available to the public.
(4)
Voting requirements. Every motion or resolution of the Planning Board
shall require for its adoption the affirmative vote of a majority
of all the members of the Planning Board. Where an action is the subject
of a referral to the county planning agency, the voting provisions
of §§ 239-m and 239-n of the General Municipal Law
shall apply.
(5)
Procedure. All applications to the Planning Board shall be made,
in writing, on forms prescribed by the Planning Board and provided
by the Town Clerk. Every final decision of the Planning Board with
respect to an application shall be made by resolution and shall contain
a full record of findings in the case. The decision of the Planning
Board shall immediately be filed in the office of the Town Clerk,
and copies thereof mailed to the applicant and to the Code Enforcement
Officer.
A.
If the alleged violator(s) fails to correct the violation within
the reasonable time period provided for correction of the violation,
the Code Enforcement Officer shall then commence a proceeding in the
local Justice Court as per this section. Prior to implementing a criminal
or civil penalty, the Code Enforcement Officer shall inform the Town
Board to determine which procedure to pursue.
B.
Criminal proceedings. The Code Enforcement Officer shall commence
the proceeding by causing an appearance ticket to be served on the
alleged violator(s) in accordance with the requirements of state law
for issuance of appearance tickets. An appearance ticket issued under
authority of this chapter shall be served personally. The Code Enforcement
Officer shall also prepare a supporting deposition or affidavit setting
forth the details of the violation. The deposition shall:
C.
The Code Enforcement Officer may also, where an appearance ticket
fails to secure the court attendance of the alleged violator(s), request
that the Justice Court issue a criminal summons for service on the
alleged violator(s). The Town Attorney shall represent the Code Enforcement
Officer in the Justice Court. Notwithstanding the foregoing, the Code
Enforcement Officer may simultaneously, or in addition to the remedy
provided in this chapter, refer the alleged violation to the Town
Board and Town Attorney for an injunction and the collection of civil
fines.
D.
As per New York State Town Law § 268, any 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; upon conviction
of a second offense, both of which were committed within a period
of five years, punishable by a fine of not less than $350, nor more
than $700, or imprisonment for a period not to exceed six months,
or both; and upon conviction of a third or subsequent offense, all
of which were committed within a period of five years, punishable
by a fine of not less than $700, nor more than $1,000, or imprisonment
for a period not to exceed six months, or both. For the purpose of
conferring jurisdiction upon the courts and judicial officers generally,
violations of the Zoning Law 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. A violator must be served
a new deposition and criminal summons for each and every week that
a fine is sought.
E.
Civil penalties. In addition to those penalties prescribed by state
law, any person who violates any provision of this Zoning Law, or
any term or condition of any zoning permit, stop-work order, operating
permit or other notice or order issued by the Code Enforcement Officer
pursuant to any provision of this Zoning Law, shall be liable to a
civil penalty of not more than $200 for each day or part thereof during
which such violation continues. The civil penalties provided by this
subsection shall be recoverable in an action instituted by Athens.
F.
Injunctive relief. An action or proceeding may be instituted by the
Town, in a court of competent jurisdiction, to prevent, restrain,
enjoin, correct or abate any violation of, or to enforce, any provision
of this chapter or any term or condition of any stop-work order, operating
permit, compliance order or other notice or order issued by the Code
Enforcement Officer pursuant to any provision of this chapter. In
particular, but not by way of limitation, where the construction or
use of a building or structure is in violation of any provision of
this chapter, or any stop-work order or compliance order or this chapter,
an action or proceeding may be commenced in the name of the Town,
in the Supreme Court or in any other court having the requisite jurisdiction,
to obtain an order directing the removal of the building or structure
or an abatement of the condition in violation of such provisions.
No action or proceeding described in this section shall be commenced
without the appropriate authorization from the Town Board.
G.
Remedies not exclusive. No remedy or penalty specified in this section
shall be the exclusive remedy or remedy available to address any violation
described in this section, and each remedy or penalty specified in
this section shall be in addition to, and not in substitution for
or limitation of, the other remedies or penalties specified in this
section, in any other section of this chapter or in any other applicable
law. Any remedy or penalty specified in this section may be pursued
at any time, whether prior to, simultaneously with or after the pursuit
of any other remedy or penalty specified in this section, in any other
section of this chapter or in any other applicable law. In particular,
but not by way of limitation, each remedy and penalty specified in
this section shall be in addition to, and not in substitution for
or limitation of, the penalties specified in Subdivision (2) of § 381
of the New York State Executive Law, and any remedy or penalty specified
in this section may be pursued at any time, whether prior to, simultaneously
with or after the pursuit of any penalty specified in Subdivision
(2) of § 381 of the New York State Executive Law.
The Town Board may from time to time, on its own motion or on
petition or on recommendation of the Planning Board, supplement or
repeal the regulations and provisions of this chapter after public
notice and hearing.
A.
Every such proposed amendment or change, whether initiated by the
Town Board or by petition, shall be referred to the Planning Board
for report thereon before the public hearing hereinafter provided
for.
B.
The Town Board, by resolution adopted at a stated meeting, shall
fix the time and place of a public hearing on the proposed amendment
and cause notice to be given as follows:
(1)
By publishing a notice of the time and place of said hearing in a
paper of general circulation in the Town at least 10 days prior to
said hearing.
(2)
A written notice of any proposed change or amendment affecting property
within the proposed zoned area of a housing project authorized under
the Public Housing Law, as such area is shown on an approved Zoning
Map filed with the Code Enforcement Officer, shall be given to the
housing authority erecting or owning the project and to the government
providing financial aid or assistance thereto at least 10 days prior
to the date of such hearing.
(3)
A written notice of any proposed change or amendment affecting property
within 500 feet of the boundaries of any state park or parkway shall
be given to the regional State Park Commission having jurisdiction
over such state park or parkway at least 10 days prior to the date
of such public hearing.
(4)
A written notice of any proposed change or amendment affecting property
within 500 feet of the boundaries of any city, village, town or county
shall be given to the clerk of such municipality and to the Clerk
of the Greene County Legislature at least 10 days prior to the date
of such hearing.
(5)
A written notice of any such proposed change or amendment and public
hearing thereof shall be referred to the County Planning Board pursuant
to General Municipal Law § 239-m.
C.
In case, however, of a protest against such change signed by the
owners of 20% or more of the area of land included in such proposed
change or of that immediately adjacent, extending 100 feet therefrom,
or of that directly opposite thereto, extending 100 feet from the
street frontage of such opposite land, such amendment shall not become
effective except by the favorable vote of at least four members of
the Town Board.
In their interpretation and application, the provisions of this
chapter shall be held to be minimum requirements, adopted for the
promotion of the public health, morals, safety or the general welfare.
Whenever the requirements of this chapter are at variance with the
requirements of any other lawfully adopted rules, regulations or ordinances,
the most restrictive, or that imposing the highest standards, shall
govern.
