Town of Liberty, NY Appeals, Variances, and Zoning Board of Appeals

General procedures.

The Board of Appeals shall act in strict accordance with the procedure specified by the Town Law and by this chapter. All appeals and variance applications made to the Board shall be in writing on forms prescribed by the Board or provided for herein. Every appeal or variance application shall refer to the specific provision of the chapter involved and shall exactly set forth the interpretation that is claimed, the use which is involved or sought to the details of the variance that is applied for and the grounds on which it is claimed that the variance should be granted, as the case may be. Every decision of the Board shall be by resolution, each of which shall contain a full record of the findings of the Board in the particular case.

(2)

An appeal must be made within 30 days of the action of the Code Enforcement Officer. The applicant must file a signed notice of appeal with the Code Enforcement Officer and with the Secretary of the Board of Appeals. Such notice shall be made on the forms provided for that purpose. The administrative official from who the appeal is taken shall be responsible, at the direction of the Board, for providing any applicant with the proper forms and for instructing the parties concerned on the proper manner for completing and filing said forms. All information required thereon shall be complete before an appeal is considered filed. Six copes of the proper appeal form shall be filed with the Board.

Variance requirements.

(1)

Any property owner, tenant or representative thereof may, in appealing an administrative decision of the Town of Liberty with respect to this chapter, request a variance from its literal terms. Application for a variance may be made concurrently with application for a building permit, subdivision or special use/site plan and shall be delivered to the Code Enforcement Officer or Planning Board, respectively, who shall then, in acting upon the application, refer the matter to the Zoning Board of Appeals for a decision on the variance request. This shall not, however, preclude an applicant whose permit request has been denied from subsequently requesting a variance in conjunction with an appeal of such action i f the appeal has been timely filed.

(2)

Two types of variances may be granted by the Zoning Board of Appeals: area variances and use variances. Area variances involve relief from dimensional or other requirements for existing uses or uses allowed within the district under the terms of this chapter. Use variances involve a use of land not allowed in a district under the terms of this chapter.

(a)

Area variance.

[1]

Definition. "Area variance" shall mean the authorization by the Zoning Board of Appeals for the use of land in a manner which is not allowed by the dimensional or topographical requirements of this chapter.

[2]

Determination. The Zoning Board of Appeals, on appeal from an administrative decision or determination of the Town of Liberty with respect to this chapter, shall have the power to grant variances from the area or dimensional requirements of this chapter. In making its determination to grant area variances, the Zoning Board of Appeals shall take into consideration the benefit to the applicant i f 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 Zoning Board of Appeals 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.

[e]

Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the Zoning Board of Appeals but shall not necessarily preclude the granting of the area variance.

[3]

Minimum variance. The Zoning 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.

(b)

Use variance.

[1]

Definition. "Use variance" shall mean the authorization by the Zoning Board of Appeals for the use of land in a manner or for a purpose which is otherwise not allowed or is prohibited by the applicable regulations of this chapter.

[2]

Determination. The Zoning Board of Appeals, on appeal from an administrative decision or determination of the Town of Liberty with respect to this chapter, shall have the power to grant use variances, authorizing a use of the land which otherwise would not be allowed or would be prohibited by the terms of this chapter. No such use variance shall be granted by the Zoning Board of Appeals without a showing by the applicant that the applicable regulations and restrictions of this chapter have caused unnecessary hardship. In order to prove such unnecessary hardship, the applicant shall demonstrate to the Zoning Board of Appeals that:

[a]

Under the applicable regulations of this chapter, the applicant is deprived of all economic use or benefit from the property in question, which deprivation must be established 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 district or neighborhood.

[c]

The requested variance, if granted, will not alter the essential character of the neighborhood.

[d]

The alleged hardship has not been self-created.

[3]

Minimum variance. The Zoning Board of Appeals, in 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.

(c)

Imposition of conditions. The Zoning Board of Appeals shall, in 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 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 such variance may have on the neighborhood or community.

Requirements applicable to other appeals.

(1)

Interpretations. The Town Board, Code Enforcement Officer or Planning Board of the Town of Liberty may request the Zoning Board of Appeals to decide any question involving the interpretation of any provision of this chapter and shall refer such other matters to the Zoning Board of Appeals as it is required to decide by the provisions of this chapter. The Zoning Board of Appeals' rules and regulations shall govern these matters. All matters to be referred to the Zoning Board of Appeals in such circumstances shall be in writing to the Zoning Board of Appeals secretary and shall be acted on within 90 days of the secretary's receipt of same.

(2)

Appeals from administrative acts. Any property owner, tenant, representative thereof or other person aggrieved by an administrative act of the Town of Liberty with respect to this chapter, who believes such decision to be in error, may appeal to the Zoning Board of Appeals.

(a)

Administrative act. An administrative act shall include any order, requirements, decision, interpretation or determination made by the Code Enforcement Officer. The Zoning Board of Appeals may reverse of affirm, wholly or partly, or may modify the order, requirement, decision, interpretation or determination as in its opinion ought to be made in the matter, and to that end shall have all the powers of the official from whom the appeal is taken.

(b)

Time for appeal. An appeal must be made to the Zoning Board of Appeals within 30 days after the filing of any order, requirements, decision, interpretation or determination made by the Code Enforcement Officer. The applicant must file a signed notice of appeal with the administrative official or body from whom the appeal is taken and with the secretary of the Zoning Board of Appeals. Such notice shall be made on forms provided for such purpose.

(c)

Application to Zoning Board of Appeals. The administrative official from whom the appeal is taken shall be responsible, at the direction of the Zoning Board of Appeals, for providing any applicant with the proper forms and for instructing the parties concerned on the proper manner for completing and filing such forms. All information required thereon shall be complete before an appeal is considered filed. Six copies of the proper appeal form shall be filed with the Zoning Board of Appeals.

Hearings.

(1)

Timing and notice. The Zoning Board of Appeals shall schedule a hearing on all appeals or applications within 62 days of the filing of the appeal or application. Public notice of the hearing shall be given at least five days prior to the date thereof by publication in a newspaper of general circulation in the Town. The cost of sending or publishing any notices relating to any appeal or application shall be borne by the appealing party and shall be paid to the Zoning Board of Appeals prior to the hearing.

(2)

General conduct of hearing. Any party may appear in person or by agent or by attorney. Irrelevant or unduly repetitious evidence or cross-examination may be excluded. Except as otherwise provided by statute, the burden of proof shall be on the party who is taking the appeal. No decision, determination, or order shall be made except upon consideration of the record as a whole or such portion thereof as may be cited by any party to the proceeding and as supported by an in accordance with substantial evidence.

(3)

Rules of evidence. Unless otherwise provided by statute, the Zoning Board of Appeals need not observe the rules of evidence observed by courts but shall give effect to rules of privilege recognized by law. Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, the Zoning Board of Appeals may, for the purpose of expediting a hearing and when the interests of the parties will not be substantially prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form.

(4)

Records and evidence. All evidence, including records and documents in the possession of the Zoning Board of Appeals or parties to the hearing, of which the former desires to avail itself, shall be made a part of the record, and all such documentary evidence may be received in the form of copies or excerpts or by incorporation by reference. In case of incorporation by reference, the materials so incorporated shall be available for examination by the parties before being received in evidence.

(5)

Cross-examination. A party shall have the right of cross-examination.

(6)

Official notice. Official notice may be taken of all facts of which judicial notice could be taken and of other facts within the specialized knowledge of the Zoning Board of Appeals. When official notice is taken of a material fact not appearing in the evidence in the record and of which judicial notice could be taken, every party shall be given notice thereof and shall, on a timely request, be afforded an opportunity prior to decision to dispute the fact or its materiality.

(7)

Rehearing. Upon a motion initiated by any member and adopted by unanimous vote of the members present, but not less than a majority of all members, the Zoning Board of Appeals may review at a rehearing any order, decision or determination of the Zoning Board of Appeals not previously reviewed. Notice shall be given as on an original hearing. Upon such hearing, and provided it shall appear that no vested rights due to reliance on the original order, decision or determination will be prejudiced thereby, the Zoning Board of Appeals may, upon concurrence of all members present, reverse, modify or annul its original order, decision or determination. Requests for rehearing, however, shall be made within 30 days of the original order, decision or determination.

Referral to County Planning Agency.

(1)

Prior to taking action on any matter which would cause any change in the regulations or use or land of buildings on a real property as specified in § 239-m of the General Municipal Law, the Board shall make referrals to the County Planning Agency.

(2)

If within 30 days after receipt of a full statement of such referred matter, the County Planning Agency recommends disapproval or modification thereof, the Zoning Board of Appeals shall not act contrary to such recommendation except by a vote of a majority plus one of all the members thereof and after adoption of a resolution fully setting forth the reasons for such contrary action. The Chairperson shall read the report of the County Planning Agency at a public meeting on the matter under review prior to the Zoning Board of Appeals deciding on the matter.

(3)

If the County fails to report within such period of 30 days or such longer period as may have been agreed upon by it and the referring agency, the Board may act without such report.

(4)

The Zoning Board of Appeals may also refer matters to the Town of Liberty Planning Board for review and recommendation, provided the Zoning Board of Appeals decides on the matter within 62 days after the close of the public hearing.

Decisions.

(1)

Time of decisions. Decisions by the Board shall be made not later than 62 days from the date of the final hearing.

(2)

Form of decisions. The final decision on any matter before the Board shall be made by written order signed by the chairperson. Such decision shall state the findings of fact which were the basis for the Board's determination. The Board may reverse or affirm, wholly or partly, or may modify the order or requirement of the administrative official appealed from. The decision shall also state any conditions and safeguards necessary to protect the public interest.

(3)

Basis for decisions. The Board, in reaching said decision, shall be guided by standards specified herein.

(4)

Content of findings. The findings of the Board and the supporting facts shall be spelled out in detail.

(5)

Expiration of approvals. Any order or decision by the Zoning Board of Appeals for a use that requires a building permit or a certificate of occupancy shall expire within 90 days if the applicable permit is not obtained. The Zoning Board of Appeals may extend this time an additional 90 days.

(6)

Filing of decisions. Decisions of the Board 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. The date of filing of each decision shall be entered in the official records and minutes of the Board.

(7)

Notice of decision. Copies of the decision shall be forwarded to the applicant, the Town Planning Board and the County Planning Agency when referral to the County Planning Agency is required in the particular case.

(8)

Certification of decision. A certified copy of the Board's decision, including all terms and conditions, shall be transmitted to the Code Enforcement Officer and shall be binding upon and observed by him and he shall fully incorporate such terms and conditions of the same in the permit to the applicant or appellant whenever a permit is authorized by the Board.

Miscellaneous.

(1)

The Zoning Board of Appeals is hereby authorized to adopt rules and regulations for the conduct of its business consistent with this chapter and state statutes.

(2)

All applications and appeals made to the Board of Appeals shall be in writing on forms prescribed by the Board and signed by the applicant. Every application or appeal shall refer to the specific provision of this chapter involved and shall exactly set forth the interpretation that is claimed, the plans associated with and the details of the variance that is applied for, in addition to the following information:

(a)

The name and legal permanent address of the applicant or appellant and telephone number if available.

(b)

The name and address of the owner of the district lot to be affected by such proposed change or appeal.

(c)

A brief description (or copy of survey or tax map number) and location of the district lot to be affected by such proposed change or appeal.

(d)

A statement of the present zoning classification of the district lot in question, the improvements thereon and the present use thereof.

(e)

A reasonable accurate description of the proposed improvements and the additions or changes intended to be made under the application, indicating the size of such proposed improvements, material and general construction thereof. In addition, there shall be attached a plot plan of the real property to be affected, indicating the location and size of the lot and size of the improvements thereon and proposed to be erected thereon.

(3)

When a notice of appeal in any case where a permit had been granted or denied by the Code Enforcement Officer shall be filed, the Code Enforcement Officer shall forthwith transmit to the Zoning Board of Appeals all papers constituting the record upon which the action appealed from was taken or, in lieu thereof, certified copies of said papers.

(4)

An appeal shall stay all proceedings in furtherance of the action appealed from unless the Code Enforcement Officer certifies to the Zoning Board of Appeals, after the notice of appeal shall have been filed, that by reason of facts 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 Zoning Board of Appeals or the Supreme Court on application, on notice to the Code Enforcement Officer and on due cause shown.

(5)

Any person aggrieved by a decision of the ZBA may apply to the State Supreme Court for review by proceedings under Article 78 of the Civil Practice Law and Rules. Such proceedings must be instituted within 30 Days after the filing of a decision in the office of the Town Clerk.

(6)

Whenever the Board, after hearing all the evidence presented upon an application or appeal under the provisions of this chapter, denies the same, the Zoning Board of Appeals shall refuse to hold further hearings on the said or substantially similar application or appeal by the same applicant, his successor or assign for a period of one year, unless the Zoning Board of Appeals shall find and determine from the information supplied by the request for a rehearing that changed conditions have occurred relating to the promotion of the public health, safety, convenience, comfort, property and general welfare and that a reconsideration is justified.