Article XIV Administration and Enforcement

Requirement. It shall be unlawful to commence the excavation for or the construction of any building or structure, including accessory buildings, or to commence the moving or alteration of any building or structure, including accessory buildings, until the Code Enforcement Officer has issued a permit for such work.

Issuance. In applying to the Code Enforcement Officer for a building permit, the applicant shall submit specifications and a dimensioned plan to scale, indicating the shape, size, height and location in exact relation to all property lines and to street and road lines, of all building or structures to be erected, altered or moved and of any building or structure already on the lot. This plan shall be accompanied by a written statement from a qualified engineer or other satisfactory evidence to the effect that the line of the bounding street or road has been accurately located and staked on the ground. The applicant shall also state the existing or intended occupancy and use of all such buildings and land and supply other information as may be required by the Code Enforcement Officer to ensure that the provisions of this chapter are being observed. If the proposed excavation or construction or alteration or moving as set forth in the application is in conformity with the provisions of this chapter and other ordinances of the Town then in force, the Code Enforcement Officer shall issue a permit for such excavation, construction, alteration or moving.

Refusal. If a building permit is refused, the Code Enforcement Officer shall state such refusal, in writing, with the cause and shall immediately mail notice of such refusal to the applicant at the address indicated on the application.

Fees to be charged for the issuance of a permit as contemplated by this section shall be calculated and determined as provided on a separate rate or fee schedule, as such schedule is adopted and amended by the Town Board from time to time. Said rate or fee schedule may differentiate based upon the nature of the proposed construction, such that residential construction fees may be different from other fees attributable to nonresidential types of construction.

(5)

Effect. The issuance of a permit shall in no case be construed as waiving any provision of this chapter.

(6)

Term.

A building permit shall become void six months from the date of issuance unless substantial progress has been made since the date on the project described therein; provided, however, that the building permit may be renewed for an additional six months upon application therefor without the payment of an additional fee.

Upon written request submitted to the Code Enforcement Officer, a building permit may be extended for only one successive one-year period, provided that:

The permit has not been revoked or suspended at the time the application for renewal is submitted;

A new application fee is paid in an amount equal to the original building permit fee paid by the original permit applicant;

The Code Enforcement Officer inspects the property and can certify that substantial progress has been made toward completion of the project or work contemplated by the building permit since the date of the initial application and any subsequent renewal; and

[4]

The applicant shall supply all necessary or required materials requested of the applicant by the Code Enforcement Officer to justify proof of ongoing progress toward completion of the project or work contemplated by the building permit.

Certificate of occupancy.

Requirement. No land or building or other structure or part thereof hereafter erected or altered in its use or structure shall be used or occupied until the Code Enforcement Officer shall have issued a certificate of occupancy stating that such land, building, structure or part thereof and the proposed occupancy or use thereof are found to be in conformity with the provisions of this chapter.

Issuance. Within five days after notification that a building or structure or premises or part thereof is ready for occupancy or use, it shall be the duty of the Code Enforcement Officer to make a final inspection thereof and issue a certificate of occupancy if the land, building, structure or part thereof is found to conform with the provisions of this chapter.

Refusal. If the Code Enforcement Officer after such final inspection refuses to issue a certificate of occupancy, he shall state such refusal, in writing, with the cause and immediately thereupon mail notice for such refusal to the applicant at the address indicated on the application.

The Code Enforcement Officer may issue a temporary certificate of occupancy if the building or structure or planned improvement requiring a certificate of occupancy is sufficiently complete that it may be put to the use for which it is intended and complies or substantially complies with all New York State Building Code requirements and local laws and regulations, but is nevertheless not in full compliance with all code requirements in some manner than cannot be reasonably completed within a reasonable period of time due to uncontrollable weather conditions. A temporary certificate of occupancy shall expire six months after the date of its issuance, or any earlier date so specified and endorsed on the temporary certificate of occupancy by the Code Enforcement Officer. The Code Enforcement Officer may place special conditions on the temporary certificate of occupancy as shall by said Officer be reasonably deemed necessary to ensure safety and to protect the general welfare and interests of the property owner and/or the Town of Lima and its residents.

§ 250-100 Board of Appeals.

Creation, composition and appointment.

Creation. A Board of Appeals is hereby established in accordance with § 267 of the Town Law.

Composition. The Board of Appeals may consist of five members.

Appointment. The Town Board shall appoint the members of the Board of Appeals and shall designate its Chairman. No person who is a member of the Town Board shall be eligible for membership on such Board of Appeals. Of the members of the Board first appointed, one shall hold office for the term of one year; one for the term of two years; one for the term of three years; one for the term of four years and one for the term of five years from and after his appointment. Their successors, including such additional members as may be appointed by the Town Board, shall be appointed for the term of five years from and after the expiration for the term of their predecessors in office.

Removal. The Town Board shall have the power to remove any member of the Appeals Board for cause.

(5)

Vacancies. Vacancies shall be filled by the Town Board. If vacancies shall occur otherwise than by the expiration of term, it shall be filled by appointment for the unexpired term.

(6)

Compensation. The Town Board may provide for compensation to be paid to Appeals Board members, experts, clerks, a secretary and for other such expenses as may be necessary and proper.

General procedures.

Meetings. 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. All meetings of such Board shall be open to the public.

Oaths. The Chairman or, in his absence, the Acting Chairman may administer oaths and compel the attendance of witnesses.

Minutes. The 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 examination and other official actions. Every rule, regulation, every amendment or repeal thereof and every order, requirement, decision or determination of the Board of Appeals shall immediately be filed in the office of the Town Clerk and shall be a public record.

Powers. The Board of Appeals shall have the following powers:

Administrative review. To hear and decide appeals from and review any order, requirement, decision or determination made by the Code Enforcement Officer or other administrative officer in carrying out or enforcing any provision of this chapter. The concurring vote of a majority of the members of the Board shall be necessary to reverse any order, requirement, decision or determination of any such administrative official or to decide in favor of the applicant any matter upon which it is required to pass under any such ordinance.

Special exceptions. To hear and decide applications for special use permits as specified in § 250-65 of this chapter and to authorize issuance of special permits as specifically provided therein. A majority vote of the members of the Board of Appeals shall be necessary to grant a special permit.

Variances. The Board of Appeals shall have the authority, on appeal from the decision or determination of the Code Enforcement Officer, or otherwise as contemplated by this chapter, to grant use variances and area variances, subject to and upon the terms and conditions set forth herein.

[Amended 9-1-2011 by L.L. No. 8-2011; 4-3-2014 by L.L. No. 2-2014]

Use variances.

No use variance shall be granted unless, in addition to satisfying all other applicable provisions of law and this chapter, the Board of Appeals finds that otherwise applicable zoning regulations and restrictions have caused unnecessary hardship.

[a]

Unnecessary hardship. In order to prove such unnecessary hardship, the applicant is required to clearly demonstrate to the Board of Appeals that, with respect to every permitted use under the zoning regulations for the particular district where the property is located, each and every of the following four criteria is satisfied: i) the applicant cannot realize a reasonable return on the entire parcel of property, and such lack of return is substantial as demonstrated by competent financial evidence; ii) 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 involved; iii) that the requested use variance, if granted, will not alter the essential character of the neighborhood; and iv) that the alleged hardship has not been self-created.

[b]

Reasonable rate of return. In evaluating whether the applicant can realize a reasonable rate of return, the Board of Appeals shall examine whether the entire original or expanded property holdings of the applicant are incapable of producing a reasonable rate of return (and not just the site of the proposed project). No use variance shall be granted unless, in addition to satisfying all other applicable provisions of law and this chapter, the Board of Appeals finds that the applicant has clearly demonstrated, by detailed, written "dollar and cents" proof, the inability to obtain a reasonable return for the entire parcel (and not just the site of the proposed project) and for each and every permitted use in the district (including those uses permitted by special use permit).

[c]

Unique hardship. No use variance shall be granted unless, in addition to satisfying all other applicable provisions of law and this chapter, the Board of Appeals finds that the entire parcel of which the project is a part possesses unique characteristics that distinguish it from other properties in the area.

[d]

Essential character of neighborhood. No use variance shall be granted unless, in addition to satisfying all other applicable provisions of law and this chapter, the Board of Appeals finds that the proposed project will not alter the essential character of the neighborhood. In making its determination of whether the proposed project will alter the essential character of the neighborhood, the Board of Appeals shall take into account factors that are of vital importance to the citizens of the Town, including without limitation: i) the rural residential, agricultural and historic character of the Town; ii) its irreplaceable recreation and tourism sites; iii) the extent of hazard to life, limb or property that may result from the proposed project; iv) health impacts; v) the social and economic impacts of traffic congestion, noise, dust, odors, emissions, solid waste generation and other nuisances; vi) the impact on property values; and vii) whether the applicant will use a style of development that will result in degradation to the air quality, water quality or scenic and natural resources of the Town. In order to find that the proposed project does not alter the essential character of the neighborhood, the Board of Appeals shall interpret the public interest in said essential character of the neighborhood to require, at a minimum, that the project will not do any of the following: i) pose a threat to the public safety, including public health, water quality or air quality; ii) cause an extraordinary public expense; or iii) create a nuisance.

[e]

Self-created hardship. No use variance shall be granted unless, in addition to satisfying all other applicable provisions of law and this chapter, the Board of Appeals finds that the alleged hardship was not self-created. The Board of Appeals may find that the applicant suffers from a self-created hardship in the event that the Board finds that i) the applicant's inability to obtain a reasonable return on the property as a whole results from having paid too much or from a poor investment decision; ii) the applicant previously divided the property and is left with only a portion which suffers from some unique condition for which relief is sought and which did not apply to the parcel as a whole; or iii) when the applicant purchased the property, he or she knew or should have known the property was subject to the zoning restrictions.

The Board of Appeals, in the granting of use variances, shall grant only the minimum variance that it shall deem necessary and adequate to allow an economically beneficial use of the property, and at the same time preserve and protect the essential character of the neighborhood and the health, safety and welfare of the community.

The Board of Appeals, in the granting of use variances, shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed project. 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 use variance may have on the neighborhood or community. Such conditions may include, but are not limited to, landscaping, lighting, access and egress, signs, screening, architectural features, location and layout of buildings, limitations upon the use or characteristics of the use which are reasonably related to the public health, safety and general welfare and as may be necessary to carry out the intent of this chapter. If the applicant refuses to accept such requirements and conditions, the use variance shall be denied.

Area variances.

In making a determination whether to grant, grant conditionally, or deny an application for an area variance, the Board of Appeals shall take into consideration the benefit to the applicant if the area variance is granted, and balance this benefit against the detriment to the health, safety and welfare of the neighborhood or community by making such grant. In making such determination, the Board shall consider each of the following factors: 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 area variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and e) whether the alleged difficulty was self-created. (In contrast to the context of a use variance, in the context of an area variance application, whether or not the alleged difficulty was self-created shall be relevant to the decision of the Board of Zoning Appeals, but a finding that the difficulty was self-created shall not in and of itself preclude the granting of the area variance.)

The Zoning Board of Appeals, in the granting of use variances, shall grant only the minimum variance that it shall deem necessary and adequate to allow an economically beneficial use of the property, and at the same time preserve and protect the essential character of the neighborhood and the health, safety and welfare of the community.

The Zoning Board of Appeals, in the granting of use variances, shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed project. 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 use variance may have on the neighborhood or community. Such conditions may include, but are not limited to, landscaping, lighting, access and egress, signs, screening, architectural features, location and layout of buildings, limitations upon the use or characteristics of the use which are reasonably related to the public health, safety and general welfare and as may be necessary to carry out the intent of this chapter. If the applicant refuses to accept such requirements and conditions, the use variance shall be denied.

(c)

Use variances and area variances: compliance with General Municipal Law § 239-m; referral to Planning Board. The Zoning Board of Appeals, in the granting of variances, shall comply with General Municipal Law § 239-m. Prior to granting, denying, or conditionally granting any application for a variance, the Board of Appeals shall refer the variance request to the Planning Board for the Planning Board's nonbinding recommendation regarding such application. So long as the Planning Board's nonbinding recommendation is received by the Zoning Board of Appeals no later than 30 days following initial referral of such matter to the Planning Board, a summary of said nonbinding recommendation shall be read aloud at the meeting of the Zoning Board of Appeals where the ZBA votes to grant, deny, or conditionally grant the variance in question, and a copy of the entire recommendation report of the Planning Board shall be included within the minutes of the Board of Appeals' meeting.

Reference to Livingston County Planning Board. In accordance with the policy and procedures provided for by Chapter 24, Article 12B, §§ 239-l and 239-m of the General Municipal Law, any special permit or variance affecting real property lying within a distance of 500 feet of the boundary of the Town of Lima or from the boundary of any existing or proposed county or state park or other recreational area or from the right-of-way of any existing or proposed county or state parkway, thruway, expressway, road or highway or from the existing or proposed right-of-way of any stream or drainage channel owned by the county, for which the county has established channel lines, or from the existing or proposed boundary of any county or state-owned land on which a public building or institution is situated shall be referred to the Livingston County Planning Board. The term "proposed" shall be deemed to include only those recreation areas, parkways, thruways, expressways, roads or highways which are shown on a county plan of Livingston County adopted pursuant to Subdivision 2 of § 239-d of the General Municipal Law. If the Livingston County Planning Board fails to report within 30 days after receipt of a full statement of such referred material, the Board of Appeals may act without such report. If the Livingston County Planning Board disapproves the proposal or recommends modifications thereof, the Board of Appeals shall not act contrary to such disapproval or recommendation except by a vote of a majority plus one of all members thereof and after the adoption of a resolution setting forth the reason for the contrary action.

Special procedures relative to appeal for administrative review, variance or application for a special permit.

Who may appeal. An appeal to the Board of Appeals for administrative review, variance or application for a special permit may be taken by any person, firm or corporation aggrieved or by any governmental officer, department, board or bureau affected by any decision of the Code Enforcement Officer based in whole or in part upon the provisions of this chapter. Such appeal shall be taken by filing with the Board of Appeals a notice of appeal specifying the grounds thereof. The Code Enforcement Officer shall forthwith transmit all papers constituting the record upon which the action appealed from was taken to the Board of Appeals.

Time of appeal. Said notice of appeal shall be filed within 60 days from the date upon which the notice of refusal of a building permit or refusal of a certificate of occupancy is mailed by the Code Enforcement Officer, and failure to file notice of appeal within 60 days shall constitute a waiver of the right to appeal.

Stay of proceedings. An appeal stays all proceedings in furtherance of the action appealed from, unless the Code Enforcement Officer from whom the appeal is taken certifies to the Board of Appeals after the notice of appeal shall be filed with him 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 Board of Appeals or by a court of record on application, on notice to the Code Enforcement Officer and on due cause shown.

Hearing, notice, public notice, notice to property owner and costs.

Hearing. The Board of Appeals shall fix a reasonable time for the hearing of any application for a variance, the hearing of an appeal for administrative review or the application for a special permit.

Notice.

Public notice shall be published to all parties to advise of the time, date and place of the required variance hearing or for any other appeal for administrative review of special permitted use in the following manner:

At least five days but no more than 20 days before the hearing, notice shall be published in the official paper of the Town to advise of the nature of the application, the name of the applicant and the time and place of the public hearing;

At least five days but no more than 20 days before the hearing, written notice equivalent to that published in the official paper shall be mailed by regular mail to all property owners located within 500 feet of the lot lines of the proposed site which is the subject of the hearing; and

At least 10 days before the date of hearing and at times thereafter up to and including the time of the public hearing, a sign shall be posted on the proposed site which is the subject of the hearing, identifying the site as the subject of such hearing. The sign shall be displayed and clearly visible from the street line and no further from the street line than 15 feet.

The sign shall be posted and installed by the Code Enforcement Officer, but said Officer's duty shall not extend beyond the posting of said sign, and it shall be the exclusive responsibility of the applicant to make certain that the sign remains erect and visible.

(c)

Failure to properly notify all interested parties as noted herein shall result in postponement of the public hearing until all notice provisions are complied with.

Decision and costs. Upon the hearing, any party may appear in person or by agent or by attorney, and the Board of Appeals shall decide the application for variance or appeal for administrative review or the application for a special permit within 62 days after the final hearing as provided by Town Law, Subdivision 8 of § 267-a. All costs of such publication and notice shall be paid by the applicant.

Provisions of appeal. If the variance is granted or the issuance of a permit is finally approved or other action by the appellant or applicant is authorized, the necessary permits shall be subject to the terms of § 250-99A(6). Should the appellant or applicant fail to comply with the provisions, it shall be conclusively presumed that the appellant or applicant has waived, withdrawn or abandoned his appeal or his application, and such permissions, variances and permits to him granted shall be deemed automatically rescinded by the Board of Appeals.

Scope.

In exercising the above-mentioned powers, such Board of Appeals may, in conformity with the provision of this article, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and shall make such order, requirement, decisions or determination as in its opinion ought to be made in the premises, and to that end shall have the powers of the officer from whom the appeal is taken. Notice of such decision shall be given forthwith to all parties in interest.

[Intentionally omitted.]

[Amended 4-3-2014 by L.L. No. 2-2014]

Recourse. Any person or persons, jointly or severally aggrieved by any decision of the Board of Appeals or of any officer, department, board or bureau of the Town may apply to the Supreme Court for relief by a proceeding under Article 78 of the Civil Practice Law and Rules.

It must be instituted within 30 days after the filing of a decision in the office of the Town Clerk.

The court may take evidence or appoint a referee to take such evidence as it may direct and report the same with his findings of fact and conclusions of law, if it shall appear that testimony is necessary for the proper disposition of the matter.

The court at special term shall itself dispose of the cause on the merits, determining all questions which may be presented for determination.

§ 250-101 Planning Board.

Creation and membership.

There is hereby established a Planning Board having the powers authorized under the Consolidated Laws of the State of New York. Said Board shall consist of five members, appointed by the Town Board. An appointment to a vacancy occurring prior to expiration of term shall be for the remainder of the unexpired term.

In making such appointments, the Town Board may require Planning Board members to complete training and continuing education courses in accordance with any local requirements for the training of such members. The Town Board may reimburse the members for appropriate expenses incurred in obtaining training.

The Town Board shall have the power to remove any member of the Planning Board for cause, including noncompliance with minimum requirements relating to meeting attendance and training as established by the Town Board by local law.

The Town Board shall select a Chairman of the Planning Board or, on failure to do so, the Planning Board shall elect a Chairman from its own members.

Powers and duties of the Planning Board. The Planning Board shall have the following powers and duties:

To review and recommend revisions to the Comprehensive Plan for the development of the Town as provided under § 272-a of Town Law and/or Town Board resolution.

To review and comment on all proposed zoning amendments and special use permit applications and to make investigations, maps, reports and recommendations relating to the planning and development of the Town as it deems desirable. This shall include but not be limited to changes in boundaries of districts, recommended changes in the provisions of this chapter, other land use and development matters of importance to the Planning Board, and to act on any matter lawfully referred to it by the Town Board.

To review site plans as authorized by New York State Town Law and prescribed in Article XV of this chapter.

To review proposals to approve or disapprove the laying out, closing off, abandonment or changes in lines of streets, highways and public areas and to make recommendations to the Town Board.

(5)

To review, act on or provide advisory reports as specified by this chapter.

(6)

To make referrals to other Town departments, boards and/or officials to request advisory opinions to assist the Planning Board in making decisions which affect the development of the Town.

(7)

All such powers and duties as are conferred upon town planning boards and subject to the limitations set forth in §§ 272, 272-a, 274, 274-a, 275, 276, 277, 278, and 281 of the New York State Town Law, as the same may be amended, modified, or changed from time to time, or any sections subsequently adopted pertaining to planning boards.

Planning Board office. The office of the Code Enforcement Officer shall be the office of the Planning Board. Every rule, regulation, amendment or repeal thereof and every order, requirement, decision or determination of the Board shall immediately be filed in said office as required by the Town Law of the State of New York. The Planning Board shall keep minutes of its proceedings, showing the vote, indicating such fact, and shall keep records of its environmental reviews and determination, its examinations and other official actions.

Alternate members.

Declaration of policy. It is sometimes difficult to maintain a quorum on the Planning Board because members are ill, on extended vacation or find they have a conflict of interest situation on a specific matter before the Board. In such instances, official business cannot be conducted, which may delay or impede adherence to required time lines. The use of alternate members in such instances is hereby authorized.

Definitions. As used in this section, the following terms shall have the meanings indicated:

ALTERNATE MEMBER

An individual appointed by the Town Board to serve on the Town Planning Board when a regular member is unable to participate on an application or matter before the Board, as provided herein.

MEMBER

An individual appointed by the Town Board to serve on the Town Planning Board pursuant to the provisions of the local law or ordinance which first established such Planning Board.

PLANNING BOARD

The Planning Board of the Town of Lima as established by the Town Board, pursuant to the provisions of § 271 of the Town Law.

Process and effect.

Alternate members shall serve when members are absent or unable to participate on an application or matter before the Board.