Town of North Collins, NY Article XII Board of Appeals

§ 265-44 Creation and organizations.

[Amended 12-4-1991 by L.L. No. 2-1991; 9-4-1996 by L.L. No. 3-1996]

A Board of Appeals consisting of five members, as constituted and empowered under § 267 of Article 16 of the Town Law, shall be established. Vacancies occurring in such Board shall be filled in accordance with the Town Law. The Board of Appeals shall have all the powers and perform all the duties prescribed by statute and by this chapter.

§ 265-45 Powers and duties.

A. Appellate jurisdiction.

(1) Appeals for interpretation. The Board of Appeals shall hear and decide appeals where it is alleged that there is an error or misinterpretation in any order, requirement, decision or determination by any administrative official of the Town of North Collins charged with the enforcement of the provisions of this chapter. The Board of Appeals may reverse, modify or affirm, in whole or in part, any such appealed order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as, in its opinion, ought to be made in strictly applying and interpreting the provisions of this chapter and for such purposes shall have all the powers of the officer from whom the appeal is taken.

(2) Appeals for variances.

(a) On an appeal from an order, requirement, decision or determination of any administrative official charged with the enforcement of this chapter, where it is alleged by the appellant that there are practical difficulties or unnecessary hardship in the way of carrying out the strict application of any provision of this chapter, the Board of Appeals may grant a use or area variance in the strict application of such provisions in accordance with Town Law § 267-b.[1]

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

(b) The following types of cases shall be construed as eligible for consideration within the meaning of this chapter:

[1] Unusual size or shape of lot: where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property at the time of the effective date of this chapter or by reason of exceptional topographic conditions or other exceptional physical difficulties in the development of such piece of property, the literal enforcement of the requirements of this chapter pertaining to yards or other space relationships would result in peculiar practical difficulties or exceptional undue hardship upon the owner of such property. No use variance shall be granted in such case, in accordance with the provisions of § 267-b of the Town Law.

[Amended 12-4-1991 by L.L. No. 2-1991[2]]

[2] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

[2] Adjacent nonconforming uses:

[a] Where, adjacent to a lot on both sides in the case of an interior lot or on both the side and rear of the lot or on all other corners of an intersection in the case of a corner lot, there are buildings or uses which do not conform to regulations prescribed in this chapter for the zoning district in which said lot is located.

[b] In considering such appeal, the Board of Appeals shall give due regard to the nature and conditions of all adjacent uses and structures; and in granting any such appeal, the Board of Appeals may impose special requirements and conditions for the protection of conforming uses and the ultimate removal of nonconforming uses and structures. In any case, the variance as to the use or uses permitted on any lot, whether principal or accessory, shall not allow a use or combination of uses more intensive or less restricted than any use which is legally existing on the premises immediately adjacent on either side of said lot or of premises on any other corner of the intersection in the case of a corner lot.

[3] Nonconforming building:

[a] Where, because the principal building on any premises was originally lawfully erected and intended for a principal use which would now be a nonconforming use in the zoning district in which located and the right to continue or reestablish such nonconforming use in such building is denied by the provisions of Article X of this chapter, the literal enforcement of such provisions would result in peculiar and exceptional practical difficulties or exceptional and undue hardship upon the owner of such property.

[b] In considering such appeal, the Board of Appeals shall give due regard to the age and condition of such building and its adaptability for or convertibility to a conforming use. In approving any such appeal, the Board of Appeals shall specify the time limit during which such grant of a variance shall be effective, which time limit shall in no case exceed the estimated useful life of such building. In case the building has been condemned by the Code Enforcement Officer and ordered to be demolished, the Board of Appeals shall not grant any such appeal.

[4] Any other case involving practical difficulties or unnecessary hardship in the way of carrying out any provision of this chapter pursuant to and in accord with the intent and purpose of Subdivision 5 of § 267-b of Article 16 of the Town Law.[3]

[3] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

(3) In granting a variance, the Board of Appeals may vary or modify the provisions of this chapter so that the spirit of the law shall be observed, public safety secured and substantial justice done. Toward this end, the Board of Appeals may prescribe such conditions or restrictions as it may deem necessary. Such conditions or restrictions shall be incorporated into the building permit and the certificate of zoning compliance.

B. Original jurisdiction.

(1) General provisions.

(a) The Board of Appeals shall hear and decide, in accordance with the provisions of this chapter, all applications for special permits or for modifications of provisions of this chapter in all such cases upon which the Board of Appeals is specifically authorized to pass or to make any other determination required by this chapter.

(b) In authorizing any specified special permit or specified modification or in making any required determination all required findings shall be made, and, in the case of special permits or modifications, the Board of Appeals may prescribe appropriate conditions to minimize adverse effects on the character of the surrounding area and to safeguard the public health, safety, convenience or general welfare.

(c) No special permit or modification of the provisions of this chapter shall be authorized by the Board of Appeals unless, in addition to other findings specified in this chapter, it finds that such special permit or modification:

[1] Will be in harmony with the general purposes and intent of this chapter.

[2] Will not tend to depreciate the value of adjacent property.

[3] Will not create a hazard to health, safety or the general welfare.

[4] Will not alter the essential character of the neighborhood nor be detrimental to the residents thereof.

[5] Will not otherwise be detrimental to the public convenience and welfare.

(2) Special permits.

(a) Temporary structures or uses. The Board of Appeals may authorize a temporary and revocable permit, for not more than two years, for uses or structures that do not conform with the regulations of this chapter for the district in which they are located, provided that the following findings are made:

[1] That such use is of a temporary nature and does not involve the erection or enlargement of any permanent structure.

[2] In case of a renewal of such permit, that all conditions and safeguards previously required have been complied with.

(b) Permitted temporary structures or uses, extension of time limit. The Board of Appeals may authorize the continuation of temporary structures or uses incidental to construction work, provided that the following findings are made:

[1] That the nature and scale of the construction is such as to require a longer period of time for completion.

[2] That such construction has been diligently prosecuted or that any delays have been unavoidable.

(c) Accessory business signs and institutional signs.

[1] The Board of Appeals may authorize one nonflashing business sign which identifies a group of stores or a shopping center and one nonflashing church or school bulletin board or other identification sign, provided that the following findings are made:

[a] That such sign will not constitute a traffic hazard.

[b] That such sign shall have a minimum adverse effect on adjacent residential properties, if any.

[2] In authorizing any such sign, the Board of Appeals shall determine the height, size and type of illumination as well as the location of such sign on the lot. See also Chapter 200, Signs.

[Amended 12-4-1991 by L.L. No. 2-1991]

(3) Modification of regulations.

(a) Reduction of parking spaces for places of assembly. The Board of Appeals may authorize a reduction of not more than 50% in the number of required off-street parking spaces for places of assembly when located on the same lot with other uses, provided that the following findings are made: that, in accordance with times of operation and times of peak demand, there will be no conflict in the joint use of such off-street parking spaces.

(b) Reduction of parking spaces where public off-street parking facilities are available. Where public off-street parking facilities are available, other than parking provided for a public building, the Board of Appeals may reduce on a pro rata basis the parking requirements for all uses within 600 feet of any boundary of such public parking facility.

(c) Exception from exterior side yard requirement. The Board of Appeals may modify the exterior side yard requirements for principal buildings on deep corner lots, provided that the following findings are made:

[1] That the rear yard is at least 50 feet in depth.

[2] That such modification will not adversely affect the adjoining property.

(d) Exception from fence height limitations. The Board of Appeals may permit a fence up to eight feet in height in any rear yard, not a front yard equivalent, or in any side yard, not a required side yard, provided that such fence is at least 10 feet from any property line and that the following findings are made:

[1] That such fence shall not unduly shut out light or air to adjoining properties.

[2] That such a fence shall not create a fire hazard by reason of its construction or location.

§ 265-46 Procedures.

A. General provisions. The Board of Appeals, consistent with law and ordinance, may adopt rules of conduct and procedure.

B. Filing appeals. An appeal to the Board of Appeals from any ruling of any administrative officer charged with the enforcement of this chapter may be taken by any officer, department or board of the Town. Such appeal shall be taken, within such time as shall be prescribed by the Board by general rule, by filing with the officer from whom the appeal is taken and with the Board of Appeals a notice of appeal, specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken.

C. Filing applications. An application for any matter upon which the Board of Appeals is required to pass may be made to the Code Enforcement Officer by the owner, the tenant of the property or a duly authorized agent for which such appeal or application is sought.

D. Meetings, witnesses and records.

(1) Meetings of the Board shall be held at the call of the Chairman and at such other times as the Board of Appeals may determine. All meetings shall be open to the public.

(2) The Chairman of the Board of Appeals or, in his absence, the Acting Chairman may administer oaths and compel the attendance of witnesses.

(3) 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 keep records of its examinations and other official actions. Every rule or 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.

E. Stay of proceedings. Any appeal to the Board of Appeals shall stay all proceedings in furtherance of the action appealed from, except as otherwise provided in Subdivision 6 of § 267-a of Article 16 of the Town Law.[1]

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

F. Public hearing and rehearing.[2]

(1) The Board of Appeals shall fix a reasonable time for a hearing of an appeal, applications for special permits or modifications of regulations or other matters referred to it and shall give public notice thereof in accordance with the provisions of Subdivision 7 of § 267-a of Article 16 of the Town Law.

(2) There shall be no rehearing of an appeal or application by the Board of Appeals, except in accordance with Subdivision 12 of § 267-a of Article 16 of the Town Law.

[2] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

G. Decisions of the Board of Appeals.

(1) The concurring vote of a majority of the members of the Board of Appeals shall be necessary to reverse any order, requirement, decision or determination of the Code Enforcement Officer or to decide in favor of the applicant on any matter upon which it is required to pass under this chapter or to effect any variation in this chapter.

(2) Every decision of the Board of Appeals shall be by resolution. Where findings are required, the decision shall set forth each required finding, supported by substantial evidence or other data considered by the Board of Appeals in each specific case; or, in the case of denial, the decision shall include the findings which are not satisfied.

H. Violation of conditions or restrictions. Failure to comply with any condition or restriction prescribed by the Board of Appeals in approving any appeal for a variance or application for a special permit or a modification of regulations shall constitute a violation. Such violation may constitute the basis for revocation of a variance, special permit or modification or for penalties and other applicable remedies.

I. Lapse of authorization. Any variance, special permit or modification of regulations authorized by the Board of Appeals shall be automatically revoked unless a building permit conforming to all conditions and requirements established by the Board of Appeals is obtained within six months of the date of approval by the Board of Appeals and construction is commenced within one year of such date of approval.