Village of Whitesboro, NY Article VIII Zoning Board

§ 295-43 (Reserved) [1]

[1] Editor's Note: Former § 295-43, Establishment and composition, was repealed 11-25-2019 by L.L. No. 4-2020.

§ 295-44 Procedures.

The ZBA shall act in strict accordance with the procedure specified by law and by this chapter. All appeals and applications made to the ZBA shall be in writing on forms prescribed by the ZBA. Every appeal or application shall refer to the specific provision of the chapter involved and shall set forth the interpretation that is claimed, the details of the variance that is applied for or the use for which the special exception is sought and the basis thereof.

§ 295-45 Zoning Board bylaws.

A. General.

(1) All correspondence to the Zoning Board shall be mailed to:[1]

The Village of Whitesboro c/o Chairperson, Zoning Board 10 Moseley Street Whitesboro, New York 13492-1202

[1] Editor's Note: Former Subsection A(2), which set the meeting time and place for the Zoning Board of Appeals meetings, and which followed this subsection, was repealed 11-25-2019 by L.L. No. 4-2020.

(2) The Zoning Board shall meet on the third Tuesday of each month at 7:00 p.m., unless otherwise noted on the Village Clerk's calendar, at the Village offices located at 10 Moseley Street.

B. Applications.

(1) A copy of the denial letter issued to the appealing applicant shall accompany all applications. Applications shall be made within 60 days of the issuance of such a denial.

(2) All applications to the Zoning Board shall be on a form prescribed by the Codes Enforcement Officer and shall be available from the Village Clerk or Codes Enforcement Officer.

(3) All applications shall be accompanied by a to-scale drawing showing footprints of all existing and proposed structures on the property. Said structures shall be drawn complete with front, side and rear setback dimensions. The Zoning Board reserves the right to request this information be provided by a licensed surveyor or professional engineer.

(4) All variance applications shall be submitted with a short environmental assessment form. The Board reserves the right to request a long environmental assessment form.

C. Meetings.

(1) To be placed on the agenda for a meeting, an applicant must have all required materials submitted and fees paid at least 10 business days prior to the meeting.

(2) The agenda for all regular ZBA meetings shall follow the following format:

(a) Public hearings.

(b) Old business.

(c) New business.

(d) Administration matters (i.e., review of previous meeting minutes).

(3) The first meeting with an applicant:

(a) The Board shall allow the applicant time to share information the applicant may feel is prudent to their appeal.

(b) The Board shall determine whether a complete application has been submitted.

(c) Identify any additional information the board may require.

(d) Refer the matter to any other involved agencies, including but not limited to the Oneida County Zoning Board or Village Zoning Board if required.

(e) Establish a public hearing date. Public hearings shall only be set upon receipt of a complete application as determined by the ZBA.

(4) The second meeting with an applicant:

(a) A public hearing, as scheduled, shall be held. When information is found incomplete or further information is requested, the Board may hold open the public hearing and adjourn until the following meeting for submission of such information.

(b) The Board shall review any additional information submitted.

(c) The Board shall review all reports from, but not limited to, the Oneida County and/or Village Zoning Board to which the application was referred.

(d) The Board may consider whether or not to vote to approve or deny an application following the close of the public hearing. If the Board wishes to further consider the matter(s) at hand, it must vote within 62 days of the public hearing.

D. Variance criteria. The following criteria shall be met for an appeal to be considered.

(1) Use variance:

(a) Applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence.

(b) The alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the 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.

(2) Area variance:

(a) An undesirable change will be produced in the character of the neighborhood or granting the variance will create a detriment to nearby properties.

(b) The benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than a variance.

(c) The requested variance is substantial.

(d) The proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.

(e) The alleged difficulty was self-created, which consideration shall be relevant to the decision but shall not necessarily preclude granting the variance.

(3) If a variance is being considered, the ZBA shall grant the minimum variance deemed necessary and adequate to address the unnecessary hardship proven by the applicant, while preserving and protecting the character of the neighborhood and the health, safety and welfare of the community.

E. Presence of the applicant mandatory.

(1) No action will be taken on any application unless the owner or owner's legal representative is present.

(2) If for any application the ZBA has scheduled, the applicant or applicant's representative fails to appear, the applicant will be deemed to have consented to an extension for review at the next regularly scheduled meeting.

(3) In the event an applicant or applicant's representative fails to appear at two consecutive ZBA meetings on which his or her matter was scheduled to be discussed, the applicant will be deemed to have abandoned the application and the ZBA may vote to deny based on the applicant's abandonment of application.

§ 295-46 Meetings.

All meetings of the ZBA shall be held at the call of the Chairperson and at such other times as such Zoning Board may determine. The Chairperson or, in his/her absence, the Acting Chairperson may administer oaths and compel the attendance of witnesses. Meetings of the ZBA shall be open to the public. Such ZBA 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.

§ 295-47 Records.

All decisions of the ZBA shall be by resolution, and a copy of each decision shall be sent to the applicant, to the Village Clerk and to the Codes Enforcement Officer. Every rule, regulation, amendment or repeal thereof and every order, requirement, decision or determination of the ZBA shall immediately be filed in the office of the Board and shall be a public record. Each decision shall set forth fully the reasons for the decision of the ZBA and the findings of fact on which the decision was based. Such findings and reasons shall include references to the standards pertaining thereto where the appeal is for a variance or a special exception.

§ 295-48 Appeals.

A. The ZBA shall hear and decide appeals from and review any order, requirement, decision or determination made by the Codes Enforcement Officer. It shall also hear and decide all matters referred to it upon which it is required to pass under this chapter. The concurring vote of a majority of the ZBA shall be necessary to reverse any order, requirement, decision or determination of the Codes 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. Such appeal may be taken by any persons aggrieved or by an officer, department, board or bureau of the Village.

B. Such appeal shall be taken within 60 days or such additional time as shall be prescribed by the ZBA by general rule, by filing with the Codes Enforcement Officer and with the ZBA a notice of appeal, specifying the ground thereof. The Codes Enforcement Officer shall forthwith transmit to the ZBA all of the papers constituting the record upon which the action appealed was taken.[1]

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

§ 295-49 Stay of proceedings.

An appeal stays all proceedings in furtherance of the action appealed from unless the Codes Enforcement Officer from whom the appeal is taken certifies to the ZBA, after the notice of appeal shall have been filed with the Codes Enforcement Officer, that by reason of facts stated in the certificate a stay would in his/her opinion cause imminent peril to life or property; otherwise proceedings shall not be stayed except by a restraining order which may be granted by the ZBA or by a court of record on application, on notice to the officer from whom the appeal is taken and on due cause shown.

§ 295-50 Hearing and determination.

The Zoning Board shall fix a reasonable time for the hearing of the appeal and give due notice thereof to the parties and by publication at least once in the official newspaper seven days before the date of the hearing, and shall decide the same within 62 days from the date of public hearing. Upon the hearing, any party may appear in person or by legal agent or by attorney.

§ 295-51 Responsibility for costs of public hearings.

Each application for a variance, special exception, zone change, appeal or zoning amendment shall be accompanied by a fee to cover the costs of the public hearing, in an amount set by resolution of the Board of Trustees. No application will be accepted and no public hearing will be scheduled until such fee is deposited with the Village Clerk. The unused portion of such fee will be refunded to the applicant.

§ 295-52 Jurisdiction.

The Zoning Board shall have the following powers and duties prescribed by statute and by this chapter as described below:

A. Jurisdiction.

(1) Appellate jurisdiction:

(a) Appeals from the interpretation of the Codes Enforcement Officer.

(b) To grant a variance in case of unnecessary hardship or practical difficulty.

(2) Original jurisdiction: the granting of special exceptions for certain uses stated in the chapter.

B. Interpretation: on appeal from a determination of the Codes Enforcement Officer, to hear and decide on questions where it is alleged there is an error in any order, requirement, decision or determination made by the Codes Enforcement Officer involving the interpretation of any provision of this chapter.

C. Variance: on appeal from a determination of the Codes Enforcement Officer and in conformity with law, to vary the requirements as they apply to a particular lot where the property owner can show that his/her property was acquired in good faith and where the strict application of this chapter would result in practical difficulty or unnecessary hardship. No application for a variance shall be acted on until the required public hearing has been held. The Board of Appeals shall prescribe appropriate conditions and safeguards to carry out the requirements of this subsection and shall not grant any variance unless it shall make a finding of fact, based upon the evidence as presented to it, in each specific case, that:

(1) Because of exceptional narrowness, shallowness, shape or area of the specific parcel, or because of extraordinary topographic conditions or other physical condition or location of the specific parcel, the strict application of the provisions of this chapter actually prohibit or unreasonably restrict the use of the land or building for which such variance is sought; that the granting of the variance is necessary for the reasonable use of such property; and that the variance granted by the ZBA is the minimum variance that will provide for the reasonable use of the property; or

(2) The granting of the variance will alleviate a clearly demonstrable hardship as distinguished from a special privilege or convenience sought by the owner, which conditions are peculiar to such land or building and do not apply generally to land or buildings in the vicinity or neighborhood and have not resulted from any act of the applicant subsequent to the adoption of this chapter; and

(3) In any case, the granting of the variance will be in harmony with the intent and purpose of this chapter and will not constitute, in effect, an amendment of any district regulations or boundaries or uses and will not be injurious to the neighborhood.

D. Special exception, on application: Supplementing an application to the Codes Enforcement Officer for a permit or certificate of occupancy, the ZBA may authorize the Codes Enforcement Officer to grant a permit for any use for which approval of the ZBA is required by this chapter. The ZBA shall, pursuant to law, hold a public hearing on any such application prior to acting thereon. In authorizing such permit, the ZBA may designate appropriate conditions in harmony with the following standards:

(1) The use shall be of such location, size and character that it will be in harmony with the appropriate and orderly development of the district in which it is situated and will not be detrimental to the orderly development of adjacent districts and uses.

(2) The location and size of the use, the nature and intensity of the operations involved in or conducted in connection therewith, its site layout and its relation to streets giving access to it shall be such that traffic to and from the use and the assembly of persons in connection with it will not be hazardous or inconvenient to the neighborhood or conflict with the normal traffic of the neighborhood. In applying this standard, the ZBA shall consider, among other things, convenient routes of pedestrian traffic, particularly of children, relation to main traffic thoroughfares and to street and road intersections and the general character and intensity of development of the neighborhood.

(3) The location and height of buildings, the location, nature and height of walls and fences and the nature and extent of landscaping on the site shall be such that the use will not hinder or discourage the proper development and use of adjacent land and buildings or impair the value thereof.

§ 295-53 Special exceptions.

Special exceptions to be considered by the Zoning Board include the following:

A. Public utility station or structure. Such uses shall include electric substations, transformers, switches, auxiliary apparatus serving a distribution area and water pumping stations in any residential district and shall be subject to the following regulations:

(1) Such facility shall not be located on a residential street (unless no other site is available) and shall be so located as to draw a minimum of vehicular traffic to and through such streets.

(2) The location, design, and operation of such facility shall not adversely affect the character of the surrounding residential area.

(3) Adequate fences, barriers and other safety devices shall be provided and the facility shall be screen planted in accordance with the provisions of § 295-24.

B. Drive-in restaurant or refreshment stand. In addition to meeting the minimum yard and lot coverage requirements, such businesses where persons are served in automobiles or out-of-doors shall be subject to the following regulations:

(1) Such use shall have frontage on a public street.

(2) Ingress and egress shall be so designed as to minimize traffic congestion, and for this purpose the number and location of driveways shall be subject to review and approval of the ZBA.

(3) Such use shall be adequately fenced and screened from any adjacent residential property, and lighting shall be directed away from adjacent property.

C. Auto wash. In addition to meeting the minimum yard and lot coverage requirements, any auto wash establishment shall be subject to the following regulations:

(1) The wash water shall not pollute any stream nor create a hazard because of surface drainage.

(2) The number and location of driveways shall be subject to review and approval of the ZBA.

(3) Such establishment, in addition to meeting the off-street parking requirements of Schedule B in § 295-33J, shall provide four stacking spaces per bay on the lot to prevent the waiting of automobiles in the public street.

D. Commercial excavation. Except in a commercial excavation district and, except when incidental to the construction of a building on the same lot, the excavation, processing or sale of topsoil, earth, sand, gravel, clay or other natural deposits is subject to the following conditions:

(1) An application shall be made to the ZBA for a special exception for commercial excavation.

(2) In its consideration of said application, the ZBA shall find that such excavation will not endanger the stability of adjacent land or structures nor constitute a detriment to public welfare, convenience, or safety by reason of excessive dust, noise, traffic or other condition. The ZBA shall specify any reasonable requirements to safeguard the public health, safety and welfare in granting such permit, including the following:

(a) The slope of material in such topsoil, sand, gravel, clay or other earth shall not exceed the normal angle of repose of such material.

(b) The top and the base of such slope shall not be nearer than 50 feet to any property line nor nearer than 50 feet to the right-of-way line of any street or highway.

(c) A plan for restoration and rehabilitation of a commercial earth excavation area or borrow pit shall accompany the application for a special exception and shall assure conformance with the public health, safety and welfare. The ZBA, upon approval of such plan, shall require a performance bond to assure rehabilitation of commercial excavation sites in conformance therewith.

E. Junkyard. No junkyard shall be operated or established hereafter in any area of the Village.

F. Banks with either a drive-thru window or an external automatic teller machine. In addition to meeting the minimum yard and lot coverage requirements, such businesses shall be subject to the following regulations:

(1) Ingress to and egress from such a use shall not degrade public safety nor significantly add to traffic congestion upon any existing nearby right-of-way.

(2) On-site circulation pattern and on-site capacity shall be designed and sized to adequately accommodate reasonably anticipated peak usage to avoid obstructing any existing right-of-way.

(3) Such use shall have lighting that minimizes glare and shall have screen plantings that adequately shield the headlights of vehicles on the site from disturbing others on surrounding parcels and from confusing others on neighboring thoroughfares.

G. Existing mobile homes only in the R-2 Zoning District may be replaced by a newly manufactured home containing the same or greater usable square footage only if the ZBA grants a special exception. Such a new replacement manufactured home on the parcel shall meet all other zoning ordinance requirements, including but not limited to setback dimensions, and lot coverage percentage, as well as all other regulatory requirements, including but not limited to the floodplain regulations. The said new replacement manufactured home shall also be securely anchored to the foundation or ground to protect against movement in strong winds.

H. Storage warehouse. Any use in the C-2 Commercial Zoning District that is primarily a storage warehouse. Such uses shall be subject to the following regulations:

(1) Such use shall have adequate room on site for the maneuvering of trucks, the parking of trucks to load and unload, as well as for the vehicles of its employees and its customers.

(2) Ingress and egress shall be so designed to minimize traffic impact.

(3) Such use shall have adequate screening and minimal lighting glare when viewed from the residential property within 300 feet of the site.

(4) Neither noise, refuse, snow, surface water or odors emanating from the site shall be disruptive to the character of either the residential or the commercial property within 500 feet of the site.

(5) The size of the proposed new structure or addition shall not be disproportionately larger nor its eave height or roof ridge line disproportionately higher than the other commercial structures within 500 feet of the site.

I. Self-storage unit facility. All self-storage unit facilities shall conform to the following standards:

(1) The use shall be limited to individual storage compartments/units not to exceed 200 square feet.

(2) The proposed structure shall conform to the requirements of the New York State Uniform Fire Prevention and Building Codes.

(3) All storage units shall be of neutral tones which harmonize with the surrounding area.

(4) No self-storage units shall exceed one story in height.

(5) No outside storage is allowed.

(6) No electrical outlets shall be allowed in individual units.

(7) Lights shall be directed away from adjacent property. No self-storage facility shall exceed five acres in size. The facility size shall be calculated by the units, roadways/paved surfaces, fencing, as well as the landscape buffer, and all other associated items.[1]

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

(8) No used storage units that had a different principal use will be allowed to be called a storage unit. Example: tractor trailers.

(9) Such use shall be adequately fenced and screened from any adjacent property and lighting.

(10) Site plan review shall be required by the Zoning Board.

§ 295-54 Special exceptions in Main Street District (MSD).

A. Special exceptions in the Main Street District (MSD) shall be considered by the Zoning Board of the Village of Whitesboro, which is hereby given the authority to grant special exceptions for uses in the Main Street District pursuant to the provisions of § 295-52D(1), (2) and (3) as well as the criteria set forth in §§ 295-13 and 295-35.

[Amended 7-1-2013 by L.L. No. 2-2013]

B. Main Street District (one- or two-family dwelling, commercial use, mixed use or three or more dwelling units.)

(1) Development shall be regulated as follows: site plan review shall be required by the Zoning Board with respect to all special exceptions.

(2) Existing structure.

(a) One- or two-dwelling units may be established in an existing structure without the necessity of applying for a special exception, but plans must be submitted to the Codes Enforcement Officer to obtain a building permit for structural alterations and approval of plans, including confirmation that dwelling units meet the minimum of 850 square feet/unit standard.

(b) All other uses require application to the Zoning Board for approval on prescribed forms together with plans showing interior and exterior improvements contemplated, including proposed off-street parking. The minimum/maximum unit dimensions required as set forth in Schedule A, Part IV, Main Street District, need to be complied with, except as set forth in Subsection B(2)(d) hereof. The Zoning Board shall be entitled to grant a special exception even if the lot size, lot coverage, building height and yard dimension(s) requirements are not met, but the Zoning Board shall consider such factors in determining whether to grant a special exception for the proposed use.

[Amended 7-1-2013 by L.L. No. 2-2013]

(c) In the event an application for a special exception is submitted and the proposed plans include any new buildings or enlargement of existing structures, an area variance shall first be required by the Zoning Board if the improvements do not comply with lot size minimum; lot coverage maximum; building height maximum and/or minimum yard dimensions.

(d) For existing structures, the Zoning Board may authorize one nonconforming dwelling unit, provided it meets all criteria required by the New York State Building Code, as well as the following criteria:

[1] The unit preexists the application, but not if the unit was created after June 8, 2006.

[2] To expand existing unit to meet the 850-square-foot minimum would be structurally difficult or cost prohibitive.

(3) New structure.

(a) All new development must comply with the lot size minimum, lot coverage maximum, building height maximum and yard dimensions standards, except that the Zoning Board may grant an area variance for a new structure which will contain one or two dwelling units, based upon standard criteria as set forth in Article VIII [§ 295-45D(2)].

(b) An application for special exception must then be approved by the Zoning Board, except for a one- or two-family dwelling.

[Amended 7-1-2013 by L.L. No. 2-2013]

(4) Main Street District, drive-through:

(a) Must have frontage on a public street.

(b) Ingress and egress shall be so designed as to minimize traffic congestion, and for this purpose the number and location of driveways shall be subject to review and approval of the Zoning Board.

[Amended 7-1-2013 by L.L. No. 2-2013]