This section describes the procedures for review of all applications
for land use and development activity in the City of Albany.
(1)
Section 375-502 (Procedure Summary Chart), lists the land use and development procedures in this USDO.
(2)
Section 375-503 (Review and decisionmaking bodies) describes the powers and duties, composition, and rules for each of the City boards or other entities that have advisory and/or decisionmaking roles and responsibilities under this USDO.
(3)
Section 375-504 (General procedures) describes standards and procedures that generally apply to most types of development applications.
(4)
Section 375-505 (Specific procedures) supplements the general procedures with additions and variations specific to each type of development application, such as review standards and special submittal or voting requirements.
(5)
Section 375-506 (Preexisting development and nonconformities) regulates nonconformities by generally allowing them to continue to exist, but ties the reestablishment, reconstruction, expansion, or other substantial alteration of nonconformities to reasonably practicable actions that make the nonconformities conforming or reduce the number or extent of nonconformities.
The following table lists the types of development applications
authorized by this USDO. For each type of application, the table indicates
what type of notice is required, what role City review authorities
play in its review, and when a public hearing is required.
|
Table 375.502.1
Summary of Development Review Procedures
R = Review and Recommend | D = Review and Decide | (A)
= Appeal | [ ] = Public Hearing
| |||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Application Type
|
§ 375-505
|
Notice
|
Review Authorities
| ||||||||||
|
Published
|
Mailed
|
Posted
|
Chief Planning Official
|
Chief Building Official
|
Commissioner of General Services
|
Stormwater Management Officer
|
City Engineer
|
Historic Resources Commission
|
Planning Board
|
Board of Zoning Appeals
|
Common Council
| ||
|
Predevelopment Procedures
| |||||||||||||
|
Project review determination
|
(1)
|
D
|
(A)
| ||||||||||
|
Lot modification
|
(2)
|
D[2]
|
(A)
| ||||||||||
|
Development Review Procedures
| |||||||||||||
|
Development plan review
| |||||||||||||
|
Major
|
(3)
|
Yes
|
Yes
|
R
|
R
|
R
|
R
|
D
| |||||
|
Minor
|
(3)
|
Yes
|
Yes
|
D
|
R
|
R
|
R
|
(A)
| |||||
|
Certificate of appropriateness
| |||||||||||||
|
Minor
|
(4)
|
Yes
|
Yes
|
D
|
(A)
| ||||||||
|
Major
|
(4)
|
Yes
|
Yes
|
R
|
[D]
| ||||||||
|
Major subdivision of land
|
(5)
|
Yes
|
Yes
|
D[2]
|
R
|
R
|
R
|
[D]
| |||||
|
Conditional use permit
|
(6)
|
Yes
|
Yes
|
Yes
|
R
|
[D]
| |||||||
|
Demolition review
|
(7)
|
Yes
|
R
|
R
|
R
|
R
|
D
| ||||||
|
District plan approval
|
(8)
|
Yes
|
Yes
|
R
|
R
|
R
|
R
|
D
| |||||
|
Design review of tall buildings
|
(9)
|
No
|
Yes
|
Yes
|
R
|
[D]
| |||||||
|
Variance
| |||||||||||||
|
Area
|
(10)
|
Yes
|
Yes
|
Yes
|
R
|
[D]
| |||||||
|
Use
|
(10)
|
Yes
|
Yes
|
Yes
|
R
|
[D]
| |||||||
|
Floodplain
|
(11)
|
Yes
|
R
|
[D]
| |||||||||
|
Historic property hardship waiver
|
(12)
|
Yes
|
Yes
|
R
|
[D]
| ||||||||
|
Permit Procedures
| |||||||||||||
|
Building permit
|
(13)
|
R[1]
|
D
|
(A)
| |||||||||
|
Floodplain development permit
|
(14)
|
D
|
R
|
(A)
| |||||||||
|
Sign permit
|
(15)
|
R[1]
|
D
|
(A)
| |||||||||
|
Grading permit
|
(16)
|
R
|
D
|
(A)
| |||||||||
|
Right-of-way access permit
|
(17)
|
R
|
D
|
R
|
(A)
| ||||||||
|
Revocable right-of-way privilege
|
(18)
|
D
|
R
|
(A)
| |||||||||
|
Policy Decisions
| |||||||||||||
|
Interpretation
|
(19)
|
D
|
(A)
| ||||||||||
|
USDO text amendment
|
(20)
|
Yes
|
R
|
[R]
|
[D]
| ||||||||
|
Zoning Map amendment
|
Yes
|
Yes
|
Yes
|
R
|
[R]
|
[D]
| |||||||
|
Designation of a historic landmark, historic district or archaeological
district
|
(21)
|
Yes
|
[R]
|
[D]
| |||||||||
|
NOTES:
| |||||||||||||
|
[1]Application may require referral
for a zoning clearance.
| |||||||||||||
|
[2]A subdivision involving four or
fewer lots shall be reviewed as a lot modification.
| |||||||||||||
This section of the USDO identifies officers and bodies authorized
to review, recommend, or make decisions regarding required applications,
permits, and approvals under this USDO. Any reference to an officer
or body includes any agents, employees, subordinates, or others to
which the named individual or body has lawfully delegated power to
take action.
(1)
City staff.
(a)
General.
(i)
City staff shall have the review, recommendation, and decisionmaking
authority and responsibilities shown in Table 375.502.1 (Summary of
Development Review Procedures).
(ii)
City staff shall perform such other functions specified in Chapter 42 (Departments and Commissions), and other applicable chapters of the Albany City Code.
(iii)
City staff may delegate any review or decisionmaking
authority to any staff in their respective departments.
(b)
Chief Planning Official.
(i)
General. The Chief Planning Official is the City official responsible
for administering provisions of this USDO.
(ii)
Powers and duties. The Chief Planning Official
shall have the review, recommendation, and decisionmaking authority
and responsibilities shown in Table 375.502.1 (Summary of Development
Review Procedures). In addition, the Chief Planning Official shall
have the following additional powers and duties under this USDO:
A.
To establish requirements for the contents and format of development
applications reviewed under this USDO, and a schedule for the submittal
and review of such applications;
B.
To develop, adopt, and amend an Administrative Manual that may
specify detailed submittal and procedural requirements for various
development applications (e.g., application forms, application fees,
checklists for plans and other documents to be submitted with applications,
the content and scale/format of such plans and documents, schedules
and timelines for application review steps), summarize development
review procedures and standards to facilitate the use and understanding
of them, and include detailed specifications and illustrations identifying
how this USDO's standards for landscaping, public infrastructure,
and other aspects of development may be met;
C.
To maintain the official Zoning Map and related materials;
D.
To serve as or assign professional staff to the Planning Board,
Historic Resources Commission, and Board of Zoning Appeals;
F.
To interpret the provisions of this USDO in accordance with §§ 375-301(3), 375-505(19), Article VI (Rules of Construction; Definitions), and the intent and purpose statements included in this USDO;
G.
To provide expertise and technical assistance to the City's
review and decisionmaking bodies on request;
H.
To maintain on file a record of all development applications
reviewed under this USDO and make copies available on request through
the City's public records request process;
I.
To assist the Planning Board in preparing, maintaining, and
amending the City's Comprehensive Plan;
(c)
Chief Building Official.
(i)
General. The Chief Building Official, also known as the Director of the Department of Buildings and Regulatory Compliance, shall perform such functions specified in Chapter 42 (Departments and Commissions), and other applicable chapters of the Albany City Code. The Chief Building Official is the City official responsible for reviewing building plans for compliance with the Building Code, including review and approval of building permits [§ 375-505(13)] and a certificate of occupancy.
(ii)
Powers and duties. The Chief Building Official
shall have those powers authorized by the Building Code, and the review,
recommendation, decisionmaking authority and responsibilities shown
in Table 375.502.1 (Summary of Development Review Procedures). In
addition, the Chief Building Official shall have the following powers
and duties under this USDO:
A.
To make, adopt and enforce such reasonable rules and regulations,
not inconsistent with local, state, federal law or ordinances of the
Common Council;
B.
To enter into and examine buildings, structures, lots and enclosures
of every description to see that all laws of the state, ordinances
of the City, and rules and regulations of the Department are enforced;
C.
To issue permits for proposed projects that are found to comply
with all applicable ordinances and codes, and to inspect approved
projects during construction and upon completion to ensure compliance
with this USDO and other applicable ordinance and codes;
D.
To assist the Chief Planning Official in establishing requirements
for the contents of development applications reviewed under this USDO,
upon request;
E.
To assist the Chief Planning Official in developing and maintaining
an Administrative Manual, upon request;
G.
To provide expertise and technical assistance to the City's
review and decisionmaking bodies on request; and
(d)
Commissioner of General Services. The Commissioner of General Services shall perform such functions specified in Chapter 42 (Departments and Commissions), and other applicable chapters of the Albany City Code.
(e)
Stormwater Management Officer. The Stormwater Management Officer
is a term that refers to engineers in the Department of Water and
Water Supply who perform duties in this USDO and other applicable
chapters of the Albany City Code related to stormwater management.
(f)
City Engineer. The City Engineer is a term that refers to engineers in the Department of General Services who perform those functions specified in Chapter 42 (Departments and Commissions), and other applicable chapters of the Albany City Code. In general, the City Engineer shall assist the Commissioner of General Services in the design, construction, maintenance and repair of City streets, roads, sewers, pumping plants and drainage facilities, shall review and certify all work done under contract entered into by the Board of Contract and Supply, and supervise construction of public works projects.
(1)
Purpose. This section describes the common procedural steps and other rules that generally apply to development applications reviewed under this USDO, unless otherwise expressly exempted or alternative procedures are specified in Table 375.502.1 (Summary of Development Review Procedures) or § 375-505 (Specific procedures).
(2)
Environmental quality review.
(a)
Applications identified as needing to comply with the New York State Environmental Quality Review Act, also known as "SEQRA," shall meet the requirements of Chapter 181 (Environmental Quality Review) of the Albany City Code.
(b)
The City reserves the right to amend any decision or interpretation
made regarding the need for environmental quality review any time
during the review process before a final decision is made on the application.
(c)
If the Historic Resources Commission is not the lead agency
for an environmental quality review process, the opinion of the Historic
Resources Commission shall be sought, as an involved agency, for all
applications involving a designated landmark or property in a designated
historic district.
(3)
Local Waterfront Revitalization Program (LWRP). An application for
development, redevelopment, or a change of use within the boundaries
of the City's adopted Local Waterfront Revitalization Plan (LWRP)
area shall be required to comply with all standards, criteria, and
procedures required by New York State law for LWRP areas, and by the
provisions of the City's adopted LWRP.
(4)
Application submittal, acceptance, revisions, and withdrawal.
(a)
Authority to submit applications.
(i)
Unless expressly stated otherwise in this USDO, applications
reviewed under this USDO shall be submitted by:
A.
The owner, contract purchaser, or any other person having a
recognized property interest in the land on which an application is
proposed; or
B.
A person authorized to submit the application on behalf of the
owner, contract purchaser, or other person having a recognized property
interest in the land, as evidenced by an original and notarized owner
and interested party consent form; or
C.
The Chief Planning Official, Planning Board, Board of Zoning
Appeals, Historic Resources Commission or a member of the Common Council
of the City.
(ii)
If there are multiple owners, contract purchasers,
or other persons authorized to submit the application, all such persons
shall sign and have notarized the owner and interested party consent
form. Only one party, the owner, contract purchaser, or other interested
person, as noted in Subsection (4)(a)(i) above, shall sign the application.
(b)
Application content. Applications shall be submitted to the
Chief Planning Official on forms for that type of application, which
shall be included in an Administrative Manual or posted on the City's
website. The applicant bears the expense and burden of ensuring that
an application contains sufficient information to demonstrate compliance
with all applicable USDO standards.
(c)
Application fees.
(i)
Applications shall be accompanied by payment of the application
fee required for that type of application. The amount of application
fees shall be listed in the Administrative Manual and established
in amounts sufficient to cover all costs typically associated with
review of the type of application, including but not be limited to
the costs of providing thorough professional review of the application
and the costs of providing required public notice.
(ii)
Where initial application fees are based on the
estimated costs of review of the application by an outside consultant
(e.g., review of an application's traffic impacts by a traffic consultant),
and the Chief Planning Official determines that additional funds are
needed to complete the consultant's review, the Chief Planning Official
may require the payment of additional application fees to recover
the City's actual costs in completing review.
(iii)
An applicant may pay for expedited review to
be performed by a third-party consultant, per the Chief Planning Official's
discretion and as described in the Administrative Manual.
(d)
Submittal and review schedule. The Chief Planning Official shall
establish a submittal and review schedule for the development applications
included in the Administrative Manual, which may be amended and updated
as necessary to ensure efficient and thorough review.
(e)
Determination of completeness.
(i)
Completeness review. Upon receiving a development application,
the Chief Planning Official shall, within 15 days, determine whether
the application is complete. A complete application is one that:
A.
Contains all information and materials required by the Administrative
Manual and this USDO for submittal of the particular development application
in sufficient detail and clarity to evaluate the application for compliance
with applicable review standards of this USDO;
B.
Is in the form required by the Administrative Manual for submittal
of the particular development application; and
C.
Is accompanied by the fee established for the particular development
application.
(ii)
Application incomplete.
A.
Upon determining that a development application is incomplete,
the Chief Planning Official shall notify the applicant of the submittal
deficiencies within 15 business days of receiving the application.
The applicant may correct the deficiencies and resubmit the application
for a determination of completeness until the Chief Planning Official
determines the application is complete.
B.
If the applicant fails to resubmit an application with any additional
or corrected materials necessary to make the application complete
within 45 calendar days after being notified of submittal deficiencies,
the application shall be considered abandoned.
C.
No development application shall be reviewed for compliance
with this USDO or scheduled for a public hearing by any review or
advisory body until it is determined to be complete.
(iii)
Application complete. Upon determining that the
application is complete, the Chief Planning Official shall accept
the application for review in accordance with the procedures and standards
of this USDO.
(f)
Application revisions.
(i)
Revisions to correct compliance deficiencies. An applicant may revise a development application after receiving notice of compliance deficiencies following staff review. [See § 375-504(5).]
A.
Minor revisions. The review process shall continue so long as
the revisions directly respond to specific staff comments and include
only minor additions, deletions, or corrections and do not include
significant substantive changes to the development proposed in the
application, as determined by the Chief Planning Official.
B.
Major revisions. If the Chief Planning Official determines that
revisions to correct compliance deficiencies do not constitute minor
revisions as described above, a revised application shall be submitted
and reviewed as if it were a new application. The revised application
submittal may be subject to additional fees required by the Administrative
Manual.
(ii)
Other revisions. An applicant may revise a development
application at any time upon requesting and receiving permission from
an advisory or decisionmaking body after that body has reviewed, but
not yet taken action on, the application. If the revisions are determined
by the Chief Planning Official to be major, the revised application
submittal shall be reviewed as if it were a new application and may
be subject to additional fees required by the Administrative Manual.
(iii)
Change in applicant. If circumstances change so that the applicant of a pending application no longer meets the requirements of § 375-504(4)(a), any change in the applicant or person authorized to submit the application shall be documented in an original and notarized owner and interested party consent form delivered to the City before the application may advance to the next stage in the review process.
(g)
Withdrawal of application.
(i)
After an application has been accepted for review, the applicant
may withdraw the application at any time by submitting a written letter
of withdrawal to the Chief Planning Official.
(ii)
If an application is withdrawn after required notice of any public hearing scheduled for the application, the application shall be subject to limitations on the subsequent submittal of similar applications pursuant to § 375-504(12)(e) (Limitation of subsequent similar applications).
(iii)
Application fees shall not be refunded for withdrawn
applications.
(h)
Successive applications. If an application has been denied by
the City pursuant to this USDO, an application requesting the same
or essentially the same approval shall not be accepted within 12 months
after such denial.
(5)
Staff review and actions.
(a)
Referral of application to review agencies. At the Chief Planning
Official's discretion, any application may be referred to those City
departments, service providers, and review agencies potentially affected
by the application for review and comment.
(b)
Staff review and opportunity for application revision.
(i)
Prior to preparing a staff memorandum or making a decision on
a development application, the Chief Planning Official shall review
the application, relevant support material, and any comments from
other agencies to which the application was referred.
(ii)
If deficiencies in complying with the applicable
requirements are identified, the Chief Planning Official shall notify
the applicant within 10 days of the identification of such deficiencies,
and shall provide the applicant a reasonable opportunity to discuss
the deficiencies and revise the application to address them. The Chief
Planning Official may also offer the applicant recommendations regarding
possible improvements to the proposed development that are not required
by this USDO, but shall clarify that compliance with such recommendations
is not required for compliance with this USDO.
(iii)
The applicant shall respond to the notice by
either requesting that the application be processed as submitted or
by submitting a revised application identifying changes after being
notified of application deficiencies. If the applicant fails to so
respond to the notice within 45 days, the application shall be considered
withdrawn.
(iv)
If the applicant submits a revised application,
the Chief Planning Official shall refer the application to those City
departments, service providers, and review agencies affected by the
change for review, and shall review any such comments received. At
the discretion of the Chief Planning Official, the applicant may be
provided the opportunity to revise the application further to address
remaining compliance deficiencies.
(c)
Staff review and recommendation to advisory or decisionmaking
body.
(i)
Staff memorandum. If a development application is subject to staff review and a staff recommendation to the Planning Board, Board of Zoning Appeals, or Common Council [See Table 375.502.1 (Summary of Development Review Procedures).], the Chief Planning Official shall prepare a written staff memorandum. The staff memorandum shall conclude whether the application complies with all applicable standards of this USDO and recommend one of the decisions authorized for that type of application, based on the review standards for that type of application in § 375-505 (Specific procedures). The staff memorandum may identify and recommend conditions of approval to correct compliance deficiencies and mitigate any adverse effects of the development proposal.
(ii)
Distribution and availability of application and
staff memorandum. Within a reasonable time period before the meeting
at which a development application is scheduled for review by an advisory
or decisionmaking body, the Chief Planning Official shall:
A.
Schedule and verify any required public notice of the meeting in accordance with § 375-504(6) (Scheduling of public hearings and public notice);
B.
Transmit the development application, related materials, and
the staff memorandum to the appropriate advisory or decisionmaking
body. Staff memorandums shall be made available to the public at least
24 hours before the meeting;
C.
Transmit a copy of the staff memorandum to the applicant; and
D.
Make the application, related materials, and the staff memorandum
available for examination by the public during normal business hours
and online, and make copies of such materials available at a reasonable
cost.
(d)
Staff review and final decision.
(i)
Decision.
A.
If a development application is subject to staff review and a final decision by the Chief Planning Official (See Table 375.502.1, Summary of Development Review Procedures.), the Chief Planning Official shall make one of the decisions authorized below based on the review standards for that type of application, as set forth in § 375-505 (Specific procedures).
C.
The decision shall be in writing and shall clearly state reasoning
for a denial or for conditions of approval.
(ii)
Conditions of approval. Any conditions of approval
shall be expressly set forth in the decision, shall be limited to
conditions deemed necessary to ensure compliance with the requirements
and particular standards of this USDO or other standards adopted by
affected service providers or review agencies, and shall relate in
type and scope to the anticipated impacts of the proposed development.
(e)
Staff approval of administrative adjustments. The Chief Planning
Official may approve an administrative adjustment within the limits
established in Table 375.504.1 if the Chief Planning Official determines
that the criteria in Subsection (5)(e)(ii) below have been met. An
application for an administrative adjustment may only be submitted
and reviewed concurrently with applications for other types of site
development permits. Where the primary application is subject to review
and approval by the Planning Board, the Chief Planning Official shall
review and decide the administrative adjustment application before
distributing the primary application to the Board and/or Council.
(i)
Allowable administrative adjustments.
|
Table 375.504.1
Allowable Administrative Adjustments
| ||
|---|---|---|
|
Standard
|
Maximum Allowable
Adjustment
| |
|
Lot Standards
| ||
|
Minimum lot area
|
10%
| |
|
Minimum lot width
|
10%
| |
|
Minimum lot depth
|
10%
| |
|
Maximum impervious lot coverage
|
10%
| |
|
Setbacks
| ||
|
Minimum front setback
|
5%
| |
|
Minimum side setback
|
15%
| |
|
Minimum rear setback
|
15%
| |
|
Building Standards
| ||
|
Maximum height, principal building
|
5%
| |
|
Site Development and Design Standards
| ||
|
Block perimeter
|
10%
| |
|
Perimeter buffer width
|
10%
| |
|
Perimeter buffer planting rate
|
10%
| |
|
Driveway spacing
|
10%
| |
|
Street intersection spacing
|
10%
| |
|
Number of vehicle parking spaces
|
10%
| |
|
In MU-FW, MU-FC, MU-FS, and MU-FM Zoning Districts
|
50%
| |
|
In all other zoning districts
|
10%
| |
|
Number of bicycle parking spaces
|
10%
| |
|
Stacking lane distance for parking area entrance drives
|
10%
| |
|
Walking distance between shared, off-site, or on-street vehicle
parking spaces and primary pedestrian entrance of uses served
|
20%
| |
|
Vegetation size at time of planting
|
10%
| |
|
Tree island and tree island area
|
10%
| |
|
Street tree spacing
|
10%
| |
|
Wall and fence height
|
1 foot
| |
|
Outdoor Lighting Standards
| ||
|
Lighting fixture height
|
10%
| |
|
Sign Standards
| ||
|
Projecting sign
|
10%
| |
|
Sign face area or dimensions
|
10%
| |
|
Sign height
|
10%
| |
|
Sign wall coverage
|
10%
| |
|
Encroachment into required setbacks
|
15%
| |
(ii)
Review criteria. An application for an administrative
adjustment shall be approved only if the Chief Planning Official determines
that the adjustment falls within the limitations in Table 375.504.1
and that:
A.
The administrative adjustment will not create a condition that
is inconsistent with the character of development in the surrounding
area; and
B.
Any adverse impacts resulting from the administrative adjustment
will be mitigated to the maximum extent practicable; and
C.
The administrative adjustment is of a technical nature (i.e.,
relief from a dimensional or design standard), and is either:
1.
Required to compensate for some unusual aspect of
the site or the proposed development that is not shared by landowners
generally;
2.
Proposed to protect sensitive natural resources
or save healthy existing trees; or
3.
Required to eliminate a minor inadvertent failure
to fully comply with a standard; and
D.
The administrative adjustment will not substantially interfere
with the convenient and enjoyable use of adjacent lands; and
E.
Will not pose a danger to the public health or safety.
(6)
Scheduling and notice of public hearings.
(a)
Scheduling.
(i)
If a development application is subject to a public hearing
(See Table 375.502.1, Summary of Development Review Procedures.),
the Chief Planning Official shall ensure that the public hearing is
scheduled for either a regular meeting of the body conducting the
hearing or a meeting specially called for that purpose by such body.
(ii)
The public hearing shall be scheduled for a date
that allows sufficient time for preparation of a staff memorandum
and provision of the required public notice.
(b)
General notice requirements. The applicant shall provide the
types of public notice of the public hearing shown in Table 375.502.1
(Summary of Development Review Procedures) for that type of application,
or shall reimburse the City for the cost of providing such notice.
If an application is made by the City or is City-sponsored, the Chief
Planning Official shall be responsible for providing public notice
in accordance with Table 375.502.1.
(c)
Notice format and content.
(i)
Published notices.
A.
Published notices shall be required for those types of applications
requiring a public hearing, as listed in Table 375.502.1 (Summary
of Development Review Procedures).
B.
Such notices shall be published in a newspaper of general circulation
at least 10 days before all types of public hearings, except as stated
in Subsection (6)(c)(i)C below, and unless otherwise required by §§ 27-a,
27-b, 28-a, 29, and 32 of the New York General City Law.
C.
Notices shall be published 14 days before a joint public hearing
for an application for subdivision of lots and a related environmental
impact statement, unless otherwise required by § 32 of the
New York General City Law.
D.
The Chief Planning Official shall determine the format and content
of notices to be published. Required published notices shall, at a
minimum:
1.
Identify the application type;
2.
Describe the nature and scope of the proposed development or action;
3.
Identify the location of land subject to the application;
4.
Identify the date, time, and location of the hearing being noticed;
5.
Identify where and when the application may be inspected by the public;
6.
Advise that interested parties may appear and provide comment at
the hearing, or written comment prior to the hearing;
7.
Include the applicant’s name;
8.
Describe the nature of the relief sought; and
9.
Comply with any other notice content requirements established by
state law.
E.
Notices shall be published in a newspaper having general circulation
in the City, and shall comply with the size and format requirements
of the Chief Planning Official.
(ii)
Mailed notices.
A.
Mailed notices shall be required for those types of applications
listed in Table 375.502.1 (Summary of Development Review Procedures).
B.
Notices shall be mailed at least 10 days before the public hearing
to all owners of subject property, as shown on the most recent tax
assessment roll, as well as owners of property located in whole or
in part within 250 feet of the boundaries of the property that is
the subject of the public hearing, as shown on the most recent tax
assessment roll.
C.
The Chief Planning Official shall determine the format and content of notices to be published. Required published notices shall, at a minimum include Items 1 through 4 and 9 identified in § 375-504(6)(c)(i)D.
(iii)
Albany County Planning Board. In accordance with
General Municipal Law § 239-m, notices of certain types
of applications, as well as a full statement describing the proposed
action, shall be mailed to the Albany County Planning Board if the
boundary of the property that is the subject of the application is
located within 500 feet of:
A.
The boundary of any other city, village, or town;
B.
The boundary of any existing or proposed county
or state park or other recreation area;
C.
The right-of-way of any existing or proposed county
or state parkway, thruway, expressway, road, or highway;
D.
The existing or proposed right-of-way of any stream
or drainage channel owned by the county or for which the county has
established channel lines;
E.
The existing or proposed boundary of any county-
or state-owned land on which a public building or institution is situated;
or
F.
The boundary of a farm operation located in an agricultural
district, as defined in Article 25-AA of the New York State Agriculture
and Markets Law, except that this Subsection (6)(c)(iii)F shall not
apply to area variances.
(iv)
Neighboring municipalities. In accordance with
New York General Municipal Law § 239-nn, the authorized
body having jurisdiction shall give notice by mail or electronic transmission
to an adjacent municipality at least 10 days prior to a hearing being
held relating to:
A.
The issuance of a proposed conditional use permit to property
that is within 500 feet of an adjacent municipality;
B.
The granting of a use variance to property that is within 500
feet of an adjacent municipality;
C.
Development plan review pertaining to a property that is within
500 feet of an adjacent municipality; or
D.
A subdivision review pertaining to property that is within 500
feet of an adjacent municipality.
(v)
Posted notices.
A.
Posted notices shall be required for those types of applications
listed in Table 375.502.1 (Summary of Development Review Procedures).
B.
The Chief Planning Official shall determine the size, format
and content of notices to be posted.
C.
Required published notices shall, at a minimum include Items 1 through 6 and 9 identified in § 375-504(6)(c)(i)D.
D.
Posted notices shall be posted along each of the application
site's right-of-way frontages, in a location clearly visible to traffic
along the right-of-way.
E.
Posted notices shall be placed at least 10 days prior to the
public hearing or initial public meeting to be conducted on the application.
F.
The applicant shall replace postings that are removed or damaged
promptly after notice of such removal or damage.
G.
The person required to post the notice shall ensure that the
notice is maintained in place until after a final decision has been
rendered on the subject application, and shall remove the posted notice
within 14 days after the final decision on the application.
H.
Required posted notices shall, at a minimum:
(vi)
Other types of notice. An applicant shall provide,
at the applicant's expense, any additional notice or forms of notice,
such as web-based or other electronic notice, if the Chief Planning
Official determines that type of additional notice is necessary to
inform citizens or stakeholders who may be materially affected by
the proposed development.
(vii)
Affidavit of notice. The applicant shall sign
an affidavit that proper notice has been provided. Such certificate
shall be deemed conclusive in the absence of fraud.
(d)
Requests to defer scheduled and noticed hearings. An applicant
may request that review of a development application scheduled for
a hearing before the Planning Board, Board of Zoning Appeals, Historic
Resources Commission or Common Council be deferred in accordance with
the following provisions:
(i)
Before any mailed notices of the hearing are mailed and final
arrangements for any published notice of the hearing are made, a written
request for deferral that states the reasons for deferral may be submitted
to the Chief Planning Official, who may grant the request for good
cause shown.
(ii)
Any subsequent request for deferral shall be in
writing, state the reasons for deferral, and be submitted directly
to the body scheduled to review the application. The Planning Board,
Board of Zoning Appeals (BZA), Historic Resources Commission (HRC)
or Common Council shall consider such a request and may either grant
the request for good cause shown or deny the request and proceed to
hear public comments, review, and take action on the application.
If the Planning Board, BZA, HRC, or Common Council grants the request
for deferral, it shall concurrently identify the date and time of
a subsequent meeting at which the application shall be scheduled for
public comment and review.
(iii)
The application may be subject to additional
application fees to defray additional costs of processing the application
or notifying the public and/or other interested parties.
(e)
Registering to receive notice.
(i)
Any organization or person wishing to receive notice of any public
hearings related to the business of the Board of Zoning Appeals, the
Planning Board, the Historic Resources Commission or interpretations
of the Chief Planning Official shall register with the Planning Department.
Registration may take up to 15 business days to process.
(ii)
The Chief Planning Official may, as a courtesy, send electronic notice
to any persons or organizations in the City, or to any governmental,
public, or quasi-public organization regarding any matter related
to this USDO that may affect the interests of that person or organization,
or on any matter on which any such person or organization has requested
notice.
(iii)
The failure of the Chief Planning Official to send such notice
or the failure of any resident or property owner to receive such notice
shall not affect the validity of any application approved pursuant
to this USDO.
(7)
Planning Board review and action.
(a)
Hearing, concept review, regular review and action. If a development
application is subject to a recommendation or a final decision by
the Planning Board (See Table 375.502.1 Summary of Development Review
Procedures.), the Planning Board shall review and act on the application
in accordance with the following procedures:
(ii)
If an applicant seeking major development plan approval [§ 375-505(3)] elects to make an informal concept review presentation, it shall be held during a regularly scheduled Planning Board meeting or Planning Board workshop. The applicant shall provide at a minimum a conceptual plan for review and discussion. No formal action will be taken during a concept review meeting; however, the Board can ask questions, make comments, and suggestions.
(iii)
The Planning Board shall consider the application,
relevant supporting materials, staff memorandum, and any public comments
made at the public hearing, and take one of the following actions:
(iv)
The Board shall clearly state the factors considered
in making its recommendation or decision, as well as the basis or
rationale for the recommendation or decision.
(b)
Revision of application.
(i)
After the Planning Board has reviewed an application but has
not yet taken action on it, the applicant may request an opportunity
to revise the application. The Board may grant such a request on condition
that revisions are limited to changes that directly respond to specific
requests or suggestions made by staff or the Planning Board and shall
constitute only minor additions, deletions, or corrections, and not
significant substantive changes to the development proposed by the
application.
(ii)
Any other revisions to the application may be
submitted, but the revised application shall be submitted to the Chief
Planning Official and reviewed as if it were a new application. The
revised application is subject to additional application fees to defray
the additional processing costs as identified in the Administrative
Manual.
(c)
Referral to Planning Board. If Table 375.502.1 (Summary of Development
Review Procedures) authorizes the Chief Planning Official to make
a decision and the Chief Planning Official determines that the application
is unusually complex or raises potentially unique or serious impacts
on the City or surrounding neighborhoods, the Chief Planning Official
may, at their discretion, refer the decision to the Planning Board
for decision pursuant to the same criteria that the Chief Planning
Official would have been required to apply to that decision.
(8)
Historic Resources Commission review and action.
(a)
If a development application is subject to a recommendation or a final decision by the Historic Resources Commission [See Table 375.502.1 (Summary of Development Review Procedures)], the Historic Resources Commission shall review and act on the application in compliance with § 375-505(4) (Certificate of appropriateness) and § 375-505(21) (Designation of historic landmarks, historic districts or archaeological districts).
(b)
No officer, department, or agency of the City whose approval
is required by law for the construction or effectuation of a City-owned
or City-sponsored project shall approve the plans, proposal or application
for any such project located in or adjacent to a historic district
or landmark, unless such officer or agency has received from the Historic
Resources Commission a report or a notification that the proposed
action has been reviewed and approved as per these provisions.
(c)
Any City agency that conducts historic preservation planning
surveys or applies for or receives notification of state or federal
historic designation of any property within the City shall provide
copies of materials relating to these matters to the Historic Resources
Commission for central filing.
(9)
Board of Zoning Appeals review and action. If a development application
is subject to a final decision by the BZA [See Table 375.502.1 (Summary
of Development Review Procedures).], the BZA shall review and act
on the application in accordance with the following procedures:
(a)
The BZA shall consider the application, relevant supporting materials, staff memorandum and any public comments made at the public hearing, and shall render a decision authorized for the type of development application based on the review standards applicable to that type of application set forth in § 375-505 (Specific procedures).
(c)
The BZA shall clearly state the factors considered in making
its recommendation or decision, as well as the basis or rationale
for the recommendation or decision.
(d)
The BZA shall render a decision within 62 days of the final
hearing on an application.
(10)
Common Council review and action. If an application is subject
to a final decision by the Common Council [See Table 375.502.1 (Summary
of Development Review Procedures).], the Common Council shall review
and act on the application in accordance with the following procedures:
(a)
The Common Council shall consider the application, relevant supporting materials, staff memorandum, recommendation from the Planning Board (where applicable) and any comments made at a public hearing, and shall render a decision authorized for the type of development application based on the review standards applicable to that type of application, as set forth in § 375-505 (Specific procedures).
(b)
The Common Council's decision shall be one of the following:
(c)
The Common Council shall clearly state the factors considered
in making its decision, as well as the basis or rationale for the
decision.
(d)
The Common Council shall take action as promptly as possible
in consideration of the interests of the applicant, affected parties,
and citizens of the City.
(e)
The action of the Common Council will be filed with the City
Clerk within five days after the decision where required by New York
State General City Law.
(11)
Conditions of approval.
(a)
Authorization.
(i)
The person or entity responsible for making a decision is authorized
to approve an application with conditions necessary to bring it into
compliance with the requirements of this USDO and the adopted standards
of any affected service providers or review agencies.
(ii)
The person or entity responsible for making a decision is authorized
to impose conditions that it determines are necessary, including but
not limited to durational limits, hours of operation, and provisions
for periodic review, to:
A.
Bring the application into compliance with the requirements of this
USDO (including but not limited to provisions regarding permitted
hours of operation), the adopted standards of any affected service
providers or review agencies, and the purposes of the zoning district
where the property is located;
B.
Prevent, mitigate, or minimize adverse effects upon adjacent properties,
surrounding areas or public facilities and services; or
C.
Ensure that the proposed use, and its operation, is conducted in
a manner compatible with the surrounding neighborhood and will not
constitute a threat to the public health, safety, welfare, or convenience.
(iii)
Conditions imposed shall be reasonably related to the anticipated
impacts of the proposed development or land use and to the purposes
of this USDO.
(b)
Mitigation. In the case of a decision where mitigation of the
impacts requires an applicant to dedicate land or pay money to a public
entity in an amount that is not calculated according to a formula
applicable to a broad class of applicants, any condition imposed shall
be roughly proportional both in nature and extent to the anticipated
impacts of the proposed development, as shown through an individualized
determination of impacts.
(c)
Format and decision.
(i)
Any conditions on approved applications shall be listed in or attached
to the approval document, and violation of any approved condition
shall be a violation of this USDO.
(ii)
Conditions may stipulate to the point in the development process
by which such conditions must be satisfied. For example, the Planning
Board may stipulate that a condition must be satisfied "prior to clearing
and grubbing," or "prior to clear cutting," or "prior to demolition,"
or "prior to a foundation permit being issued," or "prior to any building
permits being issued," or "prior to the issuance of a certificate
of occupancy," or at any other point as may be appropriate.
(d)
Notice and revision of conditions of approval.
(i)
For any project that is approved with conditions, all such conditions
imposed shall be posted on the Planning Department’s website
for public comment for a period of no fewer than 10 business days
prior to issuance of any building or demolition permits.
(ii)
The Planning Department shall inform all necessary reviewing
authorities designated in Table 375.502.1 of the imposition of conditions
and provide 10 business days in which to submit to the Chief Planning
Official any comments or corrections to the conditions.
(iii)
Upon review, the Chief Planning Official shall have the authority to refer such conditions back to the person or entity responsible for making a decision for modification. Should the Chief Planning Official determine that the conditions do not need to be modified and referred back to the Planning Board, such decision may be appealed to the Board of Zoning Appeals in accordance with § 375-504(12)(b)(i) by any party aggrieved by the Chief Planning Official’s decision.
(iv)
In the event that the posted conditions require modification
because of any local, state, or federal law or regulation, the person
or entity responsible for making a decision shall modify such conditions.
(12)
Post-decision actions and limitations.
(a)
Notice of decision.
(i)
Within 10 calendar days after a final decision on a development
application, the Chief Planning Official shall provide a written copy
of the decision via personal delivery, electronic mail, or first-class
mail to the applicant and make a copy of the decision available to
the public online and in the Department of Development and Planning
during normal business hours.
(ii)
If the review involves a public hearing, the Chief
Planning Official shall, within 10 days after a final decision on
the application, also provide a written copy of the decision via personal
delivery, electronic mail, or first-class mail to the owner(s) of
the application site, and any person who has submitted a written request
for a copy of the decision before its effective date.
(b)
Appeal.
(i)
Decisions of the Chief Planning Official or Chief Building Official.
A.
A party aggrieved or adversely affected by any decision of the
Chief Planning Official or Chief Building Official may seek review
of the decision by the Board of Zoning Appeals, or in the case of
a minor certificate of appropriateness to the Historic Resources Commission,
or in the case of a minor development plan review to the Planning
Board.
B.
Any party wishing to appeal must do so within 30 days from the
date of the denial or approval, or issuance of a notice of violation.
C.
The Board of Zoning Appeals, Historic Resources Commission,
or Planning Board, as appropriate, shall decide each appeal applying
the same criteria applied by the Chief Planning Official or Chief
Building Official in making its decision.
D.
The Board of Zoning Appeals, Historic Resources Commission,
or Planning Board, may affirm, reverse, or modify the decision being
appealed to bring it into conformance with the USDO criteria applicable
to approval of that type of application.
(ii)
Decisions of the administrative bodies or Common
Council. Any party or parties that are individually or jointly or
severally aggrieved or adversely affected by any decision of the Board
of Zoning Appeals, the Planning Board, the Historic Resources Commission,
or the Common Council may seek review of the decision in the courts
in accordance with applicable state law, provided that the appeal
shall be filed with the clerk of a court with jurisdiction in accordance
with state law within 30 days after the filing of the decision in
the office of the City Clerk.
(c)
Effect and duration of approval.
(i)
Authorized activity.
A.
Approval of any development application, variance, or appeal
in accordance with this USDO authorizes only the particular use, plan,
or other specific activity approved, and not any other development
requiring separate application.
B.
If one development permit or approval is a prerequisite to another
permit or approval (e.g., variance approval prior to a development
plan approval), development may not take place until all required
permits and approvals are obtained. Approval of one application does
not necessarily guarantee approval of any subsequent application.
C.
Concurrent review of applications shall be at the Chief Planning
Official's discretion, based on the degree to which issues to be addressed
in various required approvals are interrelated, or the size and complexity
of the project.
(ii)
Approvals run with the land. Unless limited by a condition attached to an approval under this USDO, or unless the approval expires as described in § 375-505 (Specific procedures), an approval or permit granted under this USDO, including any approved plans and documents and conditions of approval, shall run with the land, shall be binding on the landowners and their successors and assigns, and shall not be affected by a change in ownership. All later decisions, determinations, and interpretation by City staff shall be consistent with the approval granted.
(iii)
Expiration of approval.
A.
General.
1.
A development application approval shall be valid as authorization for the approved activity for one year, unless it expires in accordance with a different expiration time period provided in § 375-505 (Specific procedures) for that type of application.
2.
A change in ownership of the land shall not affect
the established expiration time period of an approval.
B.
Extension of approval time period. Except as otherwise provided in § 375-505 (Specific procedures) for the particular type of application, the Chief Planning Official may grant extensions of the valid approval time period for the lesser of the original time period or one year, on receiving a written request for extension before the expiration date and on a showing of good cause. Any further extensions shall be subject to approval by the authority that approved the development application, on submittal of a written request to the Chief Planning Official before the current expiration date and a showing of good cause.
(d)
Amendment of approval. Unless otherwise provided in § 375-505 (Specific procedures) for the particular type of application, any modifications of approved plans or conditions of approval shall be submitted and reviewed in accordance with the full procedure and fee requirements applicable to the particular type of application.
(e)
Limitation of subsequent similar applications.
(i)
Prior application withdrawal. If an application requiring a public hearing is withdrawn after provision of or final arrangement for required notice of the public hearing [See § 375-504(4)(g) (Withdrawal of application).], no application proposing the same or similar development on all or part of the same land shall be submitted within six months after the date of the withdrawal.
(ii)
Prior application denial. If an application requiring
a public hearing is denied, no application proposing the same or similar
development on all or part of the same land shall be submitted within
one year after the date of the denial.
(13)
Construction of improvements.
(a)
All streets, sidewalks, streetscapes, utilities, and drainage
facilities required by this USDO shall be installed by the developer,
at the developer's expense, unless the City enters into an agreement
to pay or reimburse some of the costs in a manner consistent with
state law.
(b)
Each required improvement shall meet the standards and specifications
and shall be reviewed, tested, and accepted by the City pursuant to
standards and procedures adopted by the City department responsible
for design or maintenance of that type of improvement.
(c)
Each required improvement shall be completed and accepted by
the City before the City approves a final subdivision plat or issues
a certificate of occupancy pursuant to an approved minor or major
development plan, or if not completed, the applicant shall:
(i)
Provide a construction performance bond sufficient to cover
100% of the cost of any uncompleted construction as estimated by the
Board pursuant to § 33 of the General City Law; or
(ii)
Agree in writing that no certificate of occupancy
for any building in the subdivision shall be issued until all required
improvements needed to provide service to that building and to protect
the public health, and safety have been completed and accepted by
the City, and that agreement is noted on the final subdivision plat;
and
(iii)
Regardless of whether the applicant satisfies
Subsection (13)(c)(i) or (ii) above, the applicant shall deposit in
an escrow account funds adequate to pay for third party site inspection
of all public infrastructure improvements following their completion
and prior to acceptance by the City. The amount of the required deposit
shall be determined by the Planning Board during subdivision or development
plan review.
(d)
If the City requires the provision of a construction performance
bond pursuant to Subsection (13)(c)(i) above, the City may release
a portion of the performance bond proportionate to the amount of the
required improvement construction work completed and accepted by the
City, but no such release shall occur until at least one year after
the improvements have been accepted by the City.
(14)
Time periods for City performance. Unless otherwise stated in
this USDO, when this USDO states a time during which the City shall
make a decision or take an action, such time periods are provided
for convenience only. The failure of the City to make a decision or
take an action within a time period stated in this USDO:
This section lists the different types of development applications that may be required in order to develop or redevelop land or buildings in the City, or to conduct a specific use or activity on land or buildings in the City, as well as the procedural steps, decisionmakers, and approval criteria for each type of application. These provisions supplement, but do not replace, the general procedures described in § 375-504 above. On any topic not addressed in this § 375-505, the provisions of § 375-504 will continue to apply. Where conflict occurs between the provisions of this § 375-505 and those of § 375-504 as they relate to a specific type of application, the provisions of this section shall apply.
(1)
Project review determination. All applicable provisions of § 375-504 (General procedures) apply unless specifically modified by the provisions of this subsection.
(a)
Applicability. An applicant may request a project review determination,
which is a formal written statement by the City based upon the information
provided that details the permits and approvals required for development
of a lot or parcel within the City.
(b)
Procedure. The Chief Planning Official shall review the application
and make a determination within 45 days.
(2)
Lot modification.
(a)
Applicability.
(i)
No existing lot line shown on a recorded document or subdivision plat, as applicable, may be relocated between two abutting lots or tracts unless the Chief Planning Official has first approved that relocation pursuant to this § 375-505(2).
(ii)
Two or more existing lots shown on a recorded document or subdivision plat, as applicable, may be consolidated into a single or fewer lots for purposes of application of the standards in this USDO or the City building code only after the Chief Planning Official has first approved that consolidation pursuant to this § 375-505(2).
(iii)
This section includes subdivisions of land creating four or
fewer new lots for which no new public infrastructure is required
to be constructed (except for utility connections from new lots to
existing utility lines).
(b)
Procedure. An application for a lot modification shall be reviewed
and decided pursuant to the procedures outlined in Table 375.502.1
(Summary of Development Review Procedures).
(c)
An application for a lot modification shall be approved only
if it is determined that it is consistent with any provisions of this
USDO and the Albany City Code, such as:
(i)
If each of the existing lots and the structures on those lots complies
with the requirements of the USDO, then after the adjustment each
of the resulting lots will still comply with the requirements of this
USDO.
(ii)
If one or more of the existing lots, or a structure on one or more
of those lots, does not comply with the requirements of this USDO,
the proposed adjustment will not create any new nonconformity between
the requirements of this USDO and any of the lots or any of the structures
on the lots whose lot lines are to be adjusted.
(iii)
If any of the lots are legally nonconforming, the lot modification
will either remove the nonconformity or improve it.
(3)
Development plan review.
(a)
Applicability. The development plan review procedures and standards in this § 375-505(3) shall apply to any development plan associated with the following:
(i)
Major development plan review. The following development activities
shall constitute a major development:
A.
Civic and institutional, commercial, and industrial development involving
construction of a new building with 10,000 square feet or more of
gross floor area.
B.
Residential development involving construction of a new building
which contains more than four dwelling units within a single lot or
parcel.
C.
Residential development containing more than four units in non-single-unit
structures on contiguous or adjacent lots that have previously been
subdivided.
D.
An addition to, or expansion of, an existing multi-unit, group living,
nonresidential, mixed-use or special purpose use that will increase
the ground floor area by more than 10,000 square feet of gross floor
area.
E.
Conversion of an existing residential structure to a nonresidential
or institutional use (excepting the establishment of a home occupation).
F.
Conversion of an existing nonresidential structure to a residential
use containing 50 or more dwelling units in the MU-DT Zoning District,
or 20 or more dwelling units in any other zoning district.
G.
New surface parking lots with 10 or more parking spaces, or expansion
of any existing parking area by 10 or more parking spaces.
H.
A change of use in the MU-CU or MU-CH District on a lot containing
20,000 square feet or more of lot area.
I.
A change of use in the MU-NE or MU-NC District on a lot of 10,000
square feet or more of lot area.
J.
Any land use, structure, or activity in the Normans Kill Overlay
(NK-O) Zoning District that is anticipated or could result in the
disturbance of more than 10,000 square feet of surface land area or
excavation of more than 100 cubic yards of dirt or fill.
K.
Any contiguous area of land in excess of one acre where more than
50% of the existing trees or vegetation are proposed for clear-cutting
or removal over a period of five or fewer years.
L.
A subdivision of land that will create five or more new lots, or
for which and for which new public infrastructure is required to be
constructed (in addition to utility connections from new lots to existing
utility lines).
M.
Construction of a new principal structure on lands previously platted
as part of a cluster subdivision, or the resubdivision of lands platted
as part of a cluster subdivision in order to facilitate the construction
of a new principal structure.
(ii)
Minor development plan review. The following development activities
shall constitute a minor development:
A.
Civic and institutional, commercial, and industrial development involving
construction of a new building with less than 10,000 square feet of
gross floor area.
B.
Residential development involving construction of a new building
that contains four or fewer dwelling units within a single lot or
parcel.
C.
An addition to, or expansion of, an existing multi-unit, group living,
nonresidential, mixed-use or special purpose use that will increase
the ground floor area by between 1,000 and 10,000 square feet of gross
floor area.
D.
Conversion of an existing nonresidential structure to a residential
use containing between 20 and 49 dwelling units in the MU-DT Zoning
District, or between five and 19 dwelling units in any other zoning
district.
E.
New surface parking lots having fewer than 10 parking spaces or expansion
of any existing parking area that would add between five and nine
parking spaces.
F.
A change of use in the MU-CU or MU-CH District on a lot containing
between 10,000 and 20,000 square feet of lot area.
G.
A change of use in the MU-NE or MU-NC District on a lot containing
between 5,000 and 10,000 square feet of lot area.
H.
Any expansion or substantial renovation of a use in the vehicles
and equipment use category not subject to a major development plan
review.
I.
Demolition of principal structures located within the I-2 Zoning
District and containing less than 20,000 square feet of gross floor
area.
(b)
Procedure. The Chief Planning Official shall review the application
and make a decision on the development permit within 45 days.
(i)
An application for development plan review shall be reviewed and
decided pursuant to the procedures outlined in Table 375.502.1 (Summary
of Development Review Procedures).
(ii)
If the Chief Planning Official determines that a minor development
as classified in § 375-504(3)(a)(ii) is unusually large
or complex or may create significant adverse impacts on the surrounding
area, they may refer the application for consideration and decision
by the Planning Board for a major development review.
(c)
Concept review. An applicant may request a concept review of a major development plan with the Planning Board in accordance with § 375-504(7). However, no public hearing shall be required, the discussion shall be informal, the Planning Board shall take no action on the application, and the City shall not be bound by the results of any discussion held or opinions stated at a concept review meeting.
(d)
Review criteria. An application for development plan review
shall be approved only if the person or entity responsible for making
a decision determines that the proposed development:
(i)
General criteria.
A.
Will not create significant adverse impacts on the surrounding neighborhood,
or any significant adverse impacts will be limited to a short period
of time;
B.
Will not create risks to public health or safety;
C.
Is consistent with the Comprehensive Plan; and
D.
Is consistent with any provisions of this USDO and the Albany City
Code.
(ii)
Additional criteria for applications involving clear-cutting. An
application for a development plan review involving clear-cutting
shall be approved only if the person or entity responsible for making
a decision determines that:
A.
The clear-cutting is for a recognized silvicultural purpose;
B.
There are adequate buffers on the shorelines of lakes, ponds, rivers
or streams; along major travel corridors; and, if necessary, along
property boundaries around dwellings on adjacent lands so as to preserve
water quality and visual quality, to control noise, and to prevent
drainage or erosion problems;
C.
Habitats of rare and endangered species and other key wildlife habitats
will be protected;
D.
Regeneration of timber is assured;
E.
If proposed and if allowed by the Board, any use of pesticides and
herbicides will be strictly controlled;
F.
Harvest will be controlled by qualified personnel by contract, marked
stand, direct supervision or other adequate means;
G.
Wood roads and skid trails will be located and equipment will be
operated so as to minimize erosion on slopes and elsewhere;
H.
The storage, mixing or bulk handling of fuel, chemicals or other
hazardous materials will be strictly controlled; and
I.
The Timber Harvesting Guidelines for New York (New York Section of
the Society of American Foresters, June 1975) will be adhered to.
(iii)
Additional criteria for applications involving new development
within existing cluster subdivisions. An application for a development
plan review involving construction of a new principal structure on
lands previously platted as part of a cluster subdivision shall be
approved only if the person or entity responsible for making a decision
determines that:
A.
New principal structures are in keeping with the character of existing
principal structures within the subdivision.
(e)
Waivers.
(i)
An applicant may request, in writing, as a part of a development plan review, a waiver or modification of any of the development standards in Article IV. Such request shall set forth the specific relief sought and the reasons why the same are necessary.
(iii)
In making its determination as to the granting of a waiver,
the Planning Board shall take into consideration the benefit to the
applicant if the waiver is granted, as weighed against the detriment
to the health, safety, and welfare of the neighborhood or community
that may result from such grant. In making such determination, the
Planning Board 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 granting of the waiver;
B.
Whether the benefit sought by the applicant can be achieved by some
method feasible for the applicant to pursue, other than a waiver;
C.
Whether the requested waiver is substantial;
D.
Whether the proposed waiver 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, which consideration
shall be relevant to the decision of the Planning Board, but shall
not necessarily preclude the granting of the waiver.
(iv)
The Planning Board shall only grant such waivers to the minimum extent
that it shall deem necessary and adequate while at the same time preserving
and protecting the character of the neighborhood and the health, safety,
and welfare of the community.
(4)
Certificate of appropriateness.
(a)
Applicability.
(i)
This section applies to all applications for permits for work
involving any exterior alteration, restoration, reconstruction, demolition,
new construction or moving of a landmark or a property within a historic
district; any material change in the appearance of such a property
or its windows, light fixtures, signs or awnings, sidewalks, fences,
steps, paving or other exterior elements visible from a public street
or alley; or any grading or roadwork on a designated landmark property
or property in a historic district.
(b)
Procedure.
(i)
A certificate of appropriateness shall be reviewed and decided
pursuant to the procedures outlined in Table 375.502.1 (Summary of
Development Review Procedures).
(ii)
The Chief Planning Official shall refer the application
to a staff member or member of the Historic Resources Commission or
member of the Planning Board with knowledge of historic and/or archaeological
resources for review, at the Chief Planning Official's discretion
pursuant to the examples outlined below:
A.
Major certificate of appropriateness. The following activities shall
constitute a major certificate of appropriateness:
1.
Demolition of a structure;
2.
Construction of a new structure on a site containing a landmark
or in a historic district;
3.
Substantial alterations to the facade of a landmark or a property
within a historic district;
4.
Replacing historically appropriate materials with nonhistorically
appropriate materials; and/or
5.
Any subsurface excavation, grading, or roadwork on a designated
landmark property, or in a historic district, or in the Fort Orange/Downtown
Albany Archaeological Review District.
6.
Other actions that do not qualify for review as a minor certificate
of appropriateness.
B.
Minor certificate of appropriateness. The following activities shall
constitute a minor certificate of appropriateness:
1.
Replacement of a feature that is an element of the structure;
2.
Restoring original materials on a structure or site;
3.
Changes in-kind to a sign on the property;
4.
Replacement of nonoriginal or replacement windows;
5.
Replacement of nonoriginal or roofing materials;
6.
Replacement of nonhistorically appropriate materials with historically
appropriate materials based on physical or pictorial evidence.
(iii)
If the Chief Planning Official denies an application for a minor certificate of appropriateness, the applicant may request review of the application by the Historic Resources Commission. If so requested, the application shall be referred to the Historic Resources Commission for a decision made pursuant to § 375-505(4)(b)(ii)A (Major certificate of appropriateness).
(c)
Review criteria. A certificate of appropriateness may be approved
if it is determined that:
(i)
A cultural resources investigation indicates that it is not
likely that significant archaeological features exist on the site,
or that the proposed activity will not damage or disrupt any significant
archaeological features on the site, or that the applicant has committed
to adequate protection or relocation of any significant archaeological
features likely to be found on the site.
(ii)
Changes to a property or site visible from a public right-of-way conforms to those guidelines in § 375-206(1)(c) (General guidelines), § 375-206(1)(d) (Rehabilitation guidelines), § 375-206(1)(e) (New construction guidelines), § 375-206(1)(f) (New construction in or adjacent to the Downtown Albany Historic District), and § 375-206(1)(g) (Fence, wall, and accessory structure guidelines) to the maximum extent practicable and/or the applicant has mitigated any departures to the maximum extent practicable.
(5)
Major subdivision of land.
(a)
Applicability. The provisions of this subsection shall apply
to all divisions of land within the City that will create five or
more new lots, or for which new public infrastructure is required
to be constructed (beyond utility connections from new lots to existing
utility lines).
(b)
Procedure. An application for a subdivision of land shall be reviewed
and decided pursuant to the procedures outlined in Table 375.502.1
(Summary of Development Review Procedures). The Chief Planning Official
and Planning Board shall also ensure compliance with the procedures
for review set out in General City Law §§ 32 and 34,
and General Municipal Law § 239-n.
(c)
Review criteria. An application for major subdivision of land
shall be approved only if it is determined that:
(i)
All proposed lots created meet the dimensional standards for that
district;
(ii)
The proposed development is consistent with the Comprehensive Plan;
(iii)
The proposed development is consistent with the provisions of
General City Law § 33, this USDO, and the Albany City Code;
and
(iv)
The proposed development complies with all requirements and conditions
of approval of any prior development permits or approvals applicable
to the property.
(d)
Post-decision actions and limitations. The post-decision actions and limitations in § 375-504(12) shall apply to the application except as follows:
(i)
Expiration of approval.
A.
Approval of a subdivision plat shall expire within 180 days after
the resolution granting such approval unless all requirements stated
in such resolution have been certified as completed.
B.
The Chief Planning Official may extend by not more than two additional
periods of 90 days the time in which a conditionally approved subdivision
plat must be submitted for signature if, in the Chief Planning Official's
opinion, such extension is warranted by the particular circumstances
unique to the site or proposed project.
C.
A subdivision on which all conditions of approval have been completed does not expire, but shall remain valid unless and until the subdivision plat is subsequently amended in accordance with this § 375-505(5).
(ii)
Certification of plat.
A.
Within five business days of the adoption of the Planning Board resolution
granting conditional or final approval of the subdivision, the subdivision
plat shall be certified by the Chief Planning Official as having been
granted conditional or final approval, and a copy of such resolution
and subdivision plat shall be filed in the City Clerk's office. The
original subdivision plat shall be filed in the Office of the Albany
County Clerk.
B.
A copy of the Planning Board resolution shall be mailed to the owner.
C.
In the case of a conditionally approved subdivision, such resolution
shall include a statement of the requirements, which when completed
will authorize the signing of the certification. Upon completion of
such requirements the subdivision plat shall be signed by the Chief
Planning Official and a copy of such signed subdivision plat shall
be filed in the City Clerk's office.
(6)
Conditional
use permit.
(a)
Applicability. This section applies to any change of use application
where the proposed use is identified as a conditional use in Table
375.302.1 (Permitted Use Table) in the district where it is proposed
to be located, or as otherwise required by this USDO.
(b) 
Procedure. A conditional use permit shall be reviewed and decided
pursuant to the procedures outlined in Table 375.502.1 (Summary of
Development Review Procedures).
(c)
Review standards. An application for a conditional use permit shall
be approved only if it is determined that it:
(i)
Is consistent with any provisions of this USDO and the Albany City
Code;
(ii)
Would not result in a random pattern of development with little relationship
to existing or planned development;
(iii)
Would not cause negative fiscal or environmental impacts on
adjacent properties and the surrounding neighborhood;
(iv)
Is consistent with the purposes and objective of the zoning district
and character of the neighborhood in which it is located and the specific
use standards applicable to the use;
(v)
Would not result in harmful cumulative effects or impacts of aggregate
similar conditional uses;
(vi)
Would not place excessive burden on public improvements, facilities,
services, or utilities; and
(vii)
Will provide a necessary and desirable service that is in the
interest of the public convenience and will contribute to the general
welfare of the surrounding neighborhood or community.
(7)
Demolition
review.
(a)
Applicability.
(i)
No person shall demolish any building, structure or any portion of a building or structure without a valid demolition review, unless exempted by § 375-505(7)(a)(ii).
(ii)
Exemptions.
A.
Any principal structure located within the I-2 Zoning District containing
less than 20,000 square feet of gross floor area;
B.
Partial demolitions involving less than 25% of the non-street-facing
portions of the principal structure;
C.
Accessory structures containing less than 1,000 square feet of gross
floor area that are not visible from the public right-of-way.
(iii)
This subsection shall not reduce any emergency powers or any
other powers of the Chief Building Official as to public safety, health
and welfare.
(b)
Procedure. A demolition review shall be reviewed and decided pursuant
to the procedures outlined in Table 375.502.1 (Summary of Development
Review Procedures).
(c)
Review criteria. The following criteria shall be evaluated in the
making of a determination to approve or deny an application for a
demolition review:
(i)
Whether the demolition and/or proposed redevelopment plan is consistent
with the Comprehensive Plan, neighborhood or district plans, this
USDO, and/or City or regional planning objectives.
(ii)
Whether the structure has significant historical, architectural,
aesthetic or cultural value in its present or restored condition and
whether the loss of the building would be detrimental to the historical
or architectural heritage of the City.
(iii)
The relationship of the building to the character of the neighborhood
as an established and definable area, the streetscape and its environs,
or any adjacent or attached buildings.
(iv)
The architectural merits of the proposed new construction, as compared
to the building or structure proposed to be demolished.
(v)
The timeframe within which the applicant intends to commence the
proposed redevelopment of the site.
(vi)
Whether realistic alternatives, including adaptive uses, are likely
based upon the nature or cost of work necessary to preserve the structure.
(vii)
The condition of the structure(s), the economic viability of
rehabilitation, and whether the building or structure can be rehabilitated
or reused.
(viii)
Whether the hardship is self-created or whether the building
or structure proposed for demolition is structurally unsound despite
efforts by the owner to properly maintain it.
(ix)
Whether some portion of the building, such as a facade or distinctive
architectural details, can or should be retained or reused in the
new construction.
(d)
Post-decision actions and limitations.
(i)
The applicant shall provide a plan to ensure a minimum of 35% of
construction and demolition debris generated from the demolition project
is diverted from disposal in landfills through recycling, reuse, and
diversion programs.
(ii)
Where a portion of the building, such as a facade or distinctive
architectural details, is to be retained or reused as a part of a
redevelopment, the applicant shall submit a stabilization plan by
a licensed professional engineer to be endorsed by the Chief Building
Official.
(8)
District
plan approval.
(a)
Applicability.
(i)
Civic and institutional campuses owned or operated by a single or
related entity or institution and occupying 10 or more acres of contiguous
land area may elect to obtain approval of a comprehensive district
plan.
(ii)
The district plan shall include all the contiguous areas and properties
under the ownership and control of the institution.
(b) 
Procedure.
(i)
Community meeting.
A.
The applicant shall hold at least one community meeting to discuss
the proposed district plan before submitting the application for review
and approval by the City.
B.
Mailed notice of the community meeting shall be provided as described in § 375-504(6)(c)(ii).
C.
The applicant shall submit with the application documentation that
the community meeting has taken place, the date and time of the meeting,
a list of attendees, a summary of issues raised regarding the district
plan, and any responses to those concerns incorporated in the district
plan.
(ii)
Review and decision. A district plan shall be reviewed and decided
pursuant to the procedures outlined in Table 375.502.1 (Summary of
Development Review Procedures).
(iii)
Post-decision actions and limitations. After a district plan
is approved, all subsequent development proposed by the institution
that substantially complies with the density, location and uses of
the approved district plan shall be administratively approved by the
Chief Planning Official without the need for additional public hearings.
(c)
Review criteria. An application for a district plan shall be approved
only if it is determined that the proposed plan meets the following
criteria:
(i)
It complies with all applicable standards for district plans as set
forth in the Administrative Manual, or offers sound reasons for variations
from those standards;
(ii)
The organization and layout of lots, structures, parking areas, loading
areas, and automobile, bicycle, and pedestrian circulation routes
shall not result in greater adverse impacts on adjacent residential
districts than if the project were designed under the standards applicable
to the property if a district plan were not approved, unless those
adverse impacts have been mitigated to the maximum extent practicable;
(iii)
The organization and layout of lots, structures, parking areas,
loading areas, and automobile, bicycle, and pedestrian circulation
routes shall not result in greater adverse impacts on the City's street,
utility, and infrastructure systems than if the project were designed
under the standards applicable to the property if a district plan
were not approved; and
(iv)
Sufficient public safety, transportation and utility facilities and
services are available to serve the planning area at the proposed
level of development, while maintaining sufficient levels of service
to existing and anticipated development in surrounding areas.
(9)
Design
review of tall buildings.
(a)
Applicability. This section applies to development involving construction
of a building that exceeds 100 feet in height.
(b) 
Procedure. An application for design review of a tall building shall
be reviewed and decided pursuant to the procedures outlined in Table
375.502.1 (Summary of Development Review Procedures).
(c)
Review criteria. An application for design review of a tall building
shall be approved if it is determined that:
(i)
The design complies with the standards in § 375-407 (Building and streetscape design), except as necessary to comply with the standards in Subsections (9)(c)(ii) through (vii) below;
(ii)
The design reflects architectural excellence in terms of orientation
to adjacent streets and open spaces, variety and durability of building
materials, facade articulation, and emphasis on pedestrian entrances
and sitting gathering spaces.
(iii)
The design allows for adequate light and air for nearby public
streets, sidewalks, trails, parks, and open spaces;
(iv)
The design, including but not limited to the streetscape and vehicular
and pedestrian access points, contributes to the walkability of adjacent
streets;
(v)
The design does not cast significant shadows on nearby public parks
or open spaces between the hours of 9:00 a.m. and 3:00 p.m. on October
31, or if significant shadows are cast on that date, the shadows have
been mitigated to the maximum extent practicable through building
shaping and design;
(vi)
The ground level design contributes to encouraging street activity
on adjacent streets; and
(vii)
The design is consistent with the intended character of the
downtown area, as described in the adopted Comprehensive Plan, and
with the intent of the MU-DT Zoning District.
(10)
Area or use variance.
(a)
Applicability. If an application does not comply with the provisions of this USDO, the Chief Building Official or Chief Zoning Official shall issue a letter of denial. The applicant may then apply for a variance from the dimensional or development standards or the permitted use regulations of this USDO pursuant to this § 375-505(10).
(b) 
Procedure. A use or area variance shall be reviewed and decided pursuant
to the procedures outlined in Table 375.502.1 (Summary of Development
Review Procedures).
(c)
Review criteria.
(i)
Area variance. In making its determination regarding a request for
an area variance, the BZA 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. In making such determination, the BZA 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 BZA but shall not necessarily
preclude the granting of the area variance.
(ii)
Use variance. No use variance shall be granted by a BZA 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 BZA that
for each and every permitted use under the zoning regulations for
the particular district where the property is located:
A.
The 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 use variance, if granted, will not alter the essential
character of the neighborhood; and
D.
The alleged hardship has not been self-created.
(iii)
Minimum necessary variance. The BZA, in the granting of variances,
shall grant the minimum variance that it shall deem necessary and
adequate to address the hardship while preserving and protecting the
character of the neighborhood and health, safety and welfare of the
community.
(11)
Floodplain variance.
(a)
Applicability.
(i)
An applicant may apply for a variance from any floodplain development standard in § 375-206(3) (FP-O Floodplain Overlay).
(ii)
Generally, variances may be issued for new construction and substantial improvements to be erected on a lot of 1/2 acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, provided that the items in § 375-505(11)(c) have been fully considered. As the lot size increases beyond 1/2 acre, the technical justification required for issuing the variance increases.
(iii)
Variances may be issued for the repair or rehabilitation of
historic structures upon determination that:
(iv)
Variances may be issued for new construction and substantial
improvements and for other development necessary for the conduct of
a functionally dependent use, provided that:
(v)
Variances shall not be issued within any designated floodway if any
increase in flood levels during the base flood discharge would result.
(vi)
Variances shall only be issued upon a determination that the
variance is the minimum necessary, considering the flood hazard, to
afford relief.
(vii)
Variances shall only be issued upon receiving written justification
of:
A.
A showing of good and sufficient cause;
B.
A determination that failure to grant the variance would result
in exceptional hardship to the applicant; and
C.
A determination that the granting of the variance will not result
in increased flood heights, additional threats to public safety or
extraordinary public expense; create nuisances; cause fraud on or
victimization of the public; or conflict with existing local laws
or ordinances.
(b)
Procedure. A floodplain variance shall be reviewed and decided pursuant
to the procedures outlined in Table 375.502.1 (Summary of Development
Review Procedures).
(c)
Review criteria.
(i)
In reviewing floodplain variance applications, the BZA shall consider
all technical evaluations, all relevant factors, standards specified
in other sections of this chapter and:
A.
The danger that materials may be swept onto other lands to the injury
of others;
B.
The danger to life and property due to flooding or erosion damage;
C.
The susceptibility of the proposed facility and its contents to flood
damage and the effect of such damage on the individual owner;
D.
The importance of the services provided by the proposed facility
to the community;
E.
The necessity to the facility of a waterfront location, where applicable;
F.
The availability of alternative locations for the proposed use which
are not subject to flooding or erosion damage;
G.
The compatibility of the proposed use with existing and anticipated
development;
H.
The relationship of the proposed use to the Comprehensive Plan and
floodplain management program of that area;
I.
The safety of access to the property in times of flood for ordinary
and emergency vehicles;
J.
The costs to local governments and the dangers associated with conducting
search and rescue operations during periods of flooding;
K.
The expected heights, velocity, duration, rate of rise and sediment
transport of the floodwaters and the effects of wave action, if applicable,
expected at the site; and
L.
The costs of providing governmental services during and after flood
conditions, including search and rescue operations, maintenance and
repair of public utilities and facilities such as sewer, gas, electrical,
and water systems and streets and bridges.
(d)
Post-action decisions and limitations.
(i)
Any applicant to whom a variance is granted for a building with the
lowest floor below the base flood elevation shall be given written
notice that the cost of flood insurance will be commensurate with
the increased risk resulting from lowest floor elevation.
(ii)
The Chief Planning Official shall maintain the records of all
applications for floodplain variances, including technical information,
and shall report any variances to the Federal Emergency Management
Agency upon request.
(12)
Historic property hardship modification.
(a)
Applicability. This subsection applies to:
(i)
All applications for a modification or waiver of some or all of those historic preservation standards and guidelines in § 375-206(1) (HR-O Historic Resources Overlay), which can only occur after a denial of a major certificate of appropriateness by the Historic Resources Commission pursuant to § 375-505(4); and
(ii)
All applications to demolish, remove, or relocate a designated
landmark or a contributing structure in a historic district, unless
the Department of Buildings and Regulatory Compliance has made a written
decision that the building presents an imminent threat to the public
health, safety, or welfare.
(b) 
Procedure.
(i)
An applicant may request, in writing, a waiver or modification of any of the standards or guidelines in § 375-206(1) (HR-O Historic Resources Overlay) or may request in writing permission to demolish, remove, or relocate a designated landmark or a contributing structure in a historic district.
(ii)
The Chief Planning Official may require additional information
to be appended to the application, which will verify the practical
difficulties or economic hardship claimed by the applicant.
(iii)
The Historic Resources Commission reserves the right to waive
or otherwise modify such standards or guidelines, or to permit the
demolition, removal, or relocation of a structure, upon a finding
that such action is necessary to eliminate practical difficulties
or economic hardship associated with strict interpretation of these
provisions. The applicant shall have the burden of proving any practical
difficulty or economic hardship that is claimed.
(iv)
The Commission shall limit any waiver or modification of the
standards or guidelines, or the approval of any demolition, removal,
or relocation of a structure, to the minimum required to alleviate
the economic hardship or practical difficulty, and may prescribe conditions
that it deems necessary or appropriate.
(v)
The Commission shall hold a public meeting on the historic property
hardship application at which the applicant and public will have an
opportunity to present their views on the application.
(vi)
If the Commission finds that the applicant's burden of proof has been met, the Commission shall issue a decision to approve the application with or without conditions. Its decision shall clarify which of the standards or guidelines in § 375-206(1) have been waived or modified, and the nature and extent of the waivers or modifications, or shall clarify its permission to demolish, remove, or relocate a structure.
(vii)
In the case of an application to demolish, remove, or relocate
a landmark structure or a contributing structure in a historic district,
the Commission may also decide to approve the application subject
to a waiting period of up to 120 days to allow the Commission to document
the structure, to consider options to relocate the structure, and/or
to consider options to modify the building for future uses that preserves
the architectural and historical integrity of the building.
(viii)
The decision of the Commission shall be in writing and shall
state the reasons for its decision. A copy shall be sent to the applicant
by first class mail or personal service with proof of delivery, and
a copy filed with the City Clerk's office for public inspection.
(c)
Review criteria.
(i)
Applications that do not involve a demolition, removal, or relocation.
The Historic Resources Commission may approve the application, with
or without conditions, if it determines that:
A.
The applicant cannot realize a reasonable return if compliance with
the Commission's decision is required; provided, however, that the
lack of reasonable return is proven by the applicant to be 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 relief, if granted, will not alter the essential character
of the neighborhood; and
D.
The alleged hardship has not been self-created.
(ii)
Applications for demolition, removal, or relocation. The Historic
Resources Commission may approve the demolition, with or without conditions,
if it determines that:
A.
The applicant has proposed an imminent plan for the redevelopment
or reuse of the affected property;
B.
The denial of demolition, removal, or relocation will prevent the
property owner from earning a reasonable return on investment, regardless
of whether that return represents the most profitable return possible;
C.
The property cannot be adapted for any other use, whether by the
current owner or by a purchaser, which would result in a reasonable
return;
D.
Efforts to find a purchaser interested in acquiring the property
and preserving it have failed; and
E.
The owner has not created his own hardship through waste and neglect
that allowed the property to fall into a serious state of disrepair.
(13)
Building permit.
(a)
Applicability. A building permit shall be required to construct,
alter, add to, or convert any structure or part of a structure.
(b) 
Procedure and zoning clearance.
(i)
An application for a building permit shall be reviewed and decided
pursuant to the procedures outlined in Table 375.502.1 (Summary of
Development Review Procedures).
(ii)
The Chief Building Official may require that an application
receive a zoning clearance from the Chief Planning Official. A zoning
clearance is a determination made by the Chief Planning Official that
the proposed development is consistent with the provisions of this
USDO and the Albany City Code. When such a request has been made,
no person shall construct, alter, add to, or convert any structure
or part of a structure or change the use of any land or property without
a valid zoning clearance issued by the Chief Planning Official.
(14)
Floodplain development permit.
(a)
Applicability.
(i)
A floodplain development permit is required for all construction
and other development to be undertaken in areas of special flood hazard
as shown on the Flood Insurance Rate Map.
(b)
Procedure. An application for a floodplain development permit shall
be reviewed and decided pursuant to the procedures outlined in Table
375.502.1 (Summary of Development Review Procedures).
(c)
Review criteria. An application for a floodplain development
permit shall be approved only if it is determined that:
(i)
The proposed building sites will be reasonably safe from flooding.
(ii)
If a proposed building site is located in an area
of special flood hazard, all new construction and substantial improvements
meet the City adopted standards, as amended.
(iii)
Any proposed development in an area of special
flood hazard does not result in physical damage to any other property
(e.g., stream bank erosion and increased flood velocities). The Chief
Building Official may require the applicant to submit additional technical
analyses and data necessary to complete the determination.
(iv)
All necessary permits have been received from
those governmental agencies from which approval is required by state
or federal law.
(15)
Sign permit.
(a)
Applicability.
(i)
An application for a sign permit shall be reviewed and decided pursuant
to the procedures outlined in Table 375.502.1 (Summary of Development
Review Procedures).
(ii)
A sign permit is not required for those signs listed in § 375-409(4) (Signs that may be erected without a permit).
(b) 
Procedure.
(i)
The Chief Building Official may require that an application receive
a zoning clearance from the Chief Planning Official. When such a request
has been made, no person shall construct, alter, add to, or convert
any structure or part of a structure or change the use of any land
or property without a valid zoning clearance issued by the Chief Planning
Official.
(ii)
The Chief Building Official shall review the application and
make a decision on the sign permit.
(c)
Review criteria. An application for a sign permit shall be approved
only if it is determined that it is consistent with any provisions
of the Albany City Code, including this USDO.
(16)
Grading permit.
(a)
Applicability.
(i)
No person shall commence or perform any grading and no person shall import or export any earth materials to or from any grading site without first having obtained a permit from the City Engineer. See also, Chapter 211 (Grading and Mining).
(ii)
Exemptions. In the following instances, a grading
permit is not required:
A.
The excavation or fill does not exceed two feet
in vertical depth at its deepest point measured from the original
ground surface and does not exceed 50 cubic yards of material on any
one lot; however, no fill shall be placed on a surface having a slope
steeper than one vertical to 10 horizontal, and no fill shall be placed
that will alter the existing drainage pattern.
B.
An excavation below finished grade for basements,
footings, swimming pools or any underground structure that does not
exceed 50 cubic yards of material and is authorized by a valid building
permit issued by the Chief Building Official.
C.
Work within the public right-of-way, dams and drainage
structures constructed by or under contract with the City Engineer,
Department of General Services, or the Department of Water and Water
Supply of the City of Albany.
D.
Work accomplished under the auspices of and owned
and controlled by the federal government or the State of New York.
E.
The depositing of rubbish or debris at any landfill
owned or operated by the City of Albany.
(b)
Procedure. An application for a grading permit shall be reviewed
and decided pursuant to the procedures outlined in Table 375.502.1
(Summary of Development Review Procedures).
(i)
Post-decision actions and limitations. The post-decision actions and limitations in § 375-504(12) shall apply to the application, except as follows:
A.
Every grading permit issued shall be valid for a period of one
year from the approval date, provided that any permit shall expire
on the 180th day from date of issuance if the permitted work has not
been commenced by that date.
B.
After expiration, a new permit shall be obtained before any
work is done, and the applicant shall pay an application fee in the
amount required for the original permit, determined by the total valuation
of the uncompleted portion of the work.
C.
If the holder of a grading permit presents satisfactory reasons
for his failure to complete the work during the period of validity
of the permit, the City Engineer, upon application by the permittee,
may grant extensions of time reasonably necessary by reason of such
difficulties. No request for such extensions shall be considered after
the date on which the permit would have otherwise expired.
D.
If a permit has not been secured within six months after plans
have been submitted for review, no permit shall be issued until the
plans have been rechecked and approved, and an additional fee for
such rechecking has been submitted. The City Engineer may waive this
provision if satisfied that the nature of the work involved makes
it impractical to secure a permit within six months after filing the
plans.
(c)
Review criteria. An application for a grading permit shall be
approved only if it is determined that the proposed development:
(i)
Will not create a hazard, slides, or be located on unstable
soil. If the City Engineer determines that the proposed grading is
not likely to be of such extent as to cause an immediate hazard on
the proposed site, a permit may be issued upon receipt of a sworn
affidavit that has been recorded in the office of the County Clerk,
stating that the applicant is fully aware that the site is in an area
subject to slides or unstable soil;
(ii)
Will not be located in an area subject to inundation
without appropriate mitigation. If it can be shown by authentic past
records that any possible inundation is not likely to be of such extent
as to be an immediate hazard to the site, the City Engineer may issue
a permit upon receipt of a sworn affidavit which has been recorded
in the office of the County Clerk stating that the applicant is fully
aware that the grading is in an area subject to inundation;
(iii)
Will comply with applicable district, use, and development standards in this USDO and in Chapter 211 (Grading and Mining); and
(iv)
Will comply with all requirements and conditions
of any prior development permits or approvals related to the property.
(17)
Right-of-way access permit.
(a)
Applicability. This section applies to all development projects or activities that require the creation of a new right-of-way access location or the relocation of an existing right-of-way access location on a public right-of-way. See also, Chapter 323 (Streets and Sidewalks).
(b) 
Procedure. An application for a right-of-way access permit shall
be reviewed and decided pursuant to the procedures outlined in Table
375.502.1 (Summary of Development Review Procedures). In addition
to those procedures, the Chief Planning Official and Commissioner
of General Services shall consult with the Chief of Police or their
designee.
(c)
Review criteria. An application for a right-of-way access permit
may be approved if it is determined that:
(i)
The review authorities have no objection to the issuance of the permit;
(ii)
The issuance of the permit will not compromise public health
and safety, including but not limited to automobile, bicycle, and
pedestrian safety;
(iii)
The issuance of the permit is consistent with the intent and
character of the district in which the property is located;
(iv)
The proposed activity is consistent with any provisions of the
Albany City Code, including this USDO; and
(v)
The right-of-way access authorized is the minimum necessary to accomplish
the purpose of the right-of-way access permit.
(d)
Post-decision actions. A right-of-way access permit may be revoked
by the City for violation of any provision of this USDO or any condition
attached to the permit, or if the City requires other use of the public
right-of-way.
(18)
Revocable right-of-way privilege. All applicable provisions of § 375-504 (General procedures) apply unless specifically modified by the provisions of this subsection.
(a)
Applicability. This section applies to all development projects or
activities that will occur on public rights-of-way, including but
not limited to sidewalks.
(b) 
Procedure. An application for a revocable right-of-way privilege
shall be reviewed and decided pursuant to procedures outlined in Table
375.502.1 (Summary of Development Review Procedures).
(c)
Review criteria. An application for a revocable right-of-way privilege
may be approved if it is determined that:
(i)
The review authorities have no objection to the issuance of the permit;
(ii)
The issuance of the permit will not compromise public health
and safety, including but not limited to automobile, bicycle, and
pedestrian safety;
(iii)
The proposed activity is consistent with any provisions of the
Albany City Code, including this USDO.
(iv)
The applicant has agreed to provide and maintain liability insurance
protecting the City from liability for damage or injury related to
the proposed activities on the public right-of-way, if the City determines
that insurance be provided based on its evaluation of potential risks
to the City; and
(v)
The issuance of the permit is consistent with the intent and character
of the district in which the property is located.
(d)
Post-decision actions. A revocable right-of-way privilege may be
revoked by the City for violation of any provision of this USDO or
any condition attached to the privilege, or if the City requires other
use of the sidewalk or public property.
(19)
Interpretation.
(a)
Applicability. The procedures and standards in this § 375-505(19) shall apply to all interpretations of the USDO made by the Chief Planning Official when:
(i)
An ambiguity exists in the meaning or application of words, phrases
or requirements in the USDO that could affect proposed or existing
developments, uses, adjacent property owners, or the character of
one or more neighborhoods; or
(ii)
There is a conflict between the words, terms, allowable uses,
or requirements and standards contained within this USDO; or
(iii)
There is a conflict between the words, terms, allowable uses,
or requirements and standards contained in this USDO and other municipal,
state or federal laws, codes, rules and regulations; or
(iv)
A property owner, developer, resident or Common Council member
requests an interpretation or clarification of the provisions of this
USDO to their property or residence or to other nearby properties
and developments, and upon review, the Chief Planning Official determines
the question raised is one that is likely to apply to other circumstances
and the resulting determination will establish a precedent that should
be followed in other similar circumstances.
(b)
Procedure.
(i)
Interpretations can be initiated by the Chief Planning Official or through formal requests by individuals or entities authorized to submit applications pursuant to § 375-504(4)(a)(Authority to submit applications).
(ii)
The Chief Planning Official shall review the relevant provisions
of the USDO, any background information relative to legislative intent,
the plain meaning of the words, and other relevant information and
consult with Corporation Counsel prior to issuing a proposed decision
on the interpretation.
(iii)
Within five business days of making a proposed decision on an
interpretation, a copy of the interpretation shall be posted on the
department’s webpage, sent to the Common Council and interested
parties..
(iv)
The proposed interpretation shall be presented by the Chief
Planning Official to the Planning Board within 60 days of the issuance
of the proposed interpretation or at the next scheduled and noticed
Planning Board meeting or hearing, whichever is sooner. Notice of
the nature of the proposed interpretation shall be included on the
Planning Board agenda with a link to the proposed interpretation.
(v)
Members of the public shall be allowed to submit written comment
up to 10 days after the Planning Board meeting and will have the opportunity
to provide public comment at all Planning Board meetings or hearings
for the interpretation.
(vi)
Any parties aggrieved or adversely affected by any decision of the Chief Planning Official may seek administrative appeal review with the Board of Zoning Appeals through the procedures identified in § 375-505(12)(b)(i) of the USDO
(vii)
Notwithstanding the foregoing, the Chief Planning Official may
consider their proposed interpretation final 14 days after posting
the proposed interpretation on the department’s webpage and
sending it to the Common Council if no member of the Common Council
objects to the proposed interpretation and if the Chief Planning Official
determines, to a reasonable degree of certainty, that:
A.
Any delay in finalizing the proposed interpretation will result
in significant harm to the quality of life or financial or property
interests of any resident, property owner, or developer;
B.
The proposed interpretation meets the review criteria set forth
in Subsection (19)(c) below; and
C.
There are no significant viable alternatives to the proposed
interpretation.
(c)
Review criteria.
(i)
An interpretation request shall be reviewed by the Chief Planning
Official and the proposed interpretation shall not be issued unless
it meets the following criteria:
A.
Is consistent with all provisions of this USDO, the Albany City Code,
the legislative intent, and the plain meaning of the language used
in the USDO;
B.
Is consistent with the Comprehensive Plan;
C.
Will not create risks to public health or safety;
D.
Has identified and determined that the interpretation would not result
in any significant negative land use impacts; and
E.
Would avoid an arbitrary and capricious delay in the review of a pending application that could otherwise be reviewed through the procedures of § 375-505(20) of the USDO (Amendment to Zoning Map or USDO text).
(d)
The Chief Planning Official’s decision shall be one of the
following:
(i)
Issue the interpretation with no recommended text changes.
(ii)
Issue the interpretation with recommended text changes for the next annual USDO review as identified in § 375-505(20) of the USDO.
(iii)
Issue the interpretation and recommend immediate amendment to the text of the USDO through the general procedures of § 375-505(20) of the USDO.
(iv)
Refer the issue to the Planning Board and Common Council through the submission of an amendment to the USDO text application through the general procedures of § 375-505(20) of the USDO.
(e)
The final decision will be posted on the City’s website and
sent to the Common Council within five days of it becoming final.
(20)
Amendments to Zoning Map or USDO text. All applicable provisions of § 375-504 (General procedures) apply unless specifically modified by the provisions of this subsection.
(a)
Applicability.
(i)
The procedures and standards in this subsection apply to the review
of any proposal to amend the Zoning Map or the text of this USDO.
(ii)
An applicant may apply to the Common Council for a Zoning Map and/or USDO text amendment by submitting an application to the Chief Planning Official, who shall initiate an application in accordance with § 375-505(20)(b)(i).
(iii)
A member of the Common Council may initiate an amendment to
the Zoning Map or the USDO text by the introduction of an ordinance
that shall be shared with the Chief Planning Official for review and
comment, and may request Planning Board input, but shall not require
official Planning Board action prior to adoption.
(b) 
Procedure.
(i)
Application submittal and acceptance.
A.
The application shall be submitted and accepted, and may be withdrawn, in accordance with § 375-504(4).
B.
Any proposed rezoning of land shall require submission of a plan
addressing how traffic, parking, and view impacts will be minimized
and shall demonstrate how the rezoned properties will manage parking,
circulation, noise, and visual impacts, and will meet other applicable
development standards.
(ii)
Planning Board review and action. The Planning Board shall review the application and make a recommendation in accordance with § 375-504(7).
(iii)
Common Council review and decision.
A.
General. The Common Council shall review the application, hold a public hearing and decide the application in accordance with § 375-504(10).
B.
Zoning Map amendment additional requirement. For amendment of
the Zoning Map, the affirmative vote of a majority of the Common Council
is required. However, an affirmative vote of 3/4 of the Council shall
be required whenever a petition protesting an amendment is signed
by the owners of 20% or more of the area of:
(iv)
Post-decision actions and limitations. The post-decision actions and limitations in § 375-504(12) shall apply to the application except as follows:
A.
Zoning Map and USDO text amendments do not expire, but shall remain
valid unless and until the revised Zoning Map or text of this USDO
is subsequently amended in accordance with this subsection.
(c)
Review standards.
(i)
General standards. Amending the Zoning Map and the text of this USDO
is a matter committed to the legislative discretion of the Common
Council. In deciding the application, the Common Council shall consider
and weigh the relevance of, and consider whether and the extent to
which the proposed amendment:
A.
Is consistent with the Comprehensive Plan;
B.
Conflicts with any other provisions of this USDO and the Code of
the City of Albany;
C.
Is required by changed conditions;
D.
Addresses a demonstrated community need;
E.
Would improve compatibility among uses and would ensure efficient
development within the City;
F.
Would result in a logical and orderly development pattern; and
G.
Would avoid significant adverse impacts on the natural environment,
including, but not limited to, water, air, noise, stormwater management,
wildlife, vegetation, wetlands, and the natural functioning of the
environment.
(ii)
Zoning Map amendment additional standards.
A.
Is compatible with existing and proposed uses surrounding the subject
land, and is the appropriate zoning district for the land; and
B.
Would result in development that is adequately served by public facilities
(e.g., streets, potable water, sewerage, stormwater management, solid
waste collection and disposal, schools, parks, police, and fire and
emergency medical facilities).
(d)
Annual review. On April 1 of each year, beginning in 2022, the Chief
Planning Official shall deliver to the Common Council at least once
each calendar year a report that shall include, at a minimum:
(i)
A list of all area variance applications and their status;
(ii)
A list of all use variances and associated decisions (i.e.,
approved, approved with conditions, denied);
(iii)
A list of all conditional use permits and their status;
(iv)
A list of all projects reviewed under development plan review
and their status;
(v)
A list and totals of any approved accessory dwelling units;
(vi)
A list and totals of any units produced under the affordable housing incentives in § 375-401(5);
(vii)
The status of any inclusionary housing or other housing market
studies as well as any recommendations for modifications of the affordable
housing provisions in this USDO based on such studies; and
(viii)
A memorandum identifying any text or map amendments that the Chief Planning Official intends to submit to the Planning Board under this § 375-505(20) (Amendments to Zoning Map or USDO text). These recommended text amendments or map changes may be based on feedback from applicants, new technology, advanced zoning tools, or to further advance the goals of the Comprehensive Plan, as that Plan may be amended from time to time. Annual review.
(21)
Designation of a historic landmark, historic district, or archaeological
district.
(a)
Applicability. This § 375-505(21) applies to all applications to designate a City of Albany landmark, historic district, or archaeological district.
(b)
Procedure.
(i) 
An application to designate a historic landmark, historic district
or archaeological district shall be reviewed and decided pursuant
to the procedures outlined in Table 375.502.1 (Summary of Development
Review Procedures).
(ii)
Notice of a proposed designation shall be sent by registered
mail to the owner of each property proposed for designation or located
adjacent to a property proposed for designation, describing the property
and announcing a public hearing by the Historic Resources Commission
(HRC) to consider the designation. Where the proposed designation
involves so many properties that individual notice to affected owners
is impractical, notice may instead be published at least twice in
a newspaper of general circulation a minimum of 10 days prior to the
date of the public hearing. Once the HRC has issued notice of a proposed
designation, no building permit for work in the affected area shall
be issued by the Commissioner of Buildings and Regulatory Compliance
until the Common Council has approved or disapproved the designation,
unless the HRC has reviewed the permit request according to the procedures
and criteria for a certificate of appropriateness.
(iii)
The HRC shall hold a public hearing before recommending designation
of any landmark or historic district. The HRC, owners of the affected
property and any other interested parties may present testimony or
documentary evidence at the hearing regarding the historic, architectural
or cultural importance of the proposed landmark or historic district.
Such testimony or evidence shall be included in the record of the
hearing. The record may also contain staff reports, public comments
or other evidence offered outside of the hearing.
(iv)
The HRC shall supply the City Clerk's office with a notice and
explanation of its recommendation of designation of a landmark or
historic district. Such notice shall include a description of each
property proposed for landmark designation or the boundaries of each
proposed historic district.
(v)
The City Clerk shall cause the HRC's recommendation to be presented
to the Common Council at its next scheduled meeting.
(vi)
After the HRC's recommendation is presented, the Common Council
may approve or disapprove the proposed designation of a landmark or
historic district.
(vii)
Upon Common Council approval of a designation, a list of the
landmarks or historic districts designated shall be filed with the
City Clerk, the Chief Planning Official, the Chief Building Official,
the City Engineer and the Albany County Hall of Records.
(viii)
Notice of a designation shall be sent to the owner of each property
that is designated or located adjacent to a designated property. Where
the designation involves so many properties that individual notice
to affected owners is impractical, notice may instead be published
at least twice in a newspaper of general circulation.
(c)
Review criteria.
(i)
Individual landmarks. and archaeological districts. The Historic
Resources Commission may recommend designation of a landmark or archaeological
district if it is determined that the landmark or district:
A.
Possesses special character or historic, aesthetic or archaeological
interest or value as part of the cultural, political, economic or
social history of the locality, region, state or nation;
B.
Is identified with historic personages or events significant in local,
state, or national history;
C.
Embodies the distinguishing characteristics of a cultural period,
an architectural style, a period or method of construction, or is
a valuable example of the use of indigenous materials or craftsmanship;
D.
Is the work of a designer, architect or builder whose work has significantly
influenced an age; or
E.
Represents an established and familiar visual feature of the neighborhood
due to a unique location or singular physical characteristic.
(ii)
Historic districts. The Historic Resources Commission may recommend
designation of a group of properties as a historic district if it
determines that the area:
A.
Contains a majority of the properties that meet one or more of the
criteria for designation of a landmark and may have within its boundaries
other properties or structures that, while not of such historic or
architectural significance to be designated as landmarks, contribute
to the overall visual characteristics of the historic resources within
the district;
B.
Constitutes a significant and distinguishable entity whose components
may lack individual distinction;
C.
Embodies the distinctive characteristics of a type, period, or method
of construction;
D.
Portrays the environment of a group of people in an era of history
characterized by a distinctive architectural type;
E.
Has yielded, or is likely to yield, information important in history
or prehistory;
F.
Possesses high artistic value; or
G.
Has a relationship to designated landmarks or a historic district
which makes the area's preservation critical.
(d)
Post-decision actions.
(i)
Upon approval of a designation, a list of the landmarks or districts
designated shall be filed with the City Clerk, the Chief Planning
Official, the Chief Building Official, the City Engineer and the Albany
County Hall of Records.
(ii)
Notice of a designation shall be sent to the owner of each property
that is designated or located adjacent to a designated property. Where
the designation involves so many properties that individual notice
to affected owners is impractical, notice may instead be published
at least twice in a newspaper of general circulation.
(1)
A preexisting development, structure or a use of a lot or structure
that does not conform to the current zoning regulations of the district
in which it is located, shall be considered to be a legal nonconforming
structure or legal nonconforming use, provided that:
(a)
The preexisting development, nonconforming structure, or nonconforming
use was lawfully established in accordance with the applicable laws
and regulations in effect at the time of its establishment;
(b)
The preexisting development, nonconforming structure, or nonconforming
use has been continuously maintained since it was established;
(c)
The preexisting development, nonconforming structure, or nonconforming
use has not been abandoned for a period in excess of one year; and
(d)
The preexisting development, nonconforming structure, or nonconforming
use meets the requirements of this section.
(2)
Conditional uses.
(a)
If a use was established prior to the adoption of this USDO
and previously was legally permitted without a special use or conditional
use permit, but is required to have a conditional use permit under
this USDO, the use will be deemed to have a conditional use permit
under this USDO for the specific use as it existed on the effective
date of this USDO.
(b)
A use that has been deemed a conditional use by nature of its
existence on the effective date of this USDO may continue to be used
for the purposes for which it was used when it became a conditional
use, and may be sold to a new owner or operator, however the building
or parcel of land shall not be enlarged to accommodate any expansion
of the conditional use.
(c)
A conditional use that had been authorized to continue to operate
as a conditional use pursuant to this Subsection (2) but has been
discontinued or vacated for a period of one year or more shall be
considered abandoned, and a new conditional use permit will be required
to reactivate or resume the use.
(3)
Legally
nonconforming lots.
(a)
A lot that does not conform to the standards in this USDO for the zoning district in which it is located may nevertheless be used for any use for which a conforming lot may be used, but must comply with all dimensional standards in § 375-401, all form-based standards in § 375-402, and all other provisions of this USDO applicable to property in that zoning district.
(b)
On a nonconforming lot of record, all front and rear yards and setbacks
as well as subsequent expansions must conform to zoning district yard
requirements.
(4)
Legally nonconforming uses.
(a)
Continuation without expansion of structure. Any use existing
on or before the adoption of this USDO that is in any way made nonconforming
under this USDO or that was legally nonconforming at the time of the
adoption of this USDO, including operational requirements such as
hours of operation, provision of off-street parking spaces, and noise
limitations, may continue to be used for the purposes for which it
was used when it became nonconforming, and may be sold to a new owner
or operator, however the building or parcel of land shall not be enlarged
to accommodate any expansion of the nonconforming use.
(b)
Hours of operation. Where this USDO establishes hours of operation
that differ from those applicable under prior regulations, permits,
or approvals, operations that open earlier or close later shall be
considered legally nonconforming notwithstanding a prior permit or
approval from the City authorizing those different hours of operation.
(c)
Reestablishment.
(i)
Except as otherwise permitted in Subsection (4)(c)(ii) and (iii)
below, no nonconforming use may be reestablished after it has been
discontinued or vacated for a period of one year or more.
(ii)
A property owner or administrator of an estate
may apply to the Chief Planning Official for continuation of legal
nonconforming status for a period not exceeding 90 days beyond the
one year allotted by law if the applicant shows that:
A.
The discontinuance resulted from circumstances such as death
of a property owner, foreclosure or bankruptcy; and
B.
Continuous good faith efforts to resume the use have been shown.
If discontinuance in use is due to the loss of a tenant, the owner
must show that reasonable action to obtain a new tenant has continued,
such as listing the property with a real estate agent, receipt of
good faith offers on a regular basis by interested persons, existence
of a telephone number which is available to persons interested in
the property and evidence of continuous active marketing efforts,
such as advertisements in appropriate media and current signage on
the property.
(iii)
A denial of an application for continuation of legal nonconforming status may be appealed by the property owner to the Board of Zoning Appeals in accordance with § 375-504(9).
(d)
Substitution. No nonconforming use may be converted to a different
nonconforming use unless the Board of Zoning Appeals determines that
the alternative use is in the same or a less intense land use category
based on Table 375.302.1 (Permitted Use Table). An alternative use
may only be found to be in the same or a less intense land use category
if it is a listed use in the Permitted Use Table and is allowed in
all zones with the same or fewer conditions than the prior legal nonconforming
use.
(e)
Damage or destruction.
(i)
In the event that any structure containing a legally nonconforming
use is damaged or destroyed to the extent of more than 50% of the
cost of replacement of the structure, as determined by the City Tax
Assessor, any reuse of the structure shall conform to all regulations
of the zoning district in which it is located per this USDO.
(ii)
Where any such structure is damaged or destroyed
to the extent of 50% or less of the cost of replacement of the structure
new, repair or restoration of such structure may be made; to enable
continued operation of the nonconforming use, provided that no repairs
or restorations shall be made which would create or increase any parking,
yard or space and bulk nonconformity, nor shall any repairs or restoration
(except in conformity with the applicable zoning district regulations)
be made unless a building permit is obtained and restoration is actually
begun within one year after the date of such partial damage or destruction
and is diligently pursued to completion.
(f)
Repair and maintenance. Normal maintenance and repairs, including
but not limited to replacement, and installation or relocation of
walls, partitions, fixtures, wiring or plumbing, may be performed
on mechanical systems or existing portions of any structure devoted
in whole or in part to a nonconforming use.
(g)
Enlargement of structure. No structure devoted in whole or in
part to a nonconforming use shall be altered, enlarged or added to
in any manner which would enlarge the nonconforming portion or create
a new nonconformity.
(h)
Multi-unit dwelling exception. Any conforming multi-unit dwelling
use in the R-2 or R-T Zoning District in existence on June 1, 2017,
will be considered a conforming use of property notwithstanding any
provisions of this USDO limiting the availability of multi-unit uses
or the number of units permitted in the R-2 or R-T District in the
future.
(5)
Legally nonconforming structures.
(a)
A legally nonconforming structure may be continued or sold,
and may have normal and necessary maintenance and repairs.
(b)
No structural alterations may be made to a nonconforming structure
unless those alterations bring the structure into closer compliance
with this USDO, as determined by the Chief Planning Official.
(c)
In the event of a natural disaster and a nonconforming structure
is damaged or destroyed, rebuilding in full compliance with this USDO
is not required unless the cost to repair the existing structure exceeds
75% of the cost of replacement as determined by the Tax Assessor.
In the R-T District, following such rebuilding each dwelling unit
in the structure shall have an average minimum size of at least 750
square feet per unit.
(6)
Legally nonconforming signs.
(a)
All signs that have been lawfully erected shall be deemed to
be legal and lawful signs and shall be maintained subject to the provisions
of this section.
(b)
On-premises signs legally erected before the adoption of this USDO that do not conform to the provisions of § 375-409 may continue to be maintained as long as the specific business or use to which any sign pertains continues to operate at the same property; however, they shall not be enlarged, increased in height, redesigned or altered in any way, unless to conform to the requirements of this USDO.
(7)
Legally nonconforming parking or site improvements. Conforming land uses and structures on parcels or lots that do not comply with one or more of the parking and loading standards in § 375-405, the landscaping, screening and buffering standards in § 375-406, or the outdoor lighting standards in § 375-408, may be expanded, revised, or redeveloped subject to the following conditions:
(a)
The expansion, revision, or redevelopment must be to land uses
and structures permitted in the zoning district where the property
is located;
(c)
Any expansion or change in land uses that increases the amount
of parking required on the property shall require that the net increase
in required parking be provided on-site;
(d)
Any increase of impervious surface of 10% or more on the site
shall comply with all standards and criteria in this USDO; and
(e)
Any redevelopment of the property that results in the demolition
of all or part of an existing principal structure and/or construction
of new principal structures shall require that the property be brought
into compliance with all applicable requirements of this USDO.
(8)
Determinations
of status of nonconformities.
(a)
Any person having a legal or equitable interest in a preexisting
development or nonconforming property may apply for a determination
from the Chief Planning Official on such forms as the Chief Planning
Official shall prescribe.
(b)
Responsibility of the applicant/property owner. The burden of proving
a structure or use is a legal nonconforming use resides with the property
owner or other person with an equitable interest.
(i)
It shall be the applicant and/or property owner's responsibility to provide any and all documentation or evidence required to support a preexisting development or nonconformity claim under the provisions of this § 375-506. Although City employees may assist applicants, no City employee or official shall be responsible for gathering evidence or documentation to support a claim of legal nonconformity.
(ii)
Such evidence shall be sufficient to prove:
(iii)
Evidence may include but is not limited to photographs of the
property or use (dated or with an affidavit as to the date of the
photograph), utility bills, property tax statements or receipts, copies
of leases or subleases, evidence of goods and services rendered from
the property (dated or with an affidavit as to the date of the evidence),
or notarized affidavits from the owner(s) of one or more properties
within 300 feet of the subject property.
(iv)
Where an applicant seeks a certificate to establish the legal or
nonconforming status of a structure or other nonconformity only, the
Chief Planning Official shall issue a determination upon review of
a certified survey, building permits, or other documentation deemed
necessary or sufficient by the Chief Planning Official.
(c)
Notice to interested parties.
(i)
The Chief Planning Officer shall provide interested property owners,
members of the public, and the Common Council with notice of an application
for a determination of legal nonconformity similar to the content
of notices for applications for variances, and shall include information
on how members of the public may submit comments or documentation
to be considered by the Chief Planning Official.
(ii)
A notice of the application shall be posted at the property on each
side the subject property faces a public street with the same information
and in the same manner as is required for notice of a variance request
and shall include information on how members of the public may submit
comments or documentation to be considered by the Chief Planning Official.
(d)
The Chief Planning Official may not make a determination relating
to a nonconforming use until 14 days after the date the public notices
were mailed or the date the notice was posted at the subject property,
whichever is later.
(i)
The Chief Planning Official shall review all proof submitted by the
applicant and all other comments and documents submitted. The applicant
shall only be entitled to a determination finding a legal nonconforming
use or structure if the evidence submitted clearly establishes that
the property meets each and every criteria of a legal nonconformity
set forth in Subsection (1) above.
(e)
The determination of the Chief Planning Official shall be mailed
to the applicant, the City Clerk, designated Common Council staff,
any person who commented in writing regarding the application, and
posted on the Planning Department website within five days of its
issuance.
This section describes the City's powers to enforce the provisions
of this USDO provided by law, and includes all enforcement powers
available under the regulations in effect prior to the zoning, subdivision,
and land use regulations that were replaced by this USDO.
(1)
Compliance required. Compliance with all the procedures, standards,
and other provisions of this USDO, and with any conditions attached
to any permit or approval issued pursuant to this USDO, is required
by all persons owning, developing, managing, using, or occupying land
or structures in the City.
(2)
Inspections. It shall be the duty of the Chief Building Official
to inspect work during the course of construction to ensure compliance.
In the event that any such inspection reveals that the work is not
being carried out in compliance with the terms and conditions of any
permit or approval issued under this USDO, the Chief Building Official
shall order the work to cease and may order corrections to be made.
In addition, the Chief Building Official may revoke the building permit.
(3)
Complaints of violations. Any person alleging violation of this USDO
may file a complaint in writing with the Chief Planning Official,
who shall investigate the same. If reasonable evidence of a violation
exists, the Chief Planning Official may then revoke or suspend the
permit, issue a notice of violation and an order to cease and desist,
or take any other action to prevent a further violation and/or remedy
the existing violation authorized by this USDO.
(4)
Violations and responsible parties.
(a)
Violations generally.
(i)
Failure to comply with USDO or term or condition of approval.
Any failure to comply with a standard, requirement, prohibition, or
limitation imposed by this USDO, or the terms or conditions of any
development permit, development order, or authorization granted in
accordance with this USDO shall constitute a violation of this USDO,
punishable as provided in this section. Each day a violation continues
constitutes a separate violation.
(ii)
Development permits or approvals only authorize
development approved. Development permits or approvals issued under
this USDO authorize only the specific use, arrangement, location,
design, density or intensity, and development set forth in such development
permit or approval.
(iii)
Obtaining permit or approval based on false or
misleading information. Any development, use, or other activity which
is issued a permit or granted an approval based on false or misleading
information shall be a violation of this USDO.
(b)
Specific violations. It shall be a violation of this Code to
undertake any activity contrary to the provisions of this USDO, including
but not limited to any of the following:
(i)
Develop land or a structure without first obtaining all appropriate
development permits and approvals, and complying with their terms
and conditions.
(ii)
Occupy or use land or a structure without first
obtaining all appropriate development permits and approvals, and complying
with their terms and conditions.
(iii)
Subdivide land without first obtaining all appropriate
development permits and approvals required to engage in subdivision,
and complying with their terms and conditions.
(iv)
Excavate, grade, cut, clear, or undertake any
land-disturbing activity without first obtaining all appropriate development
permits and approvals, and complying with their terms and conditions.
(v)
Remove existing trees from a site or parcel of land without
first obtaining appropriate development permits and approvals, and
complying with their terms and conditions.
(vi)
Disturb any landscaped area or vegetation required
by this USDO.
(vii)
Install, create, erect, alter, or maintain any
sign without first obtaining the appropriate development permits and
approvals, and complying with their terms and conditions.
(viii)
Fail to remove any sign installed, created,
erected, or maintained in violation of this USDO, or for which the
relevant development permit or approval has expired.
(ix)
Create, expand, replace, or change any nonconformity
except in compliance with this USDO.
(x)
Reduce or diminish the requirements for development, design,
or dimensional standards below the minimum required by this USDO.
(xi)
Increase the intensity or density of development,
except in accordance with the standards of this USDO.
(xii)
Use or operate a business out of a structure
without obtaining and maintaining a valid business tax receipt.
(xiii)
Demolish, alter, construct, or permit a designated landmark or other building or structure in a historic district to fall into serious disrepair, or to be damaged in a way that increases its likelihood of total failure, without obtaining approval of a certificate of appropriateness pursuant to § 375-505(4), as applicable.
(xiv)
Through any act or omission, fail to comply with
any other provisions, procedures, or standards as required by this
USDO.
(5)
General nuisances.
(a)
Upon the following circumstances, the Board of Zoning Appeals
shall hold a public hearing and make a finding with respect to the
nuisance or hazardous condition that exists and shall determine the
necessity of terminating such nuisance:
(i)
A complaint registered by the Chief Planning Official signed
by 50% of the property owners within 200 feet of a lot or building,
or the Common Council member in whose ward such lot or building is
situated, that the lot or the use of the property or building is considered
to be a general nuisance or a hazard to the health, safety, welfare
of uses or structures within 200 feet of such lot or uses; or
(ii)
Certification of the Chief Building Official that
six or more complaints about noise, drunkenness, or disruptive behavior
associated with a restaurant, bar, or tavern have been received within
a twelve-month period.
(b)
Upon such a finding, the use of the property or building shall
be terminated for a period of up to two years, or the hours or conditions
of operation for any business or activity on the property where the
nuisance occurred shall be restricted so as to prevent the nuisance
from recurring. The applicant shall be permitted a reasonable time
within which to terminate the activity.
(c)
If the terminated activity was operating as a legally nonconforming
use, the legal nonconforming use status shall be lost by any termination
due to a finding of nuisance. If the terminated activity is one that
is required to have a conditional use permit in Table 375.302.1 (Permitted
Use Table), then the use may not resume before a conditional use permit
is obtained.
(d)
In addition to the specific provisions in this § 375-507(5), the Board of Zoning Appeals shall retain all powers available to it under this USDO or state law.
(6)
Remedies and penalties.
(a)
Deny or withhold permits and approvals.
(i)
The Chief Planning Official or Chief Building Official may deny
or withhold all permits and approvals, including building permits,
certificates of occupancy, business licenses, or other forms of authorization
to use or develop any land, structure, or improvements, until an alleged
violation, associated civil penalty, and/or lien resulting from a
previous final order related to such property, use, or development
is corrected. This provision shall apply whether or not the current
owner or applicant for the permit or other approval is responsible
for the violation.
(ii)
If the City determines that a designated landmark
or other building or structure within a historic district has been
demolished in violation of this USDO, the Chief Planning Official
may withhold all permits and approvals for the subject property for
a period of two years from the date of the completion of the improper
demolition.
(b)
Revoke permits and approvals.
(i)
Any permit or other form of approval required under this USDO
may be revoked, after notice and a hearing, when the Chief Planning
Official determines that:
(ii)
Written notice of revocation shall be served upon
the property owner, agent, applicant, or other person to whom the
entitlement was issued, including the reasons for the revocation,
or such notice may be posted in a prominent location at the place
of violation. No work or construction shall proceed after service
of the revocation notice.
(iii)
Issuance of a permit under this USDO does not
authorize violation of any other code or ordinance of the City.
(c)
Stop-work orders.
(i)
Whenever any building, structure, site, or part thereof is being
demolished, constructed, reconstructed, altered, or repaired in a
hazardous manner, in substantial violation of any state or local building
law, or in a manner that endangers life or property, the Chief Planning
Official or the Chief Building Official has the authority to issue
a stop-work order for the specific part of the work that is in violation
or presents the hazard.
(ii)
With or without revoking permits, the Chief Planning
Official or Chief Building Official may issue an order to stop work
on any property on which there is an uncorrected violation of either
a provision of this USDO or a provision of an approval or other form
of authorization issued under this USDO.
(iii)
The stop-work order shall be in writing and directed
to the person doing the work, and shall specify the provisions of
this USDO or other law allegedly in violation. After any such order
has been served, no work shall proceed on any building, structure,
or tract of land covered by such order, except to correct such violation
or comply with the order.
(iv)
Once conditions for resumption of the work have
been met, the Chief Planning Official or Chief Building Official shall
rescind the stop-work order.
(d)
Criminal and civil penalties.
(i)
Any convictions of violating or assisting in the violation of
this USDO shall be punishable by a fine not to exceed $1,000 or by
imprisonment not to exceed 15 days, or both, for each offense. Each
day that a violation is continued uncorrected or resumed, after the
violator is notified, shall constitute a separate offense.
(ii)
Violation of any provision of this USDO, or any
amendments to it, shall also subject the offender to a civil monetary
penalty in an amount to be established by the Common Council. If the
offender fails to pay this penalty within 15 days after being cited
for a violation, the penalty may be recovered by the City in a civil
action in the nature of a debt. A civil penalty may not be appealed
if the offender was sent a final notice of violation in accordance
with this section and did not take an appeal to the City within 20
days of the date of such final notice.
(e)
Restoration of the property. If the City determines that there has been a violation of the standards and requirements of § 375-206(1) (HR-O Historic Resources Overlay), any certificate of appropriateness issued under § 375-505(4) or any demolition review issued under § 375-505(7), the City may require the property owner to restore the property to its appearance prior to the violation.
(f)
Abatement. The City may abate the violation through the following
process.
(i)
Before action is taken to abate a violation, a final warning
notice shall be posted on the property and served personally or by
certified mail with return receipt required to the property owner.
(ii)
Unless this notice is appealed to the Common Council
within 10 days of the delivery of the final warning, the Chief Planning
Official or Chief Building Official shall proceed to abate the violation.
(iii)
The Chief Planning Official or Chief Building
Official shall keep an account of the cost, including incidental expenses,
incurred by the City in the abatement of any violation. The Chief
Planning Official or Chief Building Official shall forward a bill
for collection to the violator and the property owner specifying the
nature and costs of the work performed. For purposes of this section,
the term "incidental expenses" shall include, but not be limited to,
the actual expenses and costs to the City in the preparation of the
notices, specifications and contracts, work inspection, and interest
from the date of completion at the rate prescribed by law for delinquent
real property taxes.
(iv)
The responsibility for payment of the charges
for abatement as set forth in this section shall rest solely upon
the owners of the property upon which the abatement occurred. Such
charges shall become a lien upon the real property upon which the
violation was located. When charges for abatement remain unpaid after
30 days from billing, the Chief Planning Official or Chief Building
Official shall record a claim of lien at the City Clerk and Recorder's
office. The lien shall be subordinate to all existing special assessment
liens previously imposed upon the same property and shall be paramount
to all other liens except for state or municipal property taxes, with
which it shall be upon a parity. The lien shall continue until the
charges and all interest due and payable thereon are paid.
