The Board of Appeals, consisting of five members, as constituted
and empowered under § 267 of Article 16 of the Town Law
on the effective date of this chapter, shall be continued. Vacancies
occurring in such Board shall be filled in accordance with the Town
Law. The Board of Appeals shall have all the powers and perform all
the duties prescribed by statute and by this chapter.
The Board of Appeals shall hear and decide appeals where it
is alleged that there is an error or misrepresentation in any order,
requirement, decision or determination by any administrative official
of the Town of Sardinia charged with the enforcement of the provisions
of this chapter. The Board of Appeals may reverse, modify or affirm,
in whole or in part, any such appealed order, requirement, decision
or determination appealed from, and may make such order, requirement,
decision or determination as in its opinion ought to be made in strictly
applying and interpreting the provisions of this chapter, and for
such purposes shall have all the powers of the officer from whom the
appeal is taken.
A.Â
On an appeal from an order, requirement, decision or determination
of any administrative official charged with the enforcement of this
chapter, where it is alleged by the appellant that there are practical
difficulties or unnecessary hardships in the way of carrying out the
strict application of any provision of this chapter, the Board of
Appeals may grant a variance from the strict application of such provisions,
provided that the findings of the Board of Appeals are consistent
with the following:
B.Â
AREA VARIANCE
(1)Â
(a)Â
(b)Â
(c)Â
(d)Â
(e)Â
(2)Â
USE VARIANCE
(1)Â
(2)Â
(3)Â
(4)Â
Variances defined. The following define the two types of variances
which the Zoning Board of Appeals has the power to grant and the criteria
which the Zoning Board of Appeals must consider in order to grant
each type of variance:
The authorization by the Zoning Board of Appeals for the
use of land in a manner which is not allowed by the dimensional or
physical requirements of the applicable zoning regulations. In making
its determination, the Zoning Board of Appeals 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 by such grant.
In making such determination, the Board shall also consider:
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;
Whether the benefit sought by the applicant can be achieved
by some method feasible for the applicant to pursue, other than an
area variance;
Whether the requested area variance is substantial;
Whether the proposed area variance will have an adverse effect
or impact on the physical or environmental conditions in the neighborhood
or district; and
Whether the alleged difficulty was self-created.
The Board of Appeals, in the granting of area variances, shall
grant the minimum variance that it shall deem necessary and adequate
and at the same time preserve and protect the character of the neighborhood
and the health, safety and welfare of the community.
The authorization by the Zoning Board of Appeals for the
use of land for a purpose which is otherwise not allowed or is prohibited
by the applicable zoning regulations. No such use variance shall be
granted by the Board of Appeals 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 Board of Appeals that for each and every
permitted use under the zoning regulations for the particular district
where the property is located:
The applicant cannot realize a reasonable return, provided that
lack of return is substantial as demonstrated by competent financial
evidence;
That the alleged hardship relating to the property in question
is unique and does not apply to a substantial portion of the district
or neighborhood;
That the requested use variance, if granted, will not alter
the essential character of the neighborhood; and
That the alleged hardship has not been self-created.
C.Â
The Board of Appeals, in the granting of the use variances, shall
grant the minimum variance that it shall deem necessary and adequate
to address the unnecessary hardship proven by the applicant, and at
the same time preserve and protect the character of the neighborhood
and the health, safety and welfare of the community.
D.Â
Imposition of conditions. The Board of Appeals shall, in the granting
of both use variances and area variances, have authority to impose
such reasonable conditions and restrictions as are directly related
to and incidental to the proposed use of the property, or the period
of time such variance shall be in effect. Such conditions shall be
consistent with the spirit and intent of this chapter and shall be
imposed for the purpose of minimizing any adverse impact such variance
may have on a neighborhood or community, public safety secured and
substantial justice done. Such conditions or restrictions shall be
incorporated in the building permit and certificate of zoning compliance
or certificate of occupancy.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
A.Â
The Board of Appeals shall hear and decide, in accordance with the
provisions of this article, all applications for special permits or
for modifications of provisions of this chapter in all such cases
upon which the Board of Appeals is specifically authorized to pass,
or to make any other determination required by this chapter.
B.Â
In authorizing any specified special permit or specified modification,
or in making any required determination, all required findings shall
be made, and in the case of special permits or modifications, the
Board of Appeals may prescribe appropriate conditions to minimize
adverse effects on the character of the surrounding area and to safeguard
the public health, safety, convenience or general welfare.
C.Â
No special permit or modification of the provisions of this chapter
shall be authorized by the Board of Appeals unless, in addition to
other findings specified in this chapter, it finds that such special
permit or modification:
(1)Â
Will be in harmony with the general purposes and intent of this chapter.
(2)Â
Will not tend to depreciate the value of adjacent property.
(3)Â
Will not create a hazard to health, safety or the general welfare.
(4)Â
Will not alter the essential character of the neighborhood nor be
detrimental to the residents thereof.
(5)Â
Will not otherwise be detrimental to the public convenience and welfare.
A.Â
Temporary structures or uses (not including signs). The Board of
Appeals may authorize a temporary and revocable permit for not more
than two years for uses or structures that do not conform with the
regulations of this chapter for the district in which they are located,
provided that the following findings are made:
B.Â
Permitted temporary structures or uses; extension of time limit.
The Board of Appeals may authorize the continuation of temporary structures
or uses incidental to construction work, provided that the following
findings are made:
A.Â
Rules of conduct and procedure. The Board of Appeals, consistent
with law and ordinance, may adopt rules of conduct and procedure.
B.Â
Filing appeals. An appeal to the Board of Appeals from any ruling
of any administrative officer charged with the enforcement of this
chapter may be taken by any person aggrieved or by any officer, department,
board or bureau of the Town. Such appeal shall be taken within 60
days after the filing of a determination by the administrative officer
by filing with the officer from whom the appeal is taken and with
the Board of Appeals a notice of appeal, specifying the grounds thereof.
The officer from whom the appeal is taken shall forthwith transmit
to the Board of Appeals all the papers constituting the record upon
which the action appealed from was taken.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
C.Â
Filing applications. An application for any matter upon which the
Board of Appeals is required to hear may be made to the Town Clerk,
along with a filing fee as set by Town Board resolution, by the owner
or tenant of the property (or a duly authorized agent) for which such
appeal or application is sought.
D.Â
Meetings, witnesses and records.
(1)Â
Meetings of the Board of Appeals shall be held at the call of
the Chairman and held at the Sardinia Town Hall. All meetings shall
be open to the public. The Chairman of the Board of Appeals or, in
his/her absence, the Acting Chairman may administer oaths and compel
the attendance of witnesses.
(2)Â
The Board of Appeals shall keep minutes of its proceedings,
showing the vote of each member upon every question or, if absent
or failing to vote, indicating such fact, and shall keep records of
its examination and other official action. Every rule, regulation,
amendment or repeal thereof and every order, requirement, decision
or determination of the Board of Appeals shall be filed in the office
of the Town Clerk within five days of the decision being rendered
and shall be a public record.
E.Â
Stay of proceedings. Any appeal to the Board of Appeals shall stay
all proceedings in furtherance of the action appealed from, except
as otherwise provided in Town Law § 267-a, Subdivision 6,
Stay upon appeal.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
F.Â
Public hearing. The Board of Appeals shall fix a reasonable time
for a hearing of an appeal, applications for special permits or modifications
or regulations, or other matters referred to it, and shall give public
notice thereof in accordance with the provisions of Town Law § 267-a,
Subdivision 7, Hearing on appeal.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
G.Â
Decisions of the Board of Appeals.
(1)Â
The concurring vote of a majority of the members of the Board
of Appeals shall be necessary to reverse any order, requirement, decision
or determination appealed from, to decide in favor of the applicant
any matter upon which it is required to pass under this chapter, or
to effect any variation in this chapter.
(2)Â
Every decision of the Board of Appeals shall be by resolution.
Where findings are required, the decision shall set forth each required
finding, supported by substantial evidence or other data considered
by the Board of Appeals in each specific case, or in the case of denial,
the decision shall include the findings which are not satisfied.
Any variance, special permit or modification of regulations
authorized by the Board of Appeals shall be automatically revoked
unless a building permit conforming to all the conditions and requirements
established by the Board of Appeals is obtained within six months
of the date of approval by the Board of Appeals and construction is
commenced within one year of such date of approval.
Failure to comply with any condition or restriction prescribed
by the Board of Appeals in approving any appeal for a variance, application
for a special permit or a modification of regulations shall constitute
a violation. Such violation may constitute the basis for revocation
of a variance, special permit or modification, or for imposing penalties
and other applicable remedies.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
There shall be no rehearing of an appeal or application by the
Board of Appeals, except in accordance with Article 16, § 267-a,
Subdivision 12, Rehearing, of the Town Law.