A.
Applicability. The ZBA shall have the power, on appeal from the decision
or determination of any administrative official charged with enforcement
of this chapter, to reverse or affirm, wholly or partly, or modify
an order, requirement, decision, interpretation, or determination
by the granting of either use variances or area variances as authorized
by New York State Village Law. The variance procedures may not be
used to:
B.
Burden of proof. The applicant seeking the variance shall have the
burden of presenting sufficient evidence to allow the ZBA to reach
a conclusion as set forth below as well as the burden of persuasion
on those items.
C.
Approval process.
(1)
Applications for zoning variances may be initiated only by the owner of the subject property or by the owner's authorized agent. Applications for a zoning variance must be submitted in accordance with Article XVI of this chapter.
(2)
A public hearing shall be held by the ZBA prior to issuing a decision on any variance. Notice of the public hearing shall be made via media, posting, and mail as provided for in § 250-166 and by New York State Village Law.
(3)
Decisions.
(a)
The ZBA shall decide upon the appeal within 45 days after the
closing of the public hearing. The time within which the ZBA may render
its decision may be extended by mutual consent of the applicant and
ZBA.
(b)
The ZBA 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.
(c)
The decision of the ZBA shall be filed with the Village Clerk
within five business days after the decision is rendered, and a copy
mailed to the applicant.
D.
Use variances.
(1)
A use variance authorizes the use of land for a purpose that
is otherwise not allowed or is prohibited by this chapter. A finding
of unnecessary hardship is required to properly grant a use variance.
(2)
The ZBA shall not grant a use variance without the applicant
having shown that applicable zoning regulations and restrictions have
caused unnecessary hardship. In order to prove such unnecessary hardship,
per New York State Village Law, the applicant shall demonstrate to
the ZBA that for each and every permitted use under the zoning regulations
for the district where the property is located the following conditions
exist:
(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.
(3)
The ZBA, in the granting of use variances, shall grant the minimum
variance that it shall deem necessary and adequate to address the
unnecessary hardship proved 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.
E.
Area variances.
(1)
An area variance authorizes the use of land that is not allowed
by the dimensional or physical requirements set forth in this chapter.
An area variance is one that does not involve a use that is otherwise
prohibited by this chapter. A finding of practical difficulty is required
to properly grant an area variance.
(2)
In making its determination, the ZBA 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 the following as required by New York State Village
Law:
(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 in relation
to the requirement;
(d)
Whether the proposed variance will have an adverse effect or
impact on the physical or environmental conditions in the neighborhood
or district; and
(e)
Whether the alleged difficulty was self-created; which consideration
shall be relevant to the decision of the Board of Appeals but shall
not necessarily preclude the granting of the area variance.
(3)
The ZBA, 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.
F.
Imposition of conditions. The ZBA shall, in the granting of both
use variances and area variances, have the authority to impose such
reasonable conditions and restrictions as are directly related to
and incidental to the proposed use of the property. Such conditions
shall be consistent with the spirit and intent of the Village Code
and shall be imposed for the purpose of minimizing any adverse impact
such variance may have on the neighborhood or community.
G.
Transferability. Zoning variance approval runs with the land and
is not affected by changes of tenancy, ownership, or management.
H.
Amendments. A request for changes in conditions of approval of a
zoning variance must be processed as a new variance application, including
the requirements for fees, notices, and hearings.
A.
Applicability. The ZBA is authorized to hear and decide appeals where
it is alleged there has been an error in interpretation of any zoning
code provisions or in any order, requirement, decision, or determination
made by the CEO or other administrative official under the Village
Code.
B.
Right to appeal. Appeals may be filed by any person aggrieved by
an administrative decision of the CEO or other agent duly designated
to the administration and enforcement of this chapter. The ZBA is
authorized to make determinations about whether individuals filing
appeals are "aggrieved by the decision or action."
C.
D.
Stay upon appeal. An appeal shall stay all proceedings in furtherance
of the appealed action, unless the CEO certifies to the ZBA that a
stay would, in his or her opinion, cause imminent peril to life or
property. In such case, the proceedings shall not be stayed otherwise
than by a restraining order granted by the ZBA or by a court of record
on application to the CEO.
E.
Record of decision. Upon acceptance of an appeal application, the
Village Clerk must transmit to the ZBA all papers constituting the
record upon which the action appealed is taken.
F.
Referrals and SEQR. All appeals shall complete the municipal referral
procedure and SEQR documentation as required by New York State Village
Law.
G.
Public hearing required.
(1)
A public hearing shall be held by the ZBA prior to issuing a decision on any appeal. Notice of the public hearing shall be made via media, posting, and mail as provided for in § 250-166 and by New York State Village Law.
(2)
A motion for the ZBA to hold a rehearing to review any order,
decision or determination not previously reheard may be made by any
member of the ZBA. A unanimous vote of all members of the ZBA then
present is required for such rehearing to occur. Such rehearing is
subject to the same notice provisions as an original hearing. Upon
such rehearing, the ZBA may reverse, modify or annul its original
order, decision or determination upon the unanimous vote of all members
then present, provided the ZBA finds that the rights vested in persons
acting in good faith in reliance upon the reheard order, decision
or determination will not be prejudiced thereby.
H.
Issuance of decision.
(1)
The ZBA must take action on the appeal within 45 days of the
close of the public hearing.
(2)
For the purposes of review and issuance of decision, the ZBA
shall have all the powers of the Village official or agent from whom
the appeal is taken. The ZBA may reverse the appeal or affirm the
appeal, in whole or in part, or modify the decision being appealed.
(3)
In acting on the appeal, the ZBA must grant to the decision
or action a presumption of correctness, placing the burden of persuasion
of error on the appellant.
I.
Article 78 proceeding.
(1)
Any person or persons jointly or severally aggrieved by any
decision of the ZBA or other such review board charged with the administration
and enforcement of this chapter may apply to the New York State Supreme
Court for review by a proceeding under Article 78 of the Civil Practice
Law and Rules.
(2)
Such proceeding shall be instituted within 30 days after the
filing of the review board's decision in the office of the Village
Clerk.
(3)
Costs shall not be charged to the Village unless it shall appear
to the Court that the Village acted in gross negligence or in bad
faith or with malice in making its decision.
