A.
Board established. Pursuant to Article 7 of the Village Law, § 7-718,
the Village Board of the incorporated Village of Newark does hereby
establish a Village Zoning Board, consisting of five members and up
to three alternate members.
B.
Membership; terms of office.
(1)
A Board of Appeals is hereby created to consist of five members and
a Chairperson thereof to be appointed by the Mayor, subject to the
approval of the Board of Trustees. The Board of Appeals shall appoint
a Secretary and shall prescribe rules for the conduct of its affairs.
Terms of office of members shall be for five years. Terms of original
members shall be staggered so that one member's term shall expire
in each year for the first five years. Subsequent members shall be
appointed for five-year terms and shall serve until the expiration
of said term and the appointment of their successors in office.
(2)
Position established for alternate members. The position of alternate
member(s) of the Zoning Board of the Village of Newark is hereby established.
The Village Board is authorized to appoint up to three alternate members.
(3)
Terms. All alternate members of the Zoning Board of the Village of
Newark shall be appointed for a one-year term and in the same manner
as regularly appointed members of the Zoning Board.
(4)
Duties.
(a)
Alternate members shall serve in the absence, unavailability
or inability of a regular member of the Zoning Board to serve. Copies
of notices shall be sent to all members. When a meeting of the Zoning
Board shall be duly noticed and called for discussion, if it shall
become apparent that a regular member of the Zoning Board will be
unable to hear and deliberate upon an application, then an alternate
member of the Zoning Board, shall be duly authorized to hear the application,
to deliberate and to vote with full force and effect as if duly appointed
a regular member of the Board.
(b)
All members and alternates shall complete yearly training subject
to requirements put forth by the Village Board.
The Board of Appeals shall have all the powers and duties prescribed
by law and by this article, which are more particularly specified
as follows:
A.
The Board of Appeals shall act in strict accordance with the procedure
specified by law and by this article. All appeals and applications
made to the Board shall be in writing, on forms prescribed by the
Board. Every appeal or application shall refer to the specific provision
of the article involved and shall exactly set forth the interpretation
that is claimed, the use for which the special permit is sought, or
the details of the variance that is applied for and the ground on
which it is claimed that the variance should be granted, as the case
may be.
B.
At least 10 days before the date of the hearing required by law on
an application or appeal to the Board of Appeals, the Secretary of
said Board shall transmit to the Planning Board a copy of the notice
of the aforesaid hearing and shall request that the Planning Board
submit to the Board of Appeals its opinion on said application or
appeal, and the Planning Board shall submit a report of such advisory
opinion prior to the date of said hearing. Upon failure to submit
such report, the Planning Board shall be deemed to have approved the
application or appeal.
C.
Meetings; minutes; records. Meetings of such Board of Appeals shall
be open to the public to the extent provided in Article 7 of the Public
Officers Law. Such 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 also keep records
of its examinations and other official actions.
D.
Filing requirements. Every rule, regulation, every amendment or repeal
thereof, and every order, requirement, decision or determination of
the Board of Appeals shall be filed in the office of the Village Clerk
within five days and shall be a public record. Minutes shall be provided
to the Village Clerk and the Village Board within two weeks, and a
copy thereof mailed to the applicant.
E.
Assistance to Board of Appeals. The Board shall have the authority
to call upon any department, agency or employee of the Village for
such assistance as shall be deemed necessary and as shall be authorized
by the Village Board.
F.
Hearing appeals. The jurisdiction of the Board of Appeals shall be
appellate only and shall be limited to hearing and deciding appeals
from and reviewing any order, requirement, decision, interpretation
or determination made by an administrative official charged with the
enforcement of any local law adopted pursuant to this article. Such
department, agency or employee shall be reimbursed for any expenses
incurred as a result of such assistance. The concurring vote of a
majority of the members of the Board of Appeals shall be necessary
to reverse any order, requirement, decision or determination of any
such administrative official, or to grant a use variance, area variance,
or special permit. Such appeal may be taken by any person aggrieved
or by an officer, department, board or bureau of the Village.
G.
Special permits. The Board shall have the authority to issue special
permits for any of the uses for which this article requires the obtaining
of such permits from the Board of Appeals.
H.
Time of appeal. Such appeal shall be taken within 60 days after the
filing of any order, requirement, decision, interpretation or determination
of the administrative official charged with the enforcement of such
local law by filing with such administrative official and with the
Board of Appeals a notice of appeal, specifying the grounds thereof
and the relief sought. The administrative official 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. The cost of sending or publishing any notices relating
to such appeal shall be borne by the appealing party and shall be
paid to the Village of Newark prior to the hearing of such appeal.
I.
Stay upon appeal. An appeal shall stay all proceedings in furtherance
of the action appealed from, unless the administrative official charged
with the enforcement of such local law, from whom the appeal is taken,
certifies to the Board of Appeals, after the notice of appeal shall
have been filed with the administrative official, that by reason of
facts stated in the certificate a stay would, in his or her opinion,
cause imminent peril to life or property, in which case proceedings
shall not be stayed otherwise than by a restraining order which may
be granted by the Board of Appeals or by a court of record on application,
on notice to the administrative official from whom the appeal is taken
and on due cause shown.
J.
Hearing on appeal. The Board of Appeals shall fix a reasonable time
for the hearing of the appeal or other matter referred to it and give
public notice thereof by the publication in a paper of general circulation
in the Village of a notice of such hearing, at least five days prior
to the date thereof.
K.
Time of decision. The Board of Appeals shall decide upon the appeal
within 62 days after the conduct of said hearing. The time within
which the Board of Appeals must render its decision may be extended
by mutual consent of the applicant and the Board.
L.
Notice. At least five days before such hearing, the Board of Appeals
shall mail notices thereof to the parties, to the regional state park
commission having jurisdiction over any state park or parkway within
500 feet of the property affected by such appeal and to the county
or regional planning agency as required by § 239-m of the
General Municipal Law, which notice shall be accompanied by a full
statement of the matter under consideration, as defined in Subdivision
1 of § 239-m of the General Municipal Law.
M.
Compliance with State Environmental Quality Review Act. The Board
of Appeals shall comply with the provisions of the State Environmental
Quality Review Act under Article 8 of the Environmental Conservation
Law and its implementing regulations, as codified in Title 6, Part
617, of the New York Codes, Rules and Regulations.
A.
Interpretations; requirements; decisions; determinations. The Board
of Appeals may reverse or affirm, wholly or partly, or may modify
the order, requirement, decision, interpretation or determination
appealed from and shall make such order, requirement, decision, interpretation
or determination as in its opinion ought to have been made in the
matter by the administrative official charged with the enforcement
of such local law and to that end shall have all the powers of the
administrative official from whose order, requirement, decision or
determination the appeal is taken.
B.
Use variances.
(1)
The Board of Appeals, on appeal from the decision or determination
of the administrative officer charged with the enforcement of such
article, shall have the power to grant use variances, authorizing
a use of the land which otherwise would not be allowed or would be
prohibited by the terms of the article.
(2)
No such use variance shall be granted by a 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:
(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.
(d)
The alleged hardship has not been self-created.
(3)
The Board of Appeals, 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.
C.
Area variances.
(1)
The Zoning Board of Appeals shall have the power, upon an appeal
from a decision or determination of an administrative official charged
with the enforcement of such article, to grant area variances from
the area or dimensional requirements of such article.
(2)
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:
(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; 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 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.
D.
Imposition of conditions. The Board of Appeals 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, 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 the neighborhood or community.
E.
The Board of Appeals shall have the power to grant special permits
in accordance with the applicable provision of the Code of the Village
of Newark.
In every case where a special permit by the Board of Appeals
is required by the provisions of this article before a use may be
permitted in any particular district, such special permit shall be
given only after:
The special uses for which conformance to additional standards
is required shall be deemed to be permitted uses in their respective
districts, subject to the satisfaction of the requirements and standards
set forth herein, in addition to all other requirements of this article.
All such uses are hereby declared to possess characteristics of such
unique and special forms that each specific use shall be considered
as an individual case.
An application for a special permit shall be accompanied by
preliminary plans and other descriptive matter sufficient to clearly
portray the intentions of the applicant, and such plans and other
descriptive matter shall become part of the record. Such plans shall
show the location of all buildings, parking areas, traffic access
and circulation drives, open spaces, landscaping and any other pertinent
information that may be necessary to determine if the proposed special
use meets the requirements of this article.
A special permit shall be deemed to authorize only one particular
special use and shall expire if the special use shall cease for more
than three months for any reason.
No special permit shall be issued for a special use for a property
where there is an existing violation of the Code of the Village of
Newark.
There are 15 criteria that shall be used to review special permit
applications, to the extent they are pertinent to each request. Additional
factors may also be considered and additional standards imposed. In
deliberating a proposal, the Planning Board and Zoning Board of Appeals
may determine that some factors outweigh others.
A.
The character of the neighborhood.
B.
The zoning and uses of nearby properties, and the extent to which
the proposed use would be in harmony with such zoning and uses.
C.
The suitability of the property for the uses to which it has been
restricted under the current applicable zoning district regulations.
D.
The length of time the property has remained vacant as zoned.
E.
The extent to which approval of the application would detrimentally
affect nearby properties.
F.
The extent to which the proposed use would substantially harm the
value of nearby properties.
G.
The extent to which the proposed use would adversely affect the capacity
or safety of that portion of the road network influenced by the use,
or present parking problems in the vicinity of the property.
H.
The extent to which utilities and services, including but not limited
to sewers, water service, police and fire protection, and parks and
recreation facilities, are available and adequate to serve the proposed
use.
I.
The extent to which the proposed use would create excessive stormwater
runoff, air pollution, water pollution, noise pollution or other environmental
harm.
J.
The extent to which there is a need for the use in the community.
K.
The economic impact of the proposed use on the community.
L.
The ability of the applicant to satisfy any requirements applicable
to the specific use imposed pursuant to the zoning district regulation.
M.
The gain, if any, to the public health, safety and welfare due to
denial of the application as compared to the hardship imposed upon
the landowner, if any, as a result of the denial of the application.
N.
The conformance of the proposed use to the Comprehensive Plan and
other adopted planning policies.
O.
The recommendation of professional staff.
