[Amended 5-19-2008 by Ord. No. 08-25; 12-21-2011 by Ord. No. 11-52; 12-18-2019 by Ord. No. 19-157; 1-11-2023 by Ord. No. 23-02]
A. 
Establishment. As part of the administration of this chapter a Zoning Board of Appeals is hereby established.
B. 
Appointment and term. The Zoning Board of Appeals shall consist of five members appointed by the Mayor, each to serve a term of five years. At the expiration of the members now in office, the appointment of succeeding members to the Board shall be for terms so fixed that one member's term shall expire at the end of the calendar year in which such members were initially appointed. The remaining members' terms shall expire at the end of each year thereafter. At the expiration of each succeeding member's appointment, the replacement member shall be appointed for a term of five years. Vacancies occurring in said Board shall be filled in a like manner, but only for the unexpired period of such term.
C. 
Alternate members. The Mayor shall have the power to appoint one alternate Zoning Board of Appeals member in the event a member is unable to participate because of a conflict of interest. The alternate member shall possess all the powers and responsibilities of such member of the Board. Such designation shall be entered into the minutes of the initial Zoning Board of Appeals meeting at which the substitution is made. The alternate Board member will serve a term of five years.
D. 
Removal of members. The Mayor shall have the power to remove, after a public hearing, any member of the Zoning Board of Appeals for cause. Any Zoning Board of Appeals member may be removed for noncompliance with any minimum requirements relating to meeting attendance and training as established by City Council by local law or ordinance.
E. 
Chairperson. The Zoning Board of Appeals shall select a Chairperson and Vice Chairperson from among its own members. In the absence of such Chairperson, the Vice Chairperson will serve as the Acting Chairperson. All meetings of the Zoning Board of Appeals shall be held at the call of the Chairperson and at other times as such Board may determine. Such Chairperson, or in his or her absence the Acting Chairperson, may administer oaths and compel the attendance of witnesses.
F. 
Meetings. Regular meetings shall be held at least once each month but may be cancelled if there is no action pending. Special meetings may be held at such other times as the Chairperson may determine. All meetings shall be open to the public.
G. 
Voting requirements.
(1) 
Decision of the Board. The concurring vote of three members of the Board shall be necessary to reverse any order, requirement, decision or determination of the Zoning Officer acting as the official charged with the enforcement of this chapter, or to decide in favor of the applicant any matter upon which it is required to pass, or to approve any variance in the provisions of this chapter.
(2) 
Default denial of appeal. If an affirmative vote of a majority of all members of the Board is not attained on a motion or resolution to grant a variance or reverse any order, requirement, decision, or determination of the enforcement official within the time allowed, the appeal is denied. The Board may amend the failed motion or resolution and vote on the amended motion or resolution within the time allowed without being subject to the rehearing process.
H. 
Minutes. Minutes of all proceedings shall be recorded and shall show the action of the Board and the vote of each member on every motion or, if absent or failing to vote, indicating such fact. All proceedings shall be filed in the Planning Department and shall be a public record.
I. 
Filing requirements. Every rule, regulation, amendment, or repeal thereof, and every order, requirement, decision, or determination of the Zoning Board of Appeals, shall be filed in the office of the City Clerk within five business days and shall be a public record.
J. 
Board rules. The Zoning Board of Appeals shall adopt any rules and regulations as may be necessary or proper to the performance of its duties, and may amend or repeal such rules and regulations as necessary.
K. 
Compatibility of offices. The municipal officials or employees on such Board shall not, by reason of membership thereon, forfeit their right to exercise the powers, perform the duties, or receive the compensation of the municipal office or position held by them during such membership. No municipal officer or employee shall be appointed to the Zoning Board of Appeals in the event such officer or employee cannot carry out the duties of his or her position without a conflict in the performance of his or her duties as a member of the Zoning Board of Appeals. In accordance with General City Law § 81(2), no person who is a member of the legislative body of the City of Binghamton shall be eligible for membership on said Zoning Board of Appeals.
L. 
Each member of the Zoning Board of Appeals shall be paid an annual stipend of $575. Payments shall be made in four installments, on or about April 1, July 1, October 1, and January 1 (for the previous year). Any member joining the Zoning Board of Appeals other than prior to the first meeting of the year will be paid a proportionate amount of the stipend. Any member who is removed pursuant to the Code of the City of Binghamton Article I, Vacancies due to nonattendance; § 16-1, Application; § 16-2, Determination of vacancy; or § 410-91D, Removal of members, shall not be paid for any missed meetings leading to dismissal.
[Amended 12-18-2019 by Ord. No. 19-157]
A. 
General. The Zoning Board of Appeals shall have all the powers and duties prescribed by the General City Law of the State of New York and this chapter. None of the provisions set forth in this § 410-92, or elsewhere in this chapter, shall limit any of the powers of the Zoning Board of Appeals conferred by General City Law.
B. 
Interpretation. On appeal from any person, firm or corporation, or from any official or agency of the City of Binghamton, the Zoning Board of Appeals shall have authority to decide any question involving the interpretation of any provision of this chapter made by the Zoning Officer acting as the official responsible for its enforcement. (See § 410-93.)
C. 
Use variance.
(1) 
Where there is unnecessary hardship created by carrying out the strict letter of this chapter as to permitted use of a building or land, the Zoning Board of Appeals may vary the use regulations so that the spirit of the chapter shall be observed. No use variance shall be granted by the Zoning Board of Appeals without a showing by the applicant that applicable zoning regulations and restrictions have caused necessary hardship. In order to prove such unnecessary hardship, the applicant shall demonstrate to the Zoning Board of Appeals that for each and every permitted use under the zoning regulations for the particular district where the property is located:
(a) 
Reasonable return: the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence.
(b) 
Unique hardship: the alleged hardship for the property is unique and does not apply to a substantial portion of the district or neighborhood.
(c) 
Essential character of the neighborhood: granting the variance will not alter the essential character of the neighborhood.
(d) 
Not self-created hardship: the alleged hardship has not been self-created.
(2) 
The Zoning Board of Appeals, in the granting of the use variance, 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.
(3) 
The granting of a use variance does not relieve the applicant of the responsibility for meeting the bulk requirements for permitted uses in the applicable district.
D. 
Area variance.
(1) 
Where there are practical difficulties or special conditions which make regulations governing lot size, yard size, building height, solar access or any other regulations pertaining to bulk and not specifically related to use of land or buildings unreasonable or impossible to comply with, the Zoning Board of Appeals may vary or modify these regulations as long as the spirit of the regulation to be altered is observed. 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) 
Undesirable change in neighborhood character: 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) 
Alternative cure sought: 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) 
Substantiality: whether the area variance requested is substantial;
(d) 
Adverse effect or impact: whether the requested variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district;
(e) 
Not self-created: whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the Zoning Board of Appeals, but shall not necessarily preclude the granting of the area variance.
(2) 
The Zoning Board of Appeals, in granting an area variance, 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.
E. 
Nonconforming use. Upon application, the Zoning Board of Appeals may authorize the alteration, enlargement, reconstruction, moving, replacement of, or additions to, a nonconforming building or structure, subject to the provisions specified in § 410-75 of this chapter.
F. 
Conditions and safeguards. In all cases where the Zoning Board of Appeals acts pursuant to powers established by law or this chapter, the Board may 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 this chapter and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.
[Amended 12-18-2019 by Ord. No. 19-157]
A. 
Application for variance, notice of appeal. Any request for a variance or for relief from an order, requirement, decision or determination of the Supervisor of the Zoning Officer acting as the official responsible for enforcement of this chapter, or any request for a Zoning Board of Appeals interpretation or approval as may be required by the provisions of this chapter, shall be submitted by filing an application for a variance or a notice of appeals with the Planning Department. Such application or notice shall be in writing on forms prescribed by the Board.
B. 
Content of application for a variance or notice of appeal. Each application for a variance or notice of appeal shall fully set forth the circumstances of the case, shall refer to specific provisions of this chapter involved, and shall set forth the interpretation claimed, or the details of the use or area variance requested and the grounds on which it is believed that the interpretation or variance should be approved.
C. 
Graphic description. When appropriate, the written application for a variance or notice of appeal shall also contain graphic material (maps, surveys, photographs, etc.) which clearly illustrates the nature of the application or appeal. The Zoning Board of Appeals may refuse to consider any application for a variance or notice of appeal which does not contain adequate graphic documentation to fully explain the relief requested.
D. 
Record. The application for a variance or notice of appeal, and all the papers constituting a record of the application or action being appealed, shall forthwith be transmitted to the Zoning Board of Appeals by the Planning Department. (See also § 410-94C.)
E. 
Stay. An application for a variance or notice of appeal stops all further proceedings on the matter in question unless the Supervisor of the Office of Building and Construction certifies to the Board that, for reason set forth in the certificate, a stay would cause imminent peril to life and property. In such case, proceedings shall be stopped only by a restraining order which may be granted by the Zoning Board of Appeals or by the Supreme Court on notice to the official or agency from whom the appeal is taken and on due cause shown.
[Amended 7-17-2013 by Ord. No. 13-49; 10-4-2017 by Ord. No. 17-59; 12-18-2019 by Ord. No. 19-157]
A. 
Public hearing. The Zoning Board of Appeals shall hold a public hearing on any application or appeal within a reasonable time after such application or appeal is received by the Board. At such public hearing any party may appear in person or by agent or attorney.
B. 
Public notice by Planning Department. Upon receipt of payment of a notification fee as set by the City Council, from an applicant, the Planning Department shall provide public notice to the official newspaper of the City of Binghamton (the Press and Sun Bulletin) and to complete required notice mailings (see Exhibit J).
(1) 
Newspaper. Notice of any public hearing shall be published in the official newspaper of the City of Binghamton (the Press and Sun Bulletin) at least seven calendar days prior to the date of the hearing, excluding the hearing date.
(2) 
Mailings. Additionally, at least seven calendar days prior to the public hearing, notice thereof shall be sent by U.S. mail to the owners of record and all other properties within a distance of 200 feet from the boundary of the subject property and to the regional state park commission when the subject property is within 500 feet of any state park or parkway.
(3) 
Public notice sign posted by applicant. At least seven calendar days prior to the public hearing, excluding the hearing date, a public notice sign shall be posted on the property by the applicant. The sign(s) shall contain information specific to the applicant's case, such as the time, date, and location of the hearing, the types of variances required, and the proposed action. One sign shall be required for every 300 linear feet of property frontage. The sign(s) must be placed in either the front yard or a visible window when no front yard exists. If the property is a corner lot, one sign must be placed in each front yard.
(4) 
Verification of notice. Verification of notice as required by this § 410-39D shall be prepared by the Planning Department at least five calendar days prior to the public hearing. Such verification shall consist of a statement from the Press and Sun-Bulletin and a signed affidavit of notice prepared by the Planning Department.
(5) 
Cost. The preparation and cost of publication, mailing of required notice of public hearing, and sign posting shall be borne by the applicant.
C. 
Referrals.
(1) 
To the Planning Department. At least 20 business days prior to any public hearing on an application for any use or area variance, or a modification of a nonconforming use, such appeal shall be filed with the Planning Department for review as to conformance with the City's planning objectives and for an environmental assessment of Type I and unlisted actions. The Planning Department shall review the application for conformance with the City's planning objectives and for an environmental assessment on the proposed action prior to the public hearing.
(2) 
To the Broome County Department of Planning.
(a) 
Before taking final action on all applications for an area or use variance or expansion of a nonconforming use, such applications shall be referred to the Broome County Planning Department for report and recommendation in accordance with § 239-l, -m, -n, and –nn.
(b) 
If the County Department of Planning fails to make such report within 30 days after receipt of any matter referred by the Planning Department, action may be taken without such report in accordance with § 239-m(4)(b) of the General Municipal Law. If the County Department of Planning disapproves of the proposal, or recommends modification thereof, the Zoning Board of Appeals may act contrary to such disapproval or recommendation only by a vote of a majority plus one of all the members thereof. The Zoning Board of Appeals shall file a report of its action with the County Department of Planning within seven days after such action is taken.
D. 
Adjournment. The hearing for any application or appeal to the Zoning Board of Appeals may be adjourned for a period not to exceed 45 days for the purpose of obtaining additional information or clarification, or to provide further opportunity for the applicant and any opposing view to present more detailed evidence, or to cause such further notice to be served upon other property owners as may be deemed necessary or desirable by the Board.
E. 
Board decision. The Zoning Board of Appeals shall decide on applications or appeals, or any other matter upon which it is required to act, within 62 days after the conclusion of the public hearing. The time within which the Zoning Board of Appeals must render its decision may be extended by mutual consent of the applicant and the Board.
Any decision, determination or order previously made by the Zoning Board of Appeals may be reconsidered as follows:
A. 
Motion. A motion for such reconsideration may be made by any member of the Board and shall be adopted unanimously by all members present. Such motion to reconsider shall not be made less than 90 days after the initial Board action on the matter to be reconsidered.
B. 
Notice. Notice of such reconsideration shall be given in the same manner as the original hearing. (See § 410-94B.)
C. 
Action on notice to reconsider. Upon such reconsideration, the Zoning Board of Appeals may reverse, modify, or annul its original order, decision, or determination upon the unanimous vote of all members then present, provided the Zoning Board of Appeals 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.
Unless the Zoning Board of Appeals determines, by the unanimous vote of members present, that substantial new evidence has become available, a second application on any previously decided case will not be heard.
If the advisory report from the City Planning Department indicates that approval of an application submitted to the Zoning Board of Appeals could have a significant environmental impact, no such approval shall be given until an environmental assessment and declaration have been made by the lead agency.
Any building and zoning permit issued in conformance with an action of the Zoning Board of Appeals shall be subject to the provisions of § 410-84H of this chapter. Should the appellant or applicant fail to comply with these provisions, it shall be conclusively presumed that the appellant or applicant has waived, withdrawn or abandoned the appeal or application, and such permission or variance granted shall be deemed automatically rescinded and invalidated by the Zoning Board of Appeals unless an extension of time is granted by such Board.