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
Town Law. The Board of Appeals shall have all the powers and perform
all the duties prescribed by statute and by this chapter.
A.
Appeals for interpretation. The Board of Appeals shall
hear and decide appeals where it is alleged that there is an error
or misinterpretation in an order, requirement, decision or determination
by any administrative official of the Town of West Seneca 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.
B.
Appeals for variance. On an appeal from an order,
requirement, decision or determination of any administrative official
charged with the enforcement of this chapter, and where there are
practical difficulties or unnecessary hardships in the way of carrying
out the strict letter of this chapter, the Board of Appeals shall
have the power, in passing upon appeals, to vary or modify the application
of any of the regulations or provisions of this chapter relating to
the use, construction or alteration of buildings or structures, or
the use of land, so that the spirit of this chapter shall be observed,
public safety and welfare secured and substantial justice done. Toward
this end, the Board of Appeals may prescribe such conditions or restrictions
as it may deem necessary.
[Amended 8-17-1987]
(1)
Use variance. Before the Board of Appeals may grant
a use variance, unnecessary hardship must be established based upon
all the following criteria:
(a)
Based on actual monetary values, the land in
question cannot yield a reasonable return if used only for a purpose
allowed in that zone.
(b)
The plight of the owner is due to unique circumstances
and not to the general conditions in the neighborhood.
(c)
The use to be authorized by the variance will
not alter the essential character of the neighborhood and is compatible
with the area.
(2)
Area variance. Area variances may be considered where
setback, frontage, lot size, density or yard requirements of this
chapter cannot be reasonably met. The Board of Appeals may grant an
area variance on the ground of practical difficulty, such practical
difficulty to be determined by consideration of the following:
(a)
How substantial the variation is in relation
to the requirement.
(b)
The effect, if the variance is allowed, of the
increased population density thus produced on available governmental
facilities (fire, water, garbage and the like).
(c)
Whether a substantial change will be produced
in the character of the neighborhood or a substantial detriment to
adjoining properties created.
(d)
Whether the difficulty can be obviated by some
method, feasible for the applicant to pursue, other than a variance.
(e)
Whether, in view of the manner in which the
difficulty arose and considering all of the above factors, the interests
of justice will be served by allowing the variance.
(3)
Conditions. No variance under the provisions of Subsection B(1) and (2) above, shall be authorized by the Board unless it finds that such variance:
(a)
Will be in harmony with the general purposes
and intent of this chapter or such regulation, taking into account
the location and size of use, the nature and intensity of the operations
involved in or conducted in connection with it and the size of the
site in respect to streets giving access thereto.
(b)
Will not tend to depreciate the value of adjacent
property, taking into account the possibility of screening or other
protective measures to protect adjacent properties.
(c)
Will not create a hazard to health, safety or
general welfare.
(d)
Will not alter the essential character of or
be detrimental to the neighborhood.
(e)
Is the minimum necessary to afford relief.
A.
General provisions.
(1)
The Board of Appeals shall hear and decide, in accordance
with the provisions of this Article, all applications 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.
(2)
In authorizing any specified modification or in making
any required determination, all required findings shall be made, and
in the case of 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.
(3)
No 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:
(a)
Will be in harmony with the general purposes
and intent of this chapter.
(b)
Will not tend to depreciate the value of adjacent
property.
(c)
Will not create a hazard to health, safety or
the general welfare.
(d)
Will not alter the essential character of the
neighborhood nor be detrimental to the residents thereof.
A.
General provisions. The Board of Appeals, consistent
with law and ordinance, may adopt rules of conduct and procedure.
B.
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 such time as shall be prescribed by the Board of Appeals by
general rules, 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.
C.
Filing applications. An application for any matter
upon which the Board of Appeals is required to pass may be made to
the Town Clerk by the duly authorized agent, the owner or tenant of
the property for which such appeal or application is sought.
D.
Meetings, witnesses and records.
(1)
Meetings of the Board of Appeals shall be held at
the call of the Chairman and at such other times as the Board of Appeals
may determine. All meetings shall be open to the public. The Chairman
of the Board of Appeals or, in his absence, the Acting Chairman, may
administer oaths and compel the attendance of witnesses.
(2)
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 examinations and other official action. Every rule, regulation,
every amendment or repeal thereof and every order, requirement, decision
or determination of the Board of Appeals shall immediately be filed
in the office of the Town Clerk and shall be a public record.
E.
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 Subsection 4, Section 267 of the Town
Law.
F.
Public hearing. The Board of Appeals shall fix a reasonable
time for a hearing of an appeal, applications for modifications of
regulations or other matters referred to it and shall give public
notice thereof in accordance with the provisions of Subsection 5,
Section 267 of the Town Law.
G.
Decisions of the Board of Appeals.
(1)
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, or 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)
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.
H.
Lapse of authorization. Any variance 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
commenced within one year of such date of approval.
I.
Violation of conditions or restrictions. Failure to
comply with any condition or restriction prescribed by the Board of
Appeals in approving any appeal for a variance or application for
a modification of regulations shall constitute a violation. Such violation
may constitute the basis for revocation of a variance or a modification
or for imposing penalties and other applicable remedies.
J.
Rehearing. There shall be no rehearing of an appeal
or application by the Board of Appeals, except in accordance with
Subsection 6, Section 267, Article 16 of the Town Law.
