[Amended 9-15-2004 by L.L. No. 3-2004; 6-21-2006 by L.L. No. 2-2006; 7-16-2008 by L.L. No. 4-2008; 11-18-2009 by L.L. No. 3-2009; 9-20-2017 by L.L. No. 1-2017]
A.
There is hereby established a Consolidated Zoning Board of Appeals
of the Town of Naples and the Village of Naples, hereinafter referred
to as the CZBA.
(1)
Creation and membership of the CZBA.
(a)
The CZBA shall consist of seven members and two alternate members.
(b)
Four members of the CZBA shall be appointed by the Town Board
and three members shall be appointed by the Village Board.
(c)
The Town Board shall appoint one alternate member of the CZBA
and the Village Board shall appoint one alternate member of the CZBA.
(d)
The initial terms of the Town Board appointments shall be for
terms of one, three, five, and seven years.
(e)
The initial terms of the Village Board appointments shall be
for two, four, and six years.
(f)
Upon the expiration of the terms of the initial appointees to
the CZBA, successors shall be appointed by the respective Boards for
terms of seven years.
(g)
The terms of the members of the CZBA shall begin on January
1 and shall end on December 31 of each year.
(h)
In the event of a vacancy occurring during a term, the appointment
of a replacement for that vacancy shall be for the remainder of the
term of the vacancy being filled.
(i)
Members appointed by the Town Board shall be replaced by the
Town Board. Members appointed by the Village Board shall be replaced
by the Village Board.
(j)
Any removal of a member of the CZBA shall be done by the Board
appointing that member. Removal shall be done in accordance with the
provisions of Town Law § 271(9) or Village Law § 7-712(9)
as the case may be.
(2)
Alternate members.
(a)
An alternate member may be substituted for one or two members
of the CZBA in the event of a conflict of interest on the part of
such member(s) or in the event of the lack of a quorum of members
of the CPZBA. The substitution of an alternate member to the CZBA
shall be made by the Chairperson of the CPB. The provisions of Town
Law § 267 (11) or § 7-712 of the Village Law shall
apply to such alternate members, depending upon the authority which
appointed the alternate member.
(b)
In the event of the substitution of an alternate member for
the CZBA, such alternate member shall not participate in any vote
taken by the CZBA unless that alternate member has first duly reviewed
all of the records, documentation and minutes of previous proceedings
pertaining to the matter being voted upon.
(c)
In providing for alternate members to sit in substitution of
members when a quorum is lacking, it is the intent of this section
to supersede the provisions of § 267(11) of the Town Law.
(d)
The Town Board of the Town of Naples shall appoint the Chairperson
of the CZBA.
(3)
Powers and duties.
(a)
The CZBA shall have all of the duties, powers, and responsibilities
as are provided in the Code of the Town of Naples, the Code of the
Village of Naples, Article 16 of the Town Law of the State of New
York, Article 7 of the Village Law of the State of New York, and all
other laws, rules and regulations as may be applicable, all as from
time to time may be amended or superseded.
(b)
The clerk of the CZBA shall file copies of all resolutions and
decisions made by the CZBA with the Clerk of the Town of Naples and
the Clerk of the Village of Naples, within five days of adoption as
required by Village Law § 712-a(2) and 712-a(5).
(c)
Any variance granted by the CZBA shall, where appropriate, be
noted by the Town Clerk and/or Village Clerk on a copy of the Official
Zoning Map which is on file in the respective Clerk's office for such
purpose.
(d)
Any references to the Zoning Board of Appeals in the Code of
the Town of Naples or in the Code of the Village of Naples shall hereafter
be construed to mean the CZBA.
(e)
No area or use variance may be granted by the CZBA unless it
finds sufficient facts constituting grounds for approval in accordance
with the standards set forth in Town Law § 267-b or in the
Village Law § 7-712(b) as the case may be.
(4)
Transitional and implementation matters.
(a)
The Town and Village shall enter into an intermunicipal agreement
pursuant to Articles 5-g and 5-j of the General Municipal law for
further implementation of the CZBA and CPB.
(5)
Pending applications.
(a)
All applications, referrals, and all other matters pending before
the Town of Naples Planning Board and Zoning Board of Appeals and
the Village Planning Board and Zoning Board of Appeals as of the effective
date of this section shall be transferred to the CPB or the CZBA as
the case may be.
(b)
The members of the respective CPB and CZBA, voting on a transferred
application, shall first fully review all of the records, documentation,
and minutes of previous proceedings pertaining to the transferred
application.
(c)
Any applicant whose application has been transferred may request
a recommencement of the review process for that transferred application,
which request shall be granted by the CPB or CZBA as the case may
be.
(d)
No member of the Naples Town Board or Naples Village Board shall
be eligible to be a member of the CPB or the CZBA.
(6)
Superseding provisions.
(a)
This section shall supersede the provisions of §§ 267
and 271 of the Town Law and §§ 7-712 and 7-718 of the
Village Law of the State of New York to the extent that its provisions
are inconsistent with the cited sections of the Town and Village Laws,
and to the extent permitted by the Constitution of the State of New
York and by § 10 of the New York State Municipal Home Rule
Law, as well as any other statute, ordinance, or local law determined
to be in conflict with the provisions of this section.
B.
(Reserved)
C.
Schedule a public hearing. After receiving an appeal
from an aggrieved person, the ZBA shall schedule a public hearing
on the appeal application or any other matter referred to the Board
within 30 days of a completed application.
D.
Public hearing; posting of sign.
(1)
Prior
to the hearing, the owner/applicant shall be required to obtain from
the Code Enforcement Officer a sign which states in substance that
the subject property is under review by either the Planning Board
or the Zoning Board of Appeals, as the case may be. The sign must
be posted upon the subject premises within five days of the date upon
which the applicant's application is deemed to be complete. The sign
must be posted in the front yard of the subject premises in plain
view, and must be maintained in an upright position at all times so
that it is readable by the public throughout the duration of the application
process. Placement of the sign shall be done in accordance with the
requirements of this Code. The failure of the owner/applicant to observe
these posting requirements shall result in the denial of the application.
The sign shall be removed by the owner/applicant within five days
of the filing of the final decision with the Village Clerk.
(2)
In
addition, a legal notice of the public hearing shall be published
in a newspaper of local circulation at least five days prior to the
date of the hearing.
E.
Quorum; voting. The presence of three members shall
constitute a quorum. The ZBA shall act by resolution. The concurring
vote of a majority of the members of the ZBA shall be necessary to
reverse any order, requirement or decision or determination of the
Code Enforcement Officer or the Planning Board.
F.
An environmental assessment form (EAF) pursuant to
the State Environmental Quality Review Act as codified in the Environmental
Conservation Law of the State of New York[1] shall be required. The applicant shall submit said EAF
with Section 1 filled out, signed and dated, accompanied by any supporting
documentation or materials as may be required.
[1]
Editor's Note: See Art. 8 of the Environmental
Conservation Law.
A.
Interpretation of law and boundaries. Upon an appeal
from the decision of the Code Enforcement Officer, the Board shall
decide any question involving the interpretation of any provision
of this chapter. Where uncertainty exists as to the boundaries of
any zoning district, the Board shall, upon written application, determine
the location of such boundaries of such districts as are established
by this chapter and as designated on the Zoning Map of the Village.
A.
Area variances. In making its determination for an
area variance, the ZBA shall take into consideration the benefit to
the applicant if the variance is granted, as weighed against the detriment
to the health and safety of the neighborhood or community by such
grant.
(1)
In making such determination, the ZBA 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 granting 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.
(e)
Whether the alleged difficulty was self-created,
which consideration shall be relevant to the decision of the Board
but shall not necessarily preclude the granting of the area variance.
(2)
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.
(3)
The ZBA shall, in granting of an area variance, 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.
B.
Use variances. In making its determination for a use
variance, the Board shall take into consideration whether or not the
applicant has met the following four tests. To meet one or two is
not sufficient.
(1)
No such 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 unnecessary 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)
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.
(2)
The Zoning 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, safely and welfare of the community.
(3)
The Board shall 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 affect. Such conditions shall be consistent
with the spirit and intent of this chapter.
(4)
When application for a use variance involves property
that is within 500 feet of an adjacent municipality, as defined in
§ 239-nn of the General Municipal Law, the Zoning Board
of Appeals shall give notice to the adjacent municipality by mail
or electronic transmission to the clerk of the adjacent municipality
at least 10 days prior to any hearing. Such adjacent municipality
may appear and be heard.
[Added 7-16-2008 by L.L. No. 4-2008]
C.
This section is taken directly from New York State
Village Law and as such is subject to any updated amendments.
