Article XLV Zoning Board of Appeals

Appeals of interpretation.

The Zoning Board of Appeals shall hear and decide appeals where it is alleged that there is an error or misinterpretation in any order, requirement, decision, interpretation, or determination by an administrative official of the Town of Hamburg charged with the enforcement of the provisions of this chapter.

The Zoning Board of Appeals may reverse, modify, or affirm, in whole or in part, any such appealed order, requirement, decision, interpretation, or determination appealed from and may make such order, requirement, decision, interpretation, 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.

Appeals for use variance.

The Zoning Board of Appeals, on an appeal from an order, requirement, decision, interpretation, or determination of any administrative official charged with the enforcement of this chapter, shall have the power to grant use variances as defined herein.

No such use variance shall be granted 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:

The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;

That the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood;

That the requested use variance, if granted, will not alter the essential character of the neighborhood; and

[4]

That the alleged hardship has not been self-created.

(c)

The Zoning Board of Appeals, in granting of use variances, 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.

Appeals for area variance.

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 Zoning Board of Appeals shall also consider

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;

Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;

Whether the requested area variance is substantial;

[4]

Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and

[5]

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.

(c)

The Zoning Board of Appeals, in 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.

(4)

The following types of cases shall be construed as eligible for consideration within the meaning of this chapter:

Unusual size or shape of lot

Where, by reason of the exceptional narrowness, shallowness, or shape of a specific piece of property at the time of the effective date of this chapter or by reason of exceptional topographic conditions or other exceptional physical difficulties in the development of such piece of property, the literal enforcement of the requirements of this chapter pertaining to yards or other space relationships would result in peculiar unnecessary hardship upon the owner of such property.

Adjacent nonconforming uses.

Where, adjacent to a lot on both sides in the case of an interior lot, or on both the side and rear of the lot or on all other corners of an intersection in the case of a corner lot, there are buildings or uses which do not conform to regulations prescribed in this chapter for the district in which said lot is located.

In considering such appeal, the Zoning Board of Appeals shall give due regard to the nature and conditions of all adjacent uses and structures, and, in granting any such appeal, the Zoning Board of Appeals may impose special requirements and conditions for the protection of conforming uses and the ultimate removal of nonconforming uses and structures.

In any case, the variance as to the use or uses permitted on any lot, whether principal or accessory, shall not allow a use or combination of uses more intensive or less restricted than any use which is legally existing on premises immediately adjacent on either side of said lot, or of premises on any corner of the intersection in the case of a corner lot.

(c)

Nonconforming building.

Where the principal building on any premises was originally lawfully erected and intended for a principal use and such building would now be a nonconforming use in the district in which located and the right to continue or reestablish such nonconforming use in such building is denied by the provisions of Article XLII of this Zoning Code, and where the literal enforcement of such provisions would result in unnecessary hardship upon the owner of such property. In considering such appeal, the Zoning Board of Appeals shall give due regard to the age and condition of such building and its adaptability for or convertibility to a conforming use.

In approving any such appeal, the Zoning Board of Appeals shall specify the time limit during which such grant of a variance shall be effective, which time limit shall in no case exceed the estimated useful life of such building.

In case the building has been condemned by the Building Inspector and ordered to be demolished, the Zoning Board of Appeals shall not grant any such variance.

(5)

Any other case involving practical difficulties or unnecessary hardship in the way of carrying out any provision of this chapter pursuant to and in accord with the intent and purpose of Subdivision 5 of § 267 of Article 16 of the Town Law.

In granting of both use variances and area variances, the Zoning Board of Appeals may vary or modify the provisions of this chapter so that the spirit of the law shall be observed, public safety secured, and substantial justice done.

Toward this end, the Zoning Board of Appeals 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. Such conditions shall be consistent with the spirit and intent of the Zoning Code or local law and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.

Special permits.

[Amended 11-7-2016 by L.L. No. 7-2016]

Modification of regulations.

[Amended 6-22-2015 by L.L. No. 6-2015]

Exception from exterior side yard requirements. The Zoning Board of Appeals may modify the exterior side yard requirements for principal buildings on deep corner lots, provided that the following findings are made:

That the rear yard is at least 50 feet in depth; and,

That such modification will not adversely affect the adjoining property.

Exception from fence height limitations

The Zoning Board of Appeals may permit a fence up to eight feet in height in any rear yard, not a front yard equivalent, or in any side yard, not a required side yard, provided that such fence is at least 10 feet from any property line and that the following findings are made:

That such fence shall not unduly shut out light or air to adjoining properties; and

That such a fence shall not create a fire hazard by reason of its construction or location.

§ 280-317 Procedures.

[Amended 8-9-2010 by L.L. No. 6-2010; 6-22-2015 by L.L. No. 6-2015; 8-3-2020 by L.L. No. 3-2020; 5-8-2023 by L.L. No. 6-2023; 7-7-2025 by L.L. No. 3-2025]

General provisions.

The Zoning Board of Appeals, consistent with this chapter, may adopt rules of conduct and procedure.

Filing appeals.

An appeal to the Zoning Board of Appeals from any order, requirement, decision, interpretation, or determination of any administrative official charged with the enforcement of this chapter may be taken by any person aggrieved or by any officer, department, division, board, or bureau of the Town of Hamburg.

Such appeal shall be filed in the office of such administrative official charged with the enforcement of this chapter within five business days from the day it is rendered, and shall be a public record. Alternately, the Town Board may, by resolution, require that such filings instead be made in the Town Clerk's office.

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 this chapter by filing with such official and with the Zoning Board of Appeals a notice of appeal, specifying the grounds thereof and the relief sought. The official from whom the appeal is taken shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken.

Filing applications.

An application for any matter upon which the Zoning Board of Appeals is required to pass may be made to the Building Inspector by the owner, the tenant of the property, or a duly authorized agent for which such appeal or application is sought.

Stay of proceedings.

Any appeal to the Zoning Board of Appeals shall stay all proceedings in furtherance of the action appealed from, except as otherwise provided in Subdivision 4 of § 267 of the Town Law.

Hearing on appeal.

The Zoning Board of Appeals shall fix a reasonable time for the hearing of the appeal or other matter referred to it and give public notice public notice thereof in accordance with the provisions of Subdivision 5 of § 267 of the Town Law at least five days prior to the date thereof.

The cost of sending or publishing any notices relating to such appeal, or a reasonable fee relating thereto, shall be borne by the appealing party and shall be paid to the Board prior to the hearing of such appeal. Upon the hearing, any party may appear in person, or by agent or attorney.

The Zoning Board of Appeals shall decide upon the appeal within 62 days after the conduct of said 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.

Meetings, witnesses, and records.

Meetings of the Zoning Board of Appeals shall be held at the call of the Chairman and at such other times as the Board may determine. All meetings shall be open to the public.

The Chairman of the Zoning Board of Appeals or, in his absence, the Acting Chairman, may administer oaths and compel the attendance of witnesses.

The Zoning 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 and regulation, every amendment or repeal thereof, and every order, requirement, decision, interpretation, or determination of the Zoning Board of Appeals shall immediately be filed in the office of the Town Clerk and shall be a public record.

Decisions of the Zoning Board of Appeals.

The concurring vote of a majority of the members of the Zoning Board of Appeals, as fully constituted regardless of vacancies or absences, shall be necessary to reverse any order, requirement, decision, interpretation, or determination of the Building Inspector 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.

Every decision of the Zoning 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 Zoning Board of Appeals in each specific case, or, in the case of denial, the decision shall include the findings which are not satisfied.

If an affirmative vote of a majority of all members of the Zoning Board of Appeals is not attained on a motion or resolution to grant a variance or reverse any order, requirement, decision, interpretation, or determination of the administrative official charged with enforcement of this chapter within the time allowed by § 280-311E(3), the appeal is denied. The Board may amend that failed motion or resolution and vote on the amended motion or resolution within the time allowed without being subject to the rehearing process.

(4)

The decision of the Zoning Board of Appeals on the appeal shall be filed in the office of the Town Clerk within five business days after the day such decision is rendered, and a copy thereof mailed to the applicant.

Compliance with SEQR. The Zoning Board of Appeals shall comply with the provisions of the State Environmental Quality Review Act (SEQR) under Article 8 of the Environmental Conservation Law and its implementing regulations as codified in 6 NYCRR 617. The ZBA is subject to the New York SEQR law and for those actions not meeting the Type II designation (not subject to SEQR) completed prior to the ZBA taking an action. Typically, the lead agency shall be determined and designated by mutual agreement of all involved agencies within 30 calendar days of the EAF being mailed, as provided by Section 617.6 of Title 6 of NYCRR. In all cases, the lead agency shall be the agency, board or body having final authority to approve or undertake the action. When projects require multiple approvals from the Town's Zoning, Planning and Town Boards, the Town Board of the Town of Hamburg shall be the lead agency. When projects require multiple approvals from the Town's Zoning and Planning Boards, the Planning Board of the Town of Hamburg shall be the lead agency.

Violation of conditions or restrictions.

Failure to comply with any condition or restriction prescribed by the Zoning Board of Appeals in approving any appeal for a variance or application for a special permit or a modification of regulations shall constitute a violation. Such violation may constitute the basis for revocation of a variance, special permit, or modification, or for penalties and other applicable remedies.

Lapse of authorization.

Lapse of authorization. Any variance, special use permit, or modification of regulations authorized by the Zoning Board of Appeals (ZBA) shall be automatically revoked, unless a building permit conforming to all of the conditions and requirements established by the Zoning Board of Appeals is obtained within 12 months of the date of approval by the Zoning Board of Appeals, or a single six-month extension has been granted by the Zoning Board.

Rehearing.