[Amended 8-5-1987 by Ord. No. 87-23; 4-2-1997 by Ord. No. 97-4]
A.
This chapter shall be administered and enforced by
the Director of Planning and Development or designee and/or his or
her deputies and assistants. The Director of Planning and Development
or designee may call upon the City Prosecutor or other legal assistance
where necessary to enjoin or prosecute violations of this chapter.
No building permit or certificate of occupancy shall be issued by
the Director of Planning and Development or designee except where
all provisions of this chapter shall have been met and complied with
or under specific written order of the Board of Appeals.
[Amended 6-5-2013 by Ord. No. 2013-15[1]]
[1]
Editor's Note: This ordinance provided for an effective date
of 1-1-2014.
B.
Any person ordered to comply with the provisions of this chapter, ordered to cease and desist any use prohibited by this chapter or who is otherwise in disagreement with the judgment of the Director of Planning and Development and/or designee with respect to the administration or enforcement of this chapter may appeal to the Board of Zoning Appeals, provided that a written statement setting forth the reasons for such appeal be filed with the Secretary of the Board. Such appeal shall be commenced pursuant to the provisions set forth in § 325-40 relating to procedures before the Board. In the case of an order to comply or to cease and desist, the Director of Planning and Development and/or designee shall notify such person of this right to appeal and of the time limitations for commencing an appeal.
[Amended 6-5-2013 by Ord. No. 2013-15[2]]
[2]
Editor's Note: This ordinance provided for an effective date
of 1-1-2014.
C.
Approvals. It shall be the duty of the Director of
Planning and Development or designee to review any zoning compliance
approvals requested for any property within the City by any property
owner or his/her agent. When the Director of Planning and Development
or designee has determined that a zoning compliance approval can be
issued for a property, a fee for this approval shall be charged at
a rate of $50 per hour involved in the issuance of the approval, with
a minimum fee of $25, except that the fee for any zoning compliance
approval for owner-occupied one- or two-family dwellings is $25. The
zoning compliance fee does not apply to the issuance of a certificate
of compliance or a certificate of occupancy where other fees are assessed
by the Municipal Code.
[3]
Editor's Note: This ordinance provided for an effective date
of 1-1-2014.
D.
Collection of fees. Upon the issuance of a zoning compliance approval, the property owner shall be billed for services rendered at the rates established pursuant to Subsection C. This fee shall be paid to the City Chamberlain within 30 days of the billing date. If the required fee is not paid within 30 days of the billing date, the City Chamberlain shall enter the same as a lien against the premises as provided in § C-54 of the Charter of the City of Ithaca. The Chamberlain shall add the same to the next assessment roll of general City taxes and shall collect and enforce the assessment in the same manner and by the same proceedings, at the same time and with the same penalties as the general City tax and as a part thereof, except that, in addition to the penalties provided for in the aforementioned provisions, interest shall accrue from the date of billing to the date of actual payment at 12% per annum or $3 per month, whichever is greater.
[Added 11-4-1998 by Ord. No. 98-27;
amended 12-2-2020 by Ord. No. 2020-07]
E.
Appeal of bill. The exclusive administrative remedy for a property owner wishing to appeal the amount of the bill which has been established pursuant to Subsection C is to file a notice of appeal with the Department of Planning, Building and Economic Development within seven days of the mailing date to the property owner of the bill for the service. When a notice of appeal is filed, the Director of Planning and Development or designee, using the regulations of the Board of Zoning Appeals, except that any of the public notice requirements shall not apply, shall schedule the matter at the next possible regular meeting of the Board of Zoning Appeals. The property owner then has the responsibility to perfect the appeal to the Board of Zoning Appeals, by submitting six copies of the appeal and detailing the reasons why the property owner believes the fee is not justified. The property owner bears the burden of establishing that the accounting submitted by the Director of Planning and Development or designee is inaccurate. The Board of Zoning Appeals shall have the authority to approve or reject such appeal in whole or in part.
[4]
Editor's Note: This ordinance provided for an effective date
of 1-1-2014.
[Amended 6-5-2013 by Ord. No. 2013-15[1]]
No building or structure shall be erected, added to or structurally altered until a building permit therefor has been issued by the Director of Planning and Development or designee. All applications for such permits shall be in accordance with the requirements of all applicable regulations. The Director of Planning and Development or designee shall not issue a building permit hereunder until he/she has determined that all of the provisions of this chapter and any other applicable laws or regulations have been complied with. (See also Chapter 146, Building Construction.) No temporary, conditional or verbal building permits shall be issued to allow grading, construction or other work requiring such a permit. Fast-tracking will be permitted upon application to and approval of the Department of Planning, Building and Economic Development.
[1]
Editor's Note: This ordinance provided for an effective date
of 1-1-2014.
[Amended 6-5-2013 by Ord. No. 2013-15[2]]
A.
Required.
No land shall be occupied or used and no building hereafter erected,
altered or extended shall be used or changed in use until a certificate
of occupancy shall have been issued by the Director of Planning and
Development or designee stating that the building or proposed use
thereof complies with the provisions of this and other applicable
chapters of this Code governing the use and occupancy of land and
buildings.
B.
Nonconforming
uses. No nonconforming use shall be renewed, changed or extended without
a certificate of occupancy.
C.
Issuance.
All certificates of occupancy shall be applied for coincident with
the application for a building permit. Said certificate shall be issued
only after the completion of the building or the alteration thereto
shall have been approved as complying with the provisions of this
and other applicable chapters of this Code.
D.
Records.
The Department of Planning, Building and Economic Development shall
maintain a record of all certificates, and copies shall be furnished
upon request to any person having a proprietary or tenancy interest
in the building affected.
E.
Temporary
certificates. Upon request, the Director of Planning and Development
or designee may issue a temporary certificate of occupancy for a building
or structure or part thereof before the entire work covered by the
building permit shall have been completed, provided that such portion
or portions as have been completed may be occupied safely without
endangering life or the public welfare.
[Amended 3-18-1994 by L.L. No. 2-1994]
A.
Creation, appointment and organization.
(1)
Appointment of members. The Mayor, with the consent
of the Common Council, shall appoint a Board of Appeals consisting
of five members. The Board of Appeals, at the first regular meeting
each year, shall elect one of its own members as Chairperson. In the
absence of the Chairperson at any meeting, the Board of Appeals may
designate a member to serve as Acting Chairperson. The Director of
Zoning Administration or the designee of the Director of Planning
and Development shall be the Secretary of the Board of Appeals. In
making such appointments, the Mayor may require Board of Appeals members
to complete training and continuing education courses.
[1]
Editor's Note: The City determined during
1996 that several local laws enacted by Common Council during the
last 30 years were subject to the mandatory referendum requirement
of the New York Municipal Home Rule Law but were not in fact submitted
to or approved by referenda. Local Law No. 2-1997 corrects the text
of the Ithaca City Code by deleting language inserted pursuant to
unapproved and therefore invalid local laws and reinserting the preexisting
language which is still legally effective.
[2]
Editor's Note: This local law was passed over
the Mayor's veto on 10-2-1996, was passed at referendum on 11-4-1997,
and repassed over the Mayor's reveto 11-5-1997. Section 1 of this
local law provided as follows: "Section 1. Legislative intent. Pursuant
to the findings of the mandatory referendum review, this local law
is intended to give effect to the change made by Local Law 2-1994,
which intended to amend § 325-40(A)(1) of the Ithaca City
Code but was not submitted to a referendum, through the adoption of
this local law and its submission to a referendum.
[3]
Editor's Note: This local law passed at referendum on 11-5-2013.
(2)
Legislative body members ineligible. No person who
is a member of the Common Council shall be eligible for membership
on such Board of Appeals.
(3)
Terms of members first appointed. In the creation
of a new Board of Appeals or the re-establishment of terms of the
existing Board of Appeals, the appointment of members to the Board
of Appeals shall be for terms so fixed so that one member's term shall
expire at the end of 1994; that two members' terms shall expire at
the end of 1995; and that two members' terms shall expire at the end
of 1996. At the expiration of each original member's appointment,
the replacement member shall be appointed for a term of three years.
(4)
Vacancy in office. If a vacancy shall occur otherwise
than by expiration of term, the Mayor, with the consent of Common
Council, shall appoint the new member for the unexpired term.
(5)
Removal of members. The Mayor shall have the power
to remove, after public hearing, any member of the Board of Appeals
for cause. Any Board of Appeals member may be removed for noncompliance
with any minimum requirements relating to meeting attendance and training
established by the Common Council.
(6)
Compatibility of offices. Municipal officials or employees
on the Board of Appeals 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 held by them during
such membership. No municipal officer or employee shall be appointed
to the Board of Appeals in the event such officer or employee cannot
carry out his or her position without a conflict in the performance
of his or her duties as a member of the Board of Appeals.
(7)
Chairperson's duties. All meetings of the Board of
Appeals shall be held at the call of the Chairperson and at such other
times as the Board of Appeals may determine. Such Chairperson, or,
in his or her absence, the Acting Chairperson, may administer oaths
and compel the attendance of witnesses.
B.
Board of Appeals procedure.
(1)
Procedure pursuant to state law. Except as provided
herein to the contrary, the procedure of the Board of Appeals shall
be governed by § 81-a of the General City Law of the State
of New York, as follows:
(a)
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.
(b)
Filing requirements. Every rule, every 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 City Clerk within 30 days and shall be a public record.
(c)
Assistance to the Board of Appeals. Such Board
of Appeals shall have the authority to call upon any department, agency
or employee of the City for such assistance as shall be deemed necessary
and as shall be authorized by the legislative body. Such department,
agency or employee may be reimbursed for any expenses incurred as
a result of such assistance.
(d)
Hearing appeals. Except as otherwise provided
by local law or ordinance, 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 the administrative official charged with
the enforcement of any ordinance or local law adopted pursuant to
this article. 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 or area variance. Such appeal may be taken
by any person aggrieved, or by an officer, department, board or bureau
of the City.
(e)
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 ordinance or 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.
(f)
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 ordinance or 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 the official's 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.
(g)
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 of such hearing by publication
in a paper of general circulation in the City 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 of
Appeals prior to the hearing of such appeal. Upon the hearing, any
party may appear in person, or by agent or attorney.
(h)
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 of
Appeals.
(i)
Filing of decision and notice. The decision
of the Board of Appeals on the appeal shall be filed in the office
of the City Clerk or the zoning office, if such office has been established,
within 30 days after the day such decision is rendered, and a copy
thereof mailed to the applicant.
(j)
Notice to park commission or planning agency.
At least five days before such hearing, the Board of Appeals shall
mail notice 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, metropolitan
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.
(k)
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.
(l)
Rehearing. A motion for the Board of Appeals
to hold a rehearing to review any order, decision or determination
of the Board of Appeals not previously reviewed may be made by any
member of the Board of Appeals. A unanimous vote of all members of
the Board of Appeals then present is required for such rehearing to
occur. Such rehearing is subject to the same notice provisions as
an original hearing. Upon such rehearing the Board of Appeals may
reverse, modify or annul its original order, decision or determination
upon the unanimous vote of all members present, provided that the
Board of Appeals finds that the rights vested in persons acting in
good faith in reliance upon the reviewed order, decision or determination
will not be prejudiced thereby.
(2)
Specific City procedure. In addition to the above
procedures, the following procedures shall govern the Board of Appeals:
(a)
Requests by applicant for recommendations. Prior
to seeking an area variance, an applicant may also request a recommendation
on a proposed variance request from any City board or commission with
expertise on an issue being considered and include that recommendation
in the appeal to the Board of Appeals.
(b)
Required information. Every appeal for relief
shall set forth the interpretation that is claimed or the details
of the variance applied for and the grounds for which it is claimed
that the variance should be granted, as the case may be. Appeals shall
be in writing, on forms prescribed by the Board of Appeals, and shall
be filed with the Secretary of the Board. The applicant shall provide
a site plan and such other drawings and/or additional information
as are necessary for the Board of Appeals to properly consider the
appeal for relief.
[Amended 7-3-2019 by Ord.
No. 2019-13]
(c)
Continuances. The Board of Appeals may, on its
own motion or upon request by the applicant, continue the hearing.
(d)
Fees.
[Amended 1-29-2003 by Ord. No. 2003-2]
[1]
Area variances for deck or swimming pool, one-
and two-family dwellings: $50;
[2]
All other area variances for one- and two-family
dwellings: $100.
[3]
Area variances for multiple residence buildings,
commercial properties, or sign variances: $150.
[5]
All use variances: $300.
[6]
Special permit applications for accessory apartments,
bed-and-breakfast homes, and home occupations: $100.
[Amended 7-3-2019 by Ord.
No. 2019-13]
[7]
All other special permit applications (including
bed-and-breakfast inns): $150.
[Amended 7-3-2019 by Ord.
No. 2019-13]
(e)
Notices to the public. If a variance or interpretation
requested, the appellant shall send notice of the same by mail to
all property owners within 200 feet of the boundaries of the lot under
consideration. Such notice shall state the relief sought, the type
of use contemplated and such additional information as shall be required
by the Zoning Administrator or the designee of the Director of Planning
and Development and shall be mailed five days prior to the meeting
of the Planning Board which next precedes the public hearing. Proof
of such mailing shall be filed with the Board of Appeals prior to
the holding of the public hearing.
[5]
Editor's Note: This local law passed at referendum on 11-5-2013.
(f)
Report by the City Planning and Development
Board. At least seven days before any meeting of the Planning and
Development Board which precedes the date of the hearing required
by law on any appeal to the Board of Appeals, the Secretary of the
Board shall transmit to the Planning and Development Board a copy
of said appeal, together with a copy of the notice of the aforesaid
hearing. When a variance or interpretation is requested, no Board
of Appeals action thereon shall be taken until the Planning and Development
Board has had the opportunity to submit a report as to conformance
with long-range planning objectives. The Planning and Development
Board shall have the right to request that action by the Board of
Appeals be adjourned for one month to allow the Planning and Development
Board to submit such a report as to conformance with long-range planning
objectives.
[Amended 7-3-2019 by Ord.
No. 2019-13]
(g)
Publication of notices. Notice of a public hearing
on appeals and adjourned or rescheduled hearings on said appeals shall
be given by publication twice in the official newspaper of the City
of Ithaca, which notice shall state the relief sought, the appellant's
name and the location of the property and the date of said hearing.
The first notice shall be not less than five days before the date
of the public hearing.
(h)
Decision of the Board of Appeals. Every decision
of the Board of Appeals shall contain a full record of the findings
of the Board in the particular case and a written summary of the evidence
presented at the hearing.
(i)
Rules and regulations. The Board of Appeals
shall adopt from time to time such rules and regulations as it may
deem necessary to carry into effect the provisions of this chapter,
and all its orders and resolutions shall be in accordance therewith.
These rules and regulations shall be in effect when filed with the
City Clerk.
C.
Board of Appeals; variances.
[Amended 7-3-2019 by Ord.
No. 2019-13]
(1)
Orders, requirements, decisions, interpretations,
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 ordinance or local law and to that end
shall have all the powers of the administrative official from whose
order, requirement, decision interpretation or determination the appeal
is taken.
(2)
Use variances.
(a)
The Board of Appeals, on appeal from the decision
or determination of the administrative official charged with the enforcement
of such ordinance or local law, shall have the power to grant use
variances, as defined herein.
(b)
No such use variance shall be granted by the
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, for each and every permitted use under
the zoning regulations for the particular district where the property
is located:
[1]
The applicant cannot realize a reasonable return,
provided that lack of return is substantial as demonstrated by competent
financial evidence;
[2]
The alleged hardship relating to the property
in question is unique and does not apply to a substantial portion
of the district or neighborhood;
[3]
The requested use variance, if granted, will
not alter the essential character of the neighborhood; and
[4]
The alleged hardship has not been self-created.
(c)
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 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)
Area variances.
(a)
The Board of Appeals shall have the power, upon
an appeal from a decision or determination of the administrative official
charged with the enforcement of such ordinance or local law, to grant
area variances as defined herein.
(b)
In making its determination, the 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 of Appeals shall also consider:
[1]
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;
[2]
Whether the benefit sought by the applicant
can be achieved by some method feasible for the applicant to pursue,
other than an area variance;
[3]
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 Board
of Appeals but shall not necessarily preclude the granting of the
area variance.
(c)
In making its determination, the Board of Appeals
may also take into consideration the following factors. If the applicant
wishes the Board of Appeals to consider any of these additional factors,
the burden of proof is on the applicant to clearly identify the factor
and to submit sufficient evidence to establish that this factor applies.
[1]
Whether the requested variance represents a
relatively minor deviation from the area requirements in question.
[2]
Whether a substantial positive change will be
produced in the character of the neighborhood.
[3]
Whether granting the variance will increase
the accessibility or adaptability for handicapped or disabled persons.
[4]
Whether granting the variance will have a positive
impact on the amount, type, price or location of the City's supply
of affordable housing; in order for the Board to consider this factor,
the applicant must demonstrate that there exists a binding legal obligation
to provide housing, for a period not less than 15 years, which is
affordable to low- or moderate-income families or individuals, as
defined by federal regulations or other clearly recognized standards.
[5]
Whether granting the variance will enhance or
foster the preservation of the scenic or natural beauty of the area,
its architectural character, historic resources or other rare or irreplaceable
features.
(d)
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.
(4)
Imposition of conditions. The Board of Appeals shall,
in the granting of 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. 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.
(5)
Expiration of variances.
(a)
When an area variance is granted by the Board
of Appeals which enables an applicant to do construction which requires
a building permit or a use variance is granted by the Board of Appeals
and construction which requires a building permit is necessary for
conversion to the use for which the variance is granted, and the applicant
has not obtained a building permit to construct the building or part
thereof for which the variance has been granted and initiated the
construction work within two years from the date of the granting of
the variance, said variance shall become void.
(b)
When an area variance is granted by the Board
of Appeals which enables an applicant to do construction which requires
a building permit, or a use variance is granted by the Board of Appeals
and construction which requires a building permit is necessary for
conversion to the use for which the variance is granted and a building
permit to construct the building or part thereof for which the variance
has been granted has been obtained, and the construction has not been
substantially completed prior to the expiration of the building permit,
said variance shall become void.
(c)
When a use variance is granted by the Board
of Appeals and no construction which requires a building permit is
necessary for conversion to the use for which the variance is granted
and the applicant has not obtained a certificate of occupancy for
the use for which the variance was granted within two years from the
date of the granting of the variance, the variance shall become void.
(6)
Appeals. Appeals from decisions of the Board of Appeals
shall be made under Article 78 of the Civil Practice Law and Rules
and shall be governed by § 81-c of the General City Law.
[1]
Editor's Note: Former § 325-41, Design review, added
4-26-1979 by Ord. No. 79-6, as amended, was repealed 12-7-2011 by
Ord. No. 2011-14. See now Ch. 60, Design Review.
