[HISTORY: Adopted by the Town Board of the Town of Niskayuna. Amendments
noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 220.
As used in these rules, the following terms shall have the meanings
indicated:
The duly appointed Zoning Board of Appeals of the Town of Niskayuna.
A.
The Zoning Board of Appeals of the Town of Niskayuna
shall be governed by the provisions of all applicable state statutes, local
laws, ordinances and these rules.
B.
The Board shall become familiar with all the duly enacted
ordinances and laws of the Town under which it may be expected to act, as
well as with the applicable state statutes.
C.
The Board shall become familiar with the community goals,
desires and policies as expressed in a Comprehensive Plan, if any, and in
rendering decisions shall be guided by such Plan, if any, and grant the minimum
relief which will ensure that the goals and policies of the Plan are preserved
and substantial justice is done.
The officers of the Board shall consist of a Chairman, Acting Chairman
and Secretary.
A.
Chairman. The Chairman shall be designated by the Town
Board. He shall perform all duties required by law, ordinance and these rules.
He shall preside at all meetings of the Board. The Chairman shall decide on
all points of order and procedure, subject to these rules, unless directed
otherwise by a majority of the Board. The Chairman shall appoint any committees
found necessary to carry out the business of the Board. The Chairman may administer
oaths and compel the attendance of witnesses as necessary to carry out the
business of the Board. The Chairman's signature shall be the official
signature of the Board and shall appear on all decisions as directed by the
Board.
B.
Acting Chairman. An Acting Chairman shall be appointed
by a majority of the Board from its members to serve in the absence of the
Chairman. He shall have all the powers of the Chairman during his absence,
disability or disqualification.
C.
Secretary. A Secretary shall be appointed by the Board.
The Secretary, subject to the direction of the Board and the Chairman, shall
keep minutes of all Board proceedings, showing the vote of each member upon
question or, if absent or failing to vote, indicating such fact and shall
also keep records of all Board examinations and other official actions.
A.
Should any vacancy on the Board occur for any reason,
the Secretary shall give immediate notice thereof to the Town Clerk for the
Town Board.
B.
Should such a vacancy occur among the officers of the
Board subject to election by the Board, such office shall be filled by election,
for the unexpired term, at the next meeting of the Board.
A.
Regular meetings. The regular meeting of the Board shall
be held on the third Wednesday of each month at 7:30 p.m. in the Town Office
Building.
B.
Annual meeting. The annual organizational meeting of
the Board shall be the first regular meeting of the year.
C.
Special meetings.
(1)
Special meetings of the Board may be called by the Chairman.
At least 48 hours' written notice of the time, place and business of
the meeting shall be given each member of the Board.
(2)
The Chairman shall call a special meeting within 10 days
of receipt of a written request from any three members of the Board, which
request shall specify the matters to be considered at such special meeting.
D.
Cancellations of meetings. Whenever there are no appeals
or applications for variance or other business at a regular meeting, the Chairman
may dispense with such meeting by written notice to all members not less than
48 hours prior to the time set for such meeting.
F.
Executive meetings. The Board may meet in executive session
to deliberate on matters before the Board. However, any official action taken
by the Board shall be at a meeting open to the public. Executive meetings
may immediately precede the opening or follow the closing of regular meetings
or hearings.
A.
Quorum.
(1)
A quorum shall consist of a majority of the members of
the Board.
(2)
No hearing or meeting of the Board shall be held, nor
any action taken, in the absence of a quorum; however, those members present
shall be entitled to request the Chairman to call a special meeting for a
subsequent date. All subsequent hearings shall be readvertised in accordance
with the requirements of the applicable law.
B.
Voting.
(1)
All matters shall be decided by roll call vote. Decisions
on any matter before the Board shall require the affirmative vote of a majority
of the Board unless otherwise specified herein.
(2)
A tie vote or favorable vote by a lesser number than
the required majority shall be considered a rejection of the application under
consideration.
(3)
No member of the Board shall sit in hearing or vote on
any matter in which he is personally or financially interested. Said member
shall not be counted by the Board in establishing the quorum for such matter.
(4)
No member shall vote on the determination of any matter
requiring public hearing unless he has attended the public hearing thereon;
however, where such member has familiarized himself with such matter by reading
the record, he shall be qualified to vote.
A.
The Board shall hear and decide appeals from and review
any order, requirement, decision or determination made by an administrative
official charged with the enforcement of any ordinance adopted pursuant to
Article 16 of the Town Law. It shall also hear and decide all matters referred
to it or upon which it is required to pass under any other law. Such appeal
may be taken by any person aggrieved or by any officer, department, board
or bureau of the Town.
B.
Filing of appeals. An appeal must be made within 30 days
of the action of the administrative official appealed from. The applicant
must file a notice of appeal with the administrative official from whom the
appeal is taken and with the Secretary of the Board of Appeals. Such notice
shall be made on the form provided for that purpose. The administrative official
from whom the appeal is taken shall be responsible, at the direction of the
Board, for providing any applicant with the proper forms and for instructing
the parties concerned on the proper manner for completing and filing said
forms. All information required thereon shall be complete before an appeal
is considered filed. Three copies of the proper appeal form shall be filed
with the Board.
C.
Fees. A fee of $25 shall be deposited with the Secretary
for each appeal filed.
D.
Amendments to appeals. Appeals may be amended 15 days
prior to the public hearing thereon.
E.
Notice to applicant. The applicant shall be notified
by letter within five days of the hearing on his application or of his failure
to complete his application properly.
A.
Time of hearing. The Board shall schedule a hearing on
all appeals or applications within 90 days of the filing of the appeal or
application.
B.
Notice of hearing.
(1)
Zoning appeals. The Board shall give notice of the hearing
at least five days (§ 267, Subdivision 5, Town Law) prior to the
date thereof by publication in the official paper. The Board shall mail notices
of the hearing to the parties at least five days prior to the hearing.
(2)
Official Map appeals. The Board shall give public notice
of the hearing at least 10 days prior to the date thereof by publication in
a newspaper of general circulation in the Town, in accordance with § 279
of the Town Law, for appeals from the Town Official Map; or in accordance
with § 239-j of the General Municipal Law, for appeals from the
County Official Map.
(3)
Appeal to build on unimproved or unmapped street. Same
as Subsection B(l). See § 280-a, Subdivision 3, of the Town Law.
C.
Form of notice. Such notice shall state the location
of the building or lot, the general nature of the question involved, the date,
time and place of the hearing and the nature of the relief sought.
D.
Proceedings. The order of business at a hearing shall
be as follows:
(1)
Roll call.
(2)
The Chairman shall give a statement of the case and read
all correspondence and reports received thereon.
(3)
The applicant shall present his case.
(4)
Those opposed shall present their arguments.
(5)
Rebuttal by both sides.
(6)
Additional cases.
(7)
Adjournment of hearings.
(8)
Call to order of regular meeting (when applicable; see
§ 235-5E).
F.
Rehearing.
(1)
Upon motion initiated by any member and adopted by unanimous
vote of the members present, but not less than a majority of all the members,
the Board shall review at a rehearing any order, decision or determination
of the Board not previously reviewed. Notice shall be given as upon an original
hearing. Upon such rehearing and provided that it shall appear that no vested
rights due to reliance on the original order, decision or determination will
be prejudiced thereby, the Board may, upon the concurrence of all the members
present, reverse, modify or annul its original order, decision or determination.
(2)
An application for a rehearing may be made in the same
manner as provided for the original hearing. The application for rehearing
may be denied by the Board if from the record it shall appear that there has
been no substantial change in facts, evidence or conditions.
A.
Zoning referrals. All matters requiring referral as specified
by any ordinance enacted under Article 16 of the Town Law shall be so referred
to the proper agency for its recommendations. Within 30 days, or as specified
in the particular ordinance, after receipt of a full statement of such referred
matter, said agency shall report its recommendations thereon to the Board,
with a full statement of the reasons for such recommendations. If such agency
fails to respond within the prescribed time, the Board may act without such
report. The Board shall not act contrary to any said agency's recommendations
without first fully setting forth in the official record the reasons for such
contrary action. The Chairman shall read all such reports at the hearing on
the matter under review.
B.
County zoning referrals.
(1)
Prior to taking action on any matter which would cause
any change in the regulations or use of land or buildings on real property
as specified in § 239-m of the General Municipal Law, the Board
shall make referrals to the County planning agency or, in the absence of such
agency, to a metropolitan or regional agency having jurisdiction in accordance
with §§ 239-l and 239-m of the General Municipal Law.
(2)
Within 30 days after receipt of a full statement of such
referred matter, the planning agency to which referral is made or an authorized
agent of said agency shall report its recommendations thereon to the Board,
accompanied by a full statement of the reasons for such recommendations. If
such planning agency disapproves the proposal or recommends modification thereof,
the Board shall not act contrary to such disapproval or recommendation except
by a vote of a majority plus one of all the members thereof and after the
adoption of a resolution fully setting forth the reasons for such contrary
action. The Chairman shall read the report of the County planning agency at
the public hearing on the matter under review.
(3)
If such planning agency fails to report within such period
as may have been agreed upon by it and the referring agency, the Board may
act without such report.
A.
Time of decisions. Decisions by the Board shall be made
not later than 60 days from the date of the final hearing.
B.
Form of decision. The final decision on any matter before
the Board shall be made by written order signed by the Chairman. Such decision
shall state the findings of fact which were the basis for the Board's
determination. After such determination, the Board may reverse or affirm,
wholly or partly, or may modify the order or requirement of the administrative
official appealed from. The decision shall also state any conditions and safeguards
necessary to protect the public interest.
C.
Basis for decisions.
(1)
The Board, in reaching said decision, shall be guided
by standards specified in the applicable ordinance as well as by the community
goals and policies as specified in a Comprehensive Plan, if any, and by the
findings of the Board in each case.
(2)
Finding of facts. The Board shall make the following
findings prior to granting a variance for relief from the strict application
of the Zoning Ordinance.[1] The Board shall find that:
(a)
Strict application of the ordinance would produce undue
hardship and that the hardship is not self-created.
(b)
The hardship is unique and is not shared by all properties
alike in the immediate vicinity of the property and in the use district.
(c)
The variance would observe the spirit of the ordinance
and would not change the character of the district.
(d)
The variance would observe the intent of the Comprehensive
Plan, if any.
(e)
The variance is the minimum necessary to grant relief.
(3)
Area variance. When the variance requested is an area
variance (i.e., a request for a variance from the required yard, setback,
height or area regulations), the Board may grant said variance upon finding
that:
(4)
Findings; contents.
(a)
The findings of the Board and the supporting facts shall
be spelled out in detail regardless of whether they are based on evidence
submitted or on the personal knowledge of the Board.
(b)
The Board should show that:
[1]
It has made an intelligent review of the question.
[2]
It has considered all of the information or evidence.
[3]
It has heard all parties in question.
[4]
Any intimate knowledge it has of the subject under question
has been taken into account.
[5]
It has made a personal inspection of the parcel in question,
and from this examination certain findings were ascertained.
(5)
Conflicts with other laws or regulations. In reviewing
an application on any matter, the standards in any applicable local law or
ordinance or state statute shall take precedence over the standards of these
rules whenever a conflict occurs. In all other instances, the more-restrictive
rule shall apply.
D.
Expiration of permits. Unless otherwise specified, any
order or decision of the Board for a permitted use shall expire if a building
or occupancy permit for the use is not obtained by the applicant within 90
days from the date of the decision; however, the Board may extend this time
an additional 90 days.
E.
Decisions on rehearings. After a rehearing, other than one based on a substantial change in conditions, the original order may be changed only by a concurring vote of all the members then present, but not less than a majority of the Board, and in conformance with § A235-8F(1) of these regulations.
F.
Filing of decisions. Decisions of the Board shall be
immediately filed in the office of the Town Clerk and shall be a public record.
The date of filing of each decision shall be entered in the official records
and minutes of the Board.
G.
Notice of decision. Copies of the decision shall be forwarded
to the applicant, the Municipal Planning Board and the County planning agency
when referral to the County planning agency was required in the particular
case.
H.
Certification of decision. A certified copy of the Board's
decision, including all terms and conditions, shall be transmitted to the
municipal administrative official and shall be binding upon and observed by
him and he shall fully incorporate such terms and conditions of the same in
the permit to the applicant or appellant whenever a permit is authorized by
the Board.
A.
Adoption. Upon adoption of these rules by the Board,
the Secretary shall file a copy of these rules with the Town Clerk and they
shall be a public record.
B.
Amendment. These rules may be amended by an affirmative
vote of not fewer than four members of the Board (for a five-man board), provided
that such amendment be presented in written form at a regular or special meeting
preceding the meeting at which the vote is taken.
