[Amended 10-22-2007 by Ord. No. 10-2007]
The Code Enforcement Officer shall have the power and duty to
enforce the provisions of this chapter. The Zoning Administration
Officer shall have the power and duty to administer the provisions
of this chapter.
A.
Application. The Code Enforcement Officer shall review all applications and, if the proposal fully complies with all applicable requirements of this chapter and Chapter 97,[1] and if no site plan review is required, a permit shall
be issued. If the applicant's plans do not meet the requirements of
this chapter, the application must be denied. The Code Enforcement
Officer must enforce the strict letter of the law, and is not authorized
to use discretionary judgment. Inspections shall be made as are necessary
to ensure compliance with this chapter.
B.
Referral to City Planning Board. Any application for a change of
zoning district or use that requires site plan review shall be forwarded
by the Code Enforcement Officer to the Director of Planning and Development
for review by the Planning Board, along with all supporting documentation.
C.
Referral to the Zoning Board of Appeals. An applicant, after having
been denied a building permit, or an aggrieved party in cases of a
question of interpretation, may appeal the Code Enforcement Officer's
decision or determination to the Zoning Board of Appeals (ZBA) for
a variance or an interpretation. Should an appeal be requested, the
Code Enforcement Officer shall notify the Director of Planning and
Development of the request and forward the completed variance form
along with all necessary supporting information to the ZBA.
D.
Duties of the Code Enforcement Officer. In addition to general enforcement
of this chapter, the duties of the Code Enforcement Officer shall
include, but are not limited to:
(1)
Review of applications and issuance of permits.
(2)
On-site inspection of construction and development to ensure compliance
with permits and approved site plans.
(3)
Complaint review and follow-up.
(4)
Maintenance of all zoning records and permits open to the public.
(5)
Provide assistance to the Director of Planning and Development, the
Planning Board or Zoning Board of Appeals, when requested, to assist
each in fulfilling their responsibilities, duties and projects.
(6)
Prepare and present an annual written report to the City Council
and the City Planning Board every January or at the request of the
Planning Board describing and enumerating actions taken and permits
issued over the previous year. Such report shall separately list the
number of permits issued for newly constructed residences, conversions,
commercial uses and industrial uses.
(7)
At the request of the Director of Planning and Development, attend
meetings of the Planning Board and the Zoning Board of Appeals.
E.
Duties of the Zoning Administrative Officer. In addition to general
administration of this chapter, the duties of the Zoning Administrative
Officer shall include, but are not limited to:
(1)
Attend all meetings of the Planning Board and Zoning Board of Appeals,
except where the Chairperson decides the Zoning Administrative Officer's
attendance is not needed.
A.
Authority. As authorized by § 27 of the General City Law,
there shall be a Planning Board consisting of five members, holding
staggered three-year terms, appointed by the and City Council. Additionally,
pursuant to § 27(16) of the General City Law, one alternate
member may be appointed by the Mayor and City Council to substitute
for a regular member of the Planning Board in the event that a regular
member is unable to participate in matters before the Planning Board
because of a conflict of interest, illness or other absence.
[Amended 5-27-2008 by L.L. No. 5-2008; 3-27-2017 by Ord. No. 5-2017]
B.
Members.
[Amended 5-27-2008 by L.L. No. 5-2008]]
(1)
Appointment. Planning Board and alternate members shall be appointed
by the Mayor and City Council, who shall have authority to remove
any member for cause after a public hearing.
[Amended 11-10-2014 by Ord. No. 16-2014]
(2)
Removal. Members may be removed by the Mayor and City Council for
cause and after a public hearing has been held. Cause for removal
may include, but shall not be limited to, unexcused absences from
two consecutive regularly scheduled meetings, failure to fulfill general
attendance requirements or failure to complete prescribed training.
The Director of Planning and Development shall notify the City Manager
in writing on or about December 1 in any year, or at any other time
if warranted, of any member who fails to comply with the minimum requirements
for meeting attendance and/or training in any calendar year. In the
event a member of the Planning Board has failed to complete the minimum
attendance and/or training requirements set forth in this chapter,
then the Mayor and City Council may remove such member for cause as
herein provided:
[Amended 11-10-2014 by Ord. No. 16-2014]
(a)
Notice. Such members shall be mailed a written notice specifying
the nature of the failure of such member to meet the minimum requirements
regarding training and attendance.
(b)
Public hearing. Such notice shall specify a date, not less than
10 nor more than 30 days from the date of mailing such notice, when
the Mayor and City Council shall convene and hold a public hearing
on whether or not such member should be removed from service on such
Board. Such notice shall also specify the time and place of such hearing.
[Amended 11-10-2014 by Ord. No. 16-2014]
(c)
Public notice. Public notice of such hearing shall be published
in a paper of general circulation within the town at least 10 days
prior to the date of the public hearing.
(d)
Conduct of hearing. The public hearing on the charges shall
be conducted before the Mayor and City Council during a City Council
meeting. The member shall be given an opportunity to present evidence
and to call witnesses to refute the charges. A record of such hearing
shall be made. The decision of the Mayor and City Council shall be
in writing and shall set forth specific findings with respect to each
charge against such member. Said decision and findings shall be filed
in the office of the City Clerk and mailed by certified mail, return
receipt, to the member within five business days of such filing.
[Amended 11-10-2014 by Ord. No. 16-2014]
(e)
Action by the Mayor and City Council. Following the hearing
and upon a finding that such member has not met the minimum attendance
and/or training established by this chapter, the Mayor and City Council
may:
[Amended 11-10-2014 by Ord. No. 16-2014]
[1]
Remove such member from the Planning Board; or
[2]
Issue a written reprimand to such member without removing such
member from such Board; or
[3]
Take no action if the Mayor and City Council shall find the
reasons for failing to meet the minimum meeting attendance and/or
training requirements are excusable because of illness, injury or
other good and sufficient cause.
[Amended 11-10-2014 by Ord. No. 16-2014]
(f)
Nothing contained herein shall be deemed to limit or restrict
the Mayor and City Council's authority to remove a member from the
Planning Board for cause for reasons other than as enumerated herein.
The procedural rules established under this section shall govern any
hearing to remove a member for such cause.
[Amended 11-10-2014 by Ord. No. 16-2014]
(g)
In the event of the removal of a member for cause, such act
shall not nullify any action or vote taken by said member as a member
of the Planning Board.
(3)
Eligibility.
(a)
No member of the Zoning Board of Appeals shall be eligible for
membership on the Planning Board.
(b)
No elected official shall be eligible for membership on the
Planning Board.
(c)
No member of the Planning Board shall hold any paid position
with the City.
(d)
Full-time residency in the City of Ogdensburg is required.
(e)
No person shall be disqualified from serving as a member of
the Planning Board by reason of serving as a member or employee of
the St. Lawrence County Planning Board or Department.
(f)
Any person who shall fail to be in compliance with the training
and/or attendance requirements shall be ineligible for reappointment
to this Board.
(4)
Vacancy. If a vacancy shall occur other than by expiration of a term,
it shall be filled by appointment for the unexpired term by the Mayor
and City Council.
[Amended 11-10-2014 by Ord. No. 16-2014]
(5)
Attendance.
(a)
All members of the Planning Board shall be required to attend
a minimum of 75% of the Board meetings scheduled within a calendar
year. Additionally, no member shall be absent, without excuse, for
more than two consecutive regularly scheduled meetings.
(b)
Noncompliance with minimum requirements relating to attendance
at meetings shall be deemed a proper cause for removal from office.
(6)
Training.
(a)
All members of the Planning Board shall complete a minimum of
five hours of relevant training within one year from the date of their
initial appointment to the Planning Board. Thereafter, each member
shall complete four hours of relevant training in each subsequent
year of membership. Training sessions which relate to the duties of
members of the Planning Board may include, but shall not be limited
to, programs offered by the New York State Department of State, New
York State Planning Federation, New York State Department of Environmental
Conservation, St. Lawrence County Planning Department, New York State
Conference of Mayors, and other such entities, as well as in-house
updates, seminars, or other web-based training as may be approved
and recommended by the Director of Planning and Development, the City
Manager, and/or prescribed by the City Council by resolution or as
required under § 27(7-a) of the General City Law.
(b)
The costs of such seminars, workshops or continuing education
courses so designated shall be a City charge. Members shall also be
reimbursed for travel and meal expenses according to the administrative
regulations. In order to be eligible for cost assumption and expense
reimbursement, such training session shall be approved in advance
by the Director of Planning and Development and the City Manager.
(c)
Noncompliance with minimum requirements relating to training
shall be deemed a proper cause for removal from office.
C.
Officers, expenses and rules.
(1)
Officers. The Mayor and City Council shall designate a member of
the Planning Board to act as Chairperson or, on failure to do so,
the Planning Board shall elect a Chairperson from its own members.
In addition, the Planning Board shall elect a Vice Chairperson to
act in the Chairperson's absence.
[Amended 11-10-2014 by Ord. No. 16-2014]
(2)
Expenses. The Planning Board shall have the power and authority to
employ experts, clerks and a secretary, and to pay for their services
and such other expenses as may be necessary and proper, not exceeding
in all the appropriation that may be made by the City Council for
the Planning Board. The City Council may also provide for compensation
to be paid to the members of the Planning Board.
(3)
Rules. The Planning Board may adopt rules for its operations as may
be necessary to carry out its duties under this chapter. In particular,
the Board shall conduct itself according to the following:
(a)
Meetings. The Planning Board shall have regularly scheduled
meetings or shall meet at such other times as the Chairperson determines.
The Planning Board may also advertise and hold public hearings when
it desires. Notice of all public hearings shall be published in the
official paper at least five days prior to the date of the meeting.
All meetings of the Planning Board shall be open to the public.
(b)
Records. The Board shall keep minutes of its proceedings. All
decisions of the Board shall be recorded in the minutes which shall
fully set forth the reasons for the decision of the Board and the
findings of fact on which the decision was based, and such record
of every official determination of the Board shall be filed in the
office of Planning and Development as a public record.
(c)
Quorum and voting. Attendance by a majority of the Board's fully
authorized membership, not the number of filled positions, satisfies
a quorum to make official decisions. All decisions shall be made by
at least a majority vote of the full membership. In site plan and
special permit applications referred to the County Planning Board,
which recommends denial or approval with modifications, a majority
plus one vote of the Board's full membership shall be required to
act contrary to the County Planning Board's recommendation; however,
the Planning Board may deny any application by a simple majority vote
of its full membership.
D.
Powers and duties. The Planning Board shall have all the powers and
duties prescribed by law and this chapter. The primary responsibility
of the Planning Board is to advise the City Council, City staff and
other agencies and boards on matters affecting community development.
In particular, the powers of the Planning Board are:
(1)
Community plan. The Planning Board may prepare a community plan as
will provide for the improvement of the City and its future growth,
protection and development, and will afford adequate facilities for
housing for all income levels, transportation, distribution, comfort,
convenience, public health, safety and segments of the common general
welfare of its population.
(2)
Land use regulations. The Planning Board may draft and recommend
the adoption or amendment of land use regulations to the City Council.
(3)
Review subdivisions. The Planning Board may approve, conditionally
approve or disapprove subdivision plans for the purpose of providing
for the orderly and wise development of the City and affording adequate
facilities for housing, transportation, distribution, comfort, convenience,
safety and the health and welfare of its population.
(4)
Review site plans. The Planning Board may review and approve, approve
with modifications or disapprove site plans according to standards
set forth in this chapter.
(5)
Official Map. The Planning Board shall review and make a recommendation
to the City Council, within 30 days of such referral, to change or
add to the Official Map of the City so as to lay out new streets,
highways or parks or to widen or close existing streets, highways
or parks. The City Council's adoption or revision of the Official
Map does not obligate the City to commence condemnation proceedings
to acquire land in the bed of a street as shown on the map, nor does
it compel the City to open a street shown on the map.
(6)
Report on referred matters. The Planning Board may report on all
matters referred to it by the Zoning Board of Appeals and the City
Council, including proposed amendments to this chapter.
(7)
Investigations and reports. The Planning Board shall have authority
to make investigations, maps and reports and recommendations relating
to the planning and development of the City as it deems desirable,
provided that the total expenditures of such actions shall not exceed
the appropriations for its expenses.
(8)
Special permits. After public notice and hearing, site plan review
by the County Planning Board, proof of receipt of all applicable federal
and state permits and after taking into consideration the public health,
safety and general welfare and subject to appropriate conditions and
safeguards, a special permit may be granted.
E.
Appeals. Any person aggrieved by any decision of the Planning Board
may apply to the Supreme Court for review under Article 78 of Civil
Practice Law and Rules. Such proceedings shall be instituted within
30 days after filing of a decision in the office of the City Clerk.
Costs shall not be allowed against the Planning Board unless it shall
appear to the Court that it acted with gross negligence or in bad
faith or with malice in making the decision appealed from.
A.
Authority. As authorized by § 81 of the General City Law,
there shall be a Zoning Board of Appeals (ZBA) consisting of five
members, holding staggered three-year terms, appointed by the Mayor
and City Council. Additionally, pursuant to § 81(11) of
the General City Law, one alternate member may be appointed by the
Mayor and City Council to substitute for a regular member of the Zoning
Board of Appeals in the event that a regular member is unable to participate
in matters before the Zoning Board of Appeals because of a conflict
of interest, illness or other absence.
[Amended 5-27-2008 by L.L. No. 5-2008; 11-10-2014 by Ord. No. 16-2014; 6-12-2017 by Ord. No. 9-2017]
B.
Members.
[Amended 5-27-2008 by L.L. No. 5-2008; 11-10-2014 by Ord. No. 16-2014]
(1)
Appointment. Members of the Zoning Board of Appeals and alternate
members shall be appointed by the Mayor and City Council, who shall
have the authority to remove any member for cause after a public hearing.
(2)
Removal. Members may be removed by the Mayor and City Council for
cause and after a public hearing has been held. Cause for removal
may include, but shall not be limited to, unexcused absences from
two consecutive regularly scheduled meetings, failure to fulfill general
attendance requirements or failure to complete prescribed training.
The Director of Planning and Development shall notify the City Manager
in writing on or about December 1 in any year, or at any other time
if warranted, of any member who fails to comply with the minimum requirements
for meeting attendance and/or training in any calendar year. In the
event a member of the Zoning Board of Appeals has failed to complete
the minimum attendance and/or training requirements set forth in this
chapter, then the Mayor and City Council may remove such member for
cause as herein provided:
(a)
Notice. Such members shall be mailed a written notice specifying
the nature of the failure of such member to meet the minimum requirements
regarding training and attendance.
(b)
Public hearing. Such notice shall specify a date, not less than
10 or more than 30 days from the date of mailing such notice, when
the Mayor and City Council shall convene and hold a public hearing
on whether or not such member should be removed from service on such
Board. Such notice shall also specify the time and place of such hearing.
[Amended 11-10-2014 by Ord. No. 16-2014]
(c)
Public notice. Public notice of such hearing shall be published
in a paper of general circulation within the town at least 10 days
prior to the date of the public hearing.
(d)
Conduct of hearing. The public hearing on the charges shall
be conducted before the Mayor and City Council during a City Council
meeting. The member shall be given an opportunity to present evidence
and to call witnesses to refute the charges. A record of such hearing
shall be made. The decision of the Mayor and City Council shall be
in writing and shall set forth specific findings with respect to each
charge against such member. Said decision and findings shall be filed
in the office of the City Clerk and mailed by certified mail, return
receipt, to the member within five business days of such filing.
[Amended 11-10-2014 by Ord. No. 16-2014]
(e)
Action by the Mayor and City Council. Following the hearing
and upon a finding that such member has not met the minimum attendance
and/or training established by this chapter, the Mayor and City Council
may:
[Amended 11-10-2014 by Ord. No. 16-2014]
[1]
Remove such member from the Zoning Board of Appeals; or
[2]
Issue a written reprimand to such member without removing such
member from such Board; or
[3]
Take no action if the Mayor and City Council shall find the
reasons for failing to meet the minimum meeting attendance and/or
training requirements are excusable because of illness, injury or
other good and sufficient cause.
[Amended 11-10-2014 by Ord. No. 16-2014]
(f)
Nothing contained herein shall be deemed to limit or restrict
the Mayor and City Council's authority to remove a member from the
Zoning Board of Appeals for cause for reasons other than as enumerated
herein. The procedural rules established under this section shall
govern any hearing to remove a member for such cause.
[Amended 11-10-2014 by Ord. No. 16-2014]
(g)
In the event of the removal of a member for cause, such act
shall not nullify any action or vote taken by said member as a member
of the Zoning Board of Appeals.
(3)
Eligibility.
(a)
No member of the Planning Board shall be eligible for membership
on the Zoning Board of Appeals.
(b)
No elected official shall be eligible for membership on the
Zoning Board of Appeals.
(c)
No member of the Zoning Board of Appeals shall hold any paid
position in the City.
(d)
Full-time residency in the City of Ogdensburg is required.
(e)
No person shall be disqualified from serving as a member of
the Zoning Board of Appeals by reason of serving as a member or employee
of the St. Lawrence County Planning Board or Department.
(f)
Any person who shall fail to be in compliance with the training
and/or attendance requirements shall be ineligible for reappointment
to this Board.
(4)
Vacancy. If a vacancy shall occur other than by expiration of a term,
it shall be filled by appointment for the unexpired term by the Mayor
and City Council.
[Amended 11-10-2014 by Ord. No. 16-2014]
(5)
Attendance.
(a)
All members of the Zoning Board of Appeals shall be required
to attend a minimum of 75% of the Board meetings scheduled within
a calendar year. Additionally, no member shall be absent, without
excuse, for more than two consecutive regularly scheduled meetings.
(b)
Noncompliance with minimum requirements relating to attendance
at meetings shall be deemed a proper cause for removal from office.
(6)
Training.
(a)
All members of the Zoning Board of Appeals shall complete a
minimum of five hours of relevant training within one year from the
date of their initial appointment to the Zoning Board of Appeals.
Thereafter, each member shall complete four hours of relevant training
in each subsequent year of membership. Training sessions which relate
to the duties of members of the Zoning Board of Appeals may include,
but shall not be limited to, programs offered by the New York State
Department of State, New York State Planning Federation, New York
State Department of Environmental Conservation, St. Lawrence County
Planning Department, New York State Conference of Mayors, and other
such entities, as well as in-house updates, seminars, or other web-based
training as may be approved and recommended by the Director of Planning
and Development and the City Manager and/or prescribed by the City
Council by resolution or as required under § 81(7-a) of
the General City Law.
(b)
The costs of such seminars, workshops or continuing education
courses so designated shall be a City charge. Members shall also be
reimbursed for travel and meal expenses according to the administrative
regulations. In order to be eligible for cost assumption and expense
reimbursement, such training session shall be approved in advance
by the Director of Planning and Development.
(c)
Noncompliance with minimum requirements relating to training
shall be deemed a proper cause for removal from office.
C.
Officers, expenses and rules.
(1)
Officers. The Mayor and City Council shall appoint the Zoning Board
of Appeals Chairperson. The ZBA membership shall elect a Vice Chairperson
to act as the Chairperson when the appointed Chairperson is absent.
[Amended 11-10-2014 by Ord. No. 16-2014]
(2)
Expenses. The City Council shall provide an appropriation to the
ZBA to cover necessary expenses, including the means for the ZBA to
provide proper notice of and maintain a record of its meetings and
public hearings. The City Council may also provide for compensation
to be paid to the members of the Zoning Board of Appeals.
(3)
Rules. The ZBA may adopt rules for its operations as may be necessary
to carry out its duties under this chapter. In particular, the Board
shall conduct itself according to the following:
(a)
Meetings. All meetings and hearings of the ZBA shall be held
at the call of the Chairperson and at such other times as a majority
of the members of the full Board may determine. Public notice of all
meetings shall be published in the official paper at least 10 days
prior to the date of the meeting or hearing. All meetings of the ZBA
shall be open to the public.
(b)
Records. The Board shall keep minutes of its proceedings, showing
the vote of each member upon every question put to vote or, if absent
or failing to vote, indicating said fact. All decisions of the Board
shall be recorded in the minutes which shall fully set forth the reasons
for the decision of the Board and the findings of fact on which the
decision was based, and such record of every official determination
of the Board shall be filed in the office of Planning and Development
as a public record.
(c)
Voting. A concurring vote of four members of the Zoning Board
of Appeals shall be necessary to reverse any order, requirement, decision
or determination of the Director of Planning and Development or the
Code Enforcement Officer. In variance applications referred to the
County Planning Board, which recommends denial or approval with modifications,
a majority plus one vote of the Board's full membership shall be required
to act contrary to the County Planning Board's recommendations; however,
the ZBA may deny any application by a simple majority vote of its
full membership.
[Amended 10-22-2007 by Ord. No. 10-2007]
(d)
Eligible applicants. An application for an appeal from any decision
made by the Director of Planning and Development or the Code Enforcement
Officer may be initiated by any person or party aggrieved or by an
officer, department or board of the City. An application for a variance
may only be made by the property owner or with written permission
of the property owner. An appeal for an interpretation or variance
may be made only after a determination and notification of action
is taken by the Director of Planning and Development or the Code Enforcement
Officer, except where such appeal is instituted by an official of
the City or the Planning Board.
[Amended 10-22-2007 by Ord. No. 10-2007]
(e)
Rehearing. The ZBA may rehear any order, decision or determination
of the Board previously reviewed upon a motion initiated by any member
of the Board and adopted by the unanimous vote of the members present,
but not less than a majority of all the members. Upon such rehearing,
held with notice given as for the original hearing, the Board may
reverse, modify or annul its original decision by a unanimous vote
of the members present.
D.
Procedure.
(1)
Application. Appeals and applications made to the ZBA shall be in
writing on forms available from the Director of Planning and Development
or the Code Enforcement Officer. Every application shall refer to
the specific provision of the regulations involved and shall exactly
set forth the interpretation that is applied for or demonstrate a
practical difficulty or unnecessary hardship for variance applications.
The Director of Planning and Development or the Code Enforcement Officer
shall transmit to the Board all of the records concerning the case
which is being appealed.
[Amended 10-22-2007 by Ord. No. 10-2007]
(2)
Time limit for appeals. All appeals of decisions of the Director
of Planning and Development or the Code Enforcement Officer shall
be applied for within 30 days after filing of a decision in the office
of the City Clerk.
[Amended 10-22-2007 by Ord. No. 10-2007]
(3)
Referrals. Appeals may be referred to the City Planning Board for
a nonbinding recommendation at the request of the Zoning Board of
Appeals. Where an appeal for a variance involves lands within 500
feet of an adjoining municipality, state or county highway or state-
or county-owned land on which a public building is situated, the appeal
shall be referred to the Saint Lawrence County Planning Board and
acted upon in accord with the provisions of § 239 of the
General Municipal Law.
(4)
Public hearing. The ZBA shall fix a reasonable time for a public
hearing in connection with an appeal and shall give public notice
by publication in the official newspaper at least 10 days prior to
that date. Additionally, notice of the public hearing shall be mailed
to the applicant and to all owners of property which lie adjacent
to or within 100 feet for an area variance or 300 feet for a use variance
of the property in question at least five days before such hearing.
(5)
Decision and notification. Within 60 days from the date of any public
hearing the Board shall render a determination on any appeal and notify
the applicant, in writing, within five working days of the date of
the determination. The ZBA shall further notify the Director of Planning
and Development or the Code Enforcement Officer, City Clerk and Planning
Board of the action taken on any application.
[Amended 10-22-2007 by Ord. No. 10-2007]
(6)
Expiration of variance. Unless construction is commenced and diligently
pursued within six months of the date of granting a variance, such
variance shall become null and void unless, upon application and receipt,
an extension is granted by the ZBA.
(7)
Appeal from decision of the Zoning Board of Appeals. Any person aggrieved
by any decision of the Zoning Board of Appeals may apply to the Supreme
Court for relief under Article 78 of the Civil Practice Law and Rules.
Such proceeding must be instituted within 30 days after the filing
of a decision in the office of the City Clerk.
E.
Powers and duties. The Zoning Board of Appeals shall have all the
powers and duties prescribed by law and this chapter. In particular,
the powers of the ZBA are:
(1)
Interpretation: To decide any question involving the interpretation
of any provision of this chapter, including determination of the exact
location of any zoning district boundary or any other determination
made in the application and administration of this chapter. Such interpretation
shall be considered and rendered by the Board only upon application
or appeal following a determination made by the Director of Planning
and Development or the Code Enforcement Officer, unless requested
by an officer of the City or the Planning Board.
[Amended 10-22-2007 by Ord. No. 10-2007]
(2)
Variances.
(a)
Variances may be granted to modify or vary the strict application of any of the requirements of this chapter so that the spirit of this chapter shall be observed, public safety and welfare secured and substantial justice done where strict application would result in a practical difficulty or unnecessary hardship that would deprive the owner of the reasonable use of the land or building involved. The unnecessary hardship or practical difficulty must relate to the land, not the applicant, as all variances run with the land. A hardship or difficulty which is merely personal to the current owner of real property will not justify the granting of a variance which runs with the land. Variances granted are subject to site plan review according to Article XV.
(b)
AREA VARIANCE
USE VARIANCE
Definitions. As used in this section, the following terms shall
have the meanings indicated:
[Amended 1-23-1995 by Ord. No. 1-1995]
The authorization by the Zoning Board of Appeals for the
use of land in manner which is not allowed by the dimensional or physical
requirements of the applicable zoning regulations, such as minimum
lot size, minimum lot width, minimum setbacks, off-street parking
requirements or sign limitations.
The authorization by the Zoning Board of Appeals for the
use of land for a purpose which is otherwise not allowed or is prohibited
by the applicable zoning regulations.
[Amended 1-23-1995 by Ord. No. 1-1995]
Following are the standards for granting use and area variances
based upon New York State case law through 1993:
A.
Use variance standards. To grant approval for a use variance request,
the applicant must show that an unnecessary hardship exists with using
the property in strict compliance with this chapter. 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 determining whether an unnecessary
hardship exists, the ZBA's findings must establish that each and every
of the following tests is met:
(1)
Reasonable return. The applicant must demonstrate an inability to
realize a reasonable return under any of the uses permitted by this
chapter. There must be dollars-and-cents proof of the property's inability
to earn a reasonable return; failure to realize the highest return
is not considered a hardship. Proof required to show dollars-and-cents
proof is not met by a simple statement by the applicant, or on the
part of a realtor, that the land will not at this time attract a buyer
or developer for a purpose consistent with this chapter. The New York
Court of Appeals has stated that dollars-and-cents proof may be shown
by the following items:
(a)
The amount paid for the parcel of land in question;
(b)
The current value of the parcel;
(c)
The maintenance expenses;
(d)
The amount of taxes on the land;
(e)
The amount of mortgages and other encumbrances, such as liens
on the property;
(f)
Income from the land; and
(g)
Other facts relevant to the particular circumstances of the
case.
(2)
Uniqueness. The hardship is unique to this parcel and is not general
throughout the zoning district. The applicant must prove that there
are certain features or conditions of the parcel that make it possible
to earn a reasonable return without some adjustment of the zoning
regulations as they apply to the applicant's property. If features
or conditions are generally applicable throughout the district, a
variance should not be granted. If the hardship is common throughout
the area, relief should be accomplished by amendment to this chapter
rather than by granting a variance.
(3)
Character. The applicant must prove that the requested modification
will not change the character or quality of the neighborhood. In addition,
the spirit of this chapter should be preserved. Reviewing the purpose
statements of the zoning district for consistency with the proposed
use is one way to determine whether the character of the neighborhood
is preserved and the spirit of this chapter is upheld.
(4)
Self-created hardship. If the hardship complained of is self-imposed,
then the variance request may be denied. An applicant who acquires
land or proposes to acquire land for a purpose known to be prohibited
by this chapter creates his or her own hardship. Even if the applicant
did not actually learn of the prohibition at the time of purchase
he or she is nevertheless charged with knowing the restrictions on
use.
B.
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.
C.
Area variance standards. In making its determination, the Zoning
Board of Appeals shall take into consideration the benefit to the
applicant if the variance is granted, as weighted against the detriment
to the health, safety and welfare of the neighborhood or community
by such grant. In making such determination the Board shall 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 application 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.
(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.
D.
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.
E.
Following are some of the public purposes:
(1)
Protect the health and safety of residents.
(2)
Secure safety from the spread of fire and provide access for emergency
equipment.
(3)
Protect the rights of landowners and residents to adequate light,
air and sunshine.
(4)
Prevent the overcrowding of land and capacity of the streets.
(5)
Protect the value of property by prohibiting the intrusion of inappropriate
large, overshadowing structures.
(6)
Uphold the prevailing community character and form of the neighborhood.
(7)
Protect adjacent properties from detrimental impacts.
(8)
Reserve unbuilt areas for street widening.
F.
Imposition of conditions. The Zoning Board of Appeals shall, in the
granting of both 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 the Zoning
Ordinance and shall be imposed for the purpose of minimizing any adverse
impact such variance may have on the neighborhood or community.
[1]
Editor's Note: Former § 221-75, Enforcement, was
repealed 10-22-2007 by Ord. No. 10-2007.
[Added 6-27-2005 by Ord.
No. 6-2005; 10-22-2007 by Ord. No. 10-2007]
A.
In addition to a permit required pursuant to Chapter 97,[1] any one, or a combination of the following, shall require
a building permit:
(1)
The construction, erection or placement of any building or structure
unless expressly exempted from this chapter.
(2)
The expansion, addition or alteration of a building or structure
that would in any way alter its exterior dimensions, its interior
structural members or the provision for entrance or exit.
(3)
The introduction of any new, additional, changed or expanded use.
(4)
The alteration of any shoreline or major landform or the stripping
of topsoil for commercial purposes or in the preparation of a site
for uses that have not yet received a required building permit.
(5)
The deposit, removal, storing or excavation of rock, sand, dirt, gravel, clay or other like materials in the amount of more than 100 cubic yards in all districts on any lot or parcel for the purpose of altering existing grades except as otherwise exempted in § 221-76B(2).
B.
Permits issued pursuant to this section shall be governed by the
following:
(1)
The permit shall include as a condition thereof a finished grade
plan which will not adversely affect the adjacent land and as a condition
thereof shall regulate the type of fill and general maintenance of
the site and adjacent area.
(2)
Exceptions.
(a)
Foundations and basements. No separate permit shall be required
for the deposit, excavation, removal, or storage of rock, sand, dirt,
gravel, clay or other like material for the purpose of the foundation,
cellar or basement of some immediately pending structure to be erected,
built, or placed thereon contemporaneously with or immediately following
such excavation, removal, or storage, providing a building permit
has been issued.
(b)
Road construction. No permit shall be required for such excavations,
deposit, removal, or storage of rock, sand, dirt, gravel, clay, other
like material as may be required by the state or City authorities,
their agents or private utility companies franchised by the City in
connection with the construction or maintenance of roads, streets
and highways.
[Amended 10-22-2007 by Ord. No. 10-2007]
An application for a building permit shall be submitted in writing
to the Code Enforcement Officer along with the required submission
fee. An application for a special permit or a variance shall be submitted
in writing to the Zoning Administration Officer along with the required
submission fee. The application should satisfy the City submission
requirements, which are available from the Department of Fire, Division
of Codes, and/or the Department of Planning and Development.
[Amended 10-22-2007 by Ord. No. 10-2007]
The Code Enforcement Officer, or his or her designee, shall,
within 10 days after receiving a complete and properly prepared application,
either issue or deny a building permit. If an application requires
site plan review by the Planning Board, the planning and development
staff shall refer the application to the Planning Board along with
a report of any deficiencies with the proposal. If a building permit
is denied, the reasons for such denial shall be forwarded to the applicant
in writing.
[1]
Editor's Note: Former § 221-79, Expiration of building
permits, was repealed 10-22-2007 by Ord. No. 10-2007.
[Amended 10-22-2007 by Ord. No. 10-2007]
A certificate of occupancy or a certificate of compliance shall be required for any work that is the subject of a building permit issued pursuant to Chapter 97[1] or pursuant to this chapter. Said certificate shall comply with Chapter 97 and this chapter. Said permit shall be issued by the Code Enforcement Officer unless this Code requires otherwise. In such event, said certificate shall be issued jointly by the Director of Planning and Development and the Code Enforcement Officer. No certificate of occupancy shall be issued for a building or a use subject to site plan review by the Planning Board unless in conformance with the approved site plan and approved by the Director of Planning and Development. No certificate of occupancy shall be issued for a building or a use permitted subject to a variance granted by the Zoning Board of Appeals except in accordance with all conditions which may be prescribed by such Board and approved by the Director of Planning and Development.
The Zoning Board of Appeals shall hear and decide appeals from,
and review any order, decision or determination made in administering
or enforcing this chapter.
A.
Zoning Board of Appeals. All appeals for relief from the application of this chapter in matters of interpretations or requests for an area variance or use variance shall be directed to the Zoning Board of Appeals which shall function as prescribed in § 221-73 of this chapter. Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this chapter, the Zoning Board of Appeals shall have the power to vary the requirements of the regulations so that the spirit of the law shall be observed, public safety and welfare secured and substantial justice done.
B.
Court review. Any person or persons, jointly or severally aggrieved
by any decision of the Planning Board, Zoning Board of Appeals, City
Council or any officer of the City concerning this chapter may have
the decision reviewed in the manner provided by Article 78 of the
Civil Practice Law and Rules, provided that the proceeding is commenced
within 30 days after the receipt of written notice of the decision.
Costs shall not be allowed against the City unless it appears to the
Court that it acted with gross negligence or in bad faith or with
malice in making the decision appealed from.
A.
Citizen complaint. Any person may file with the Code Enforcement
Officer a written signed complaint against any alleged violation of
this chapter.
[Amended 10-22-2007 by Ord. No. 10-2007]
B.
Investigation. As directed by the Planning Board, Zoning Board of
Appeals, the Zoning Administration Officer, the Director of Planning
and Development or the City Council or by receipt of a signed, written
citizen complaint, the Code Enforcement Officer, or his or her designee,
shall make an investigation into the alleged violation. Depending
upon findings of fact, a correction notice, stop-work order or other
penalty or remedy may be issued to the liable person or persons as
appropriate.
[Amended 10-22-2007 by Ord. No. 10-2007]
C.
Persons liable. The owner, tenant or occupant of any building or
land or part thereof and any architect, builder, contractor, agent
or other person who participates in, assists, directs, creates or
maintains any situation that is contrary to the requirements of this
chapter shall be held responsible for the violation and suffer the
penalties and be subject to the remedies provided.
D.
Procedures upon discovery of violations.
(1)
If the Zoning Enforcement Officer, or his or her designee, finds
that any provision of this chapter are being violated, the person
or persons responsible for such violation shall be sent a written
notice indicating the nature of the violation and ordering the action
necessary to correct it.
(2)
The final written notice (the initial written notice may be the final notice) shall state what action the City's representative intends to take if the violation is not corrected and shall advise that such decision may be appealed to the Zoning Board of Appeals in accordance with § 221-73.
(3)
In cases where delay would seriously threaten the effective enforcement
of this chapter or pose a danger to the public health, safety or welfare,
the administration may seek enforcement without prior written notice
by invoking any of the penalties or remedies authorized below.
[Amended 10-22-2007 by Ord. No. 10-2007]
Stop-work orders. In addition to the authority granted in Chapter 97,[1] a stop-work order may be issued to preclude the continued
and further violation of this chapter or to protect the public's health
or safety. Such stop-work order shall stay all activity in conjunction
with any violation of this chapter. Any stop-work order will stipulate
that within 30 days a permit or certificate shall be obtained noting
compliance with this chapter. If such permit or certificate is not
obtained by the responsible party or the work continues in violation
of the stop-work order, action by the City will be initiated to compel
compliance, using such penalties or remedies as hereafter provided
for.
A.
A building or special use permit may be revoked by the Zoning Enforcement
Officer, or his or her designee, in accordance with the provisions
of this section, if the permit recipient fails to develop or maintain
the property in accordance with plans submitted, the requirements
of this chapter or any additional requirement lawfully imposed by
the permit- issuing board.
B.
Before a permit may be revoked, notice and hearing requirements for hearings of the Zoning Board of Appeals (see § 221-73, Zoning Board of Appeals, appeals procedure) shall be complied with. The notice shall inform the permit recipient of the alleged grounds for the revocation.
C.
The burden of presenting evidence sufficient to authorize the permit-issuing
authority to conclude that a permit should be revoked shall be upon
the party advocating that position. The burden of persuasion shall
also be upon that party. A motion by the permit-issuing board shall
include, insofar as practicable, a statement of the specific reasons
or findings of fact that support the motion.
D.
Before a building or special use permit may be revoked, the permit
recipient shall be given 10 days' notice of intent to revoke the permit
and shall inform the recipient of the alleged reasons for the revocation
and of his or her right to obtain an informal hearing on the allegations.
If the permit is revoked, a written statement of the decision along
with the reasons for the action shall be provided to the permittee
in writing.
E.
No person may continue to make use of land or buildings in the manner
authorized by any building or special use permit after such permit
has been revoked in accordance with this section.
Any person or persons, jointly or severally aggrieved by any
decision of the Planning Board, Zoning Board of Appeals or City Council
concerning this chapter, may have the decision reviewed in the manner
provided by Article 78 of the Civil Practice Law and Rules, provided
that the proceeding is commenced within 30 days after filing of the
decision with the City Clerk. Costs shall not be allowed against the
City unless it appears to the Court that it acted with gross negligence
or in bad faith or with malice in making the decision appealed from.
