A.
The Rochester Environmental Commission is hereby designated
as the Coastal Erosion Hazard Board of Review, hereinafter referred
to as the Board of Review.
B.
The Board of Review shall have the following jurisdiction
and authority:
(1)
Subject to the provisions of § 43A-17 hereof, to hear and decide appeals from and review orders, including stop or cease-and-desist orders, decisions or determinations made by the Administrator and, to that end, shall have the power of the Administrator with respect to such order, decision or determination.
C.
Form of decision. Each decision of the Board of Review
shall be by written resolution which shall include findings of fact,
shall refer to all the evidence in the record and any documentation
upon which such decision is based, shall specify the reason or reasons
for such decision, shall contain a conclusion or statement separate
from the findings of fact setting forth the specific relief granted
or denying relief and shall expressly set forth any limitations or
conditions imposed on any relief granted or activity authorized.
A.
Authority. The Board of Review shall hear and decide
appeals from and review orders, decisions, determinations or the failure
to act of the Administrator and to that end shall have the same powers
and be subject to the same standards and limitations as the Administrator
with respect to any order, decision or determination being appealed.
B.
Parties entitled to appeal. An appeal may be taken
to the Board of Review by any applicant or aggrieved owner of property
which is either within the Coastal Erosion Hazard Area or contiguous
thereto and is affected by a decision of the Administrator.
C.
Procedure.
(1)
Notice of appeal. Appeal to the Board of Review shall be taken within 30 days of the action complained of by filing with the Administrator, in two duplicate copies, a notice of appeal specifying the grounds therefor. A nonrefundable fee in the amount set forth in § 43A-29 hereof to help defray administrative costs shall accompany the notice of appeal. The Administrator shall forthwith transmit one copy of the notice of appeal together with all papers constituting the record upon which the action appealed from was taken to the Board of Review. The Board of Review shall transmit a copy to the Commissioner of the New York State Department of Environmental Conservation for his or her information.
(2)
Action by Board. Within 30 days of receipt of the notice of appeal, the Board of Review shall render a written decision on the appeal, in the form specified in § 43A-16C hereof. Such decision may reverse, affirm or modify, in whole or in part, the action appealed from and may include such order or determination as, in the opinion of the Board of Review, is proper to be made. The failure of the Board of Review to act within such 30 days shall be deemed a denial of the appeal. Within seven days of such decision or the expiration of such period, notice of such decision or failure to act shall be mailed by the Administrator to each appellant and, if different, to the owner(s) of the subject property and to the applicant for any permit which was the subject of the appeal.
D.
Right to grant variance in deciding appeals. In any case where the notice of appeal is accompanied by any application for variance, in accordance with § 43A-18 hereof, the Board of Review shall have the authority to grant, as part of the relief, a variance, but only in strict compliance with each provision of § 43A-18.
E.
Conditions and limitations on rights granted by appeal.
In any case where this chapter imposes conditions and limitations
upon any right, any such right granted by the Board of Review on appeal
shall be subject to such conditions and limitations in the same manner
and to the same extent as if secured without the necessity of an appeal.
A.
Authority. The Board of Appeals may authorize such variances from the provisions of this chapter as will not be contrary to the spirit of this chapter, the public safety and welfare and substantial justice for the applicant and owners and residents of surrounding properties. Variances may be authorized only in accordance with the standards enumerated in Subsection E of this section and then only in compliance with the procedures of Subsection D of this section.
B.
Purpose. The variance procedure is intended to provide
a narrowly circumscribed means by which relief may be granted from
unforeseen particular applications of this chapter which create unnecessary
hardships or practical difficulties. Only when such hardships or difficulties
are not appropriate for remedy pursuant to other provisions of this
chapter is the variance procedure appropriate.
C.
Initiation. An application for a variance may be filed
by the owner of or any other person having a contractual interest
in the subject property.
D.
Procedure.
(1)
Application. Applications for a variance shall be submitted in two duplicate copies to the Administrator. A nonrefundable application fee as set forth in § 43A-29 hereof, to help defray administrative costs and costs of a hearing, shall accompany each application. The application shall be in such form and contain such information and documentation as shall be prescribed from time to time by the Administrator but shall in all instances contain at least the following information and documentation:
(a)
The name and address of the applicant and his
or her interest in the subject property.
(b)
The name and address of the owner, if different
than the applicant, and the owner's signed consent to the filing of
the application.
(c)
The address or location of the subject property.
(d)
The present use and zoning classification of
the subject property.
(e)
A statement of the particular requirements of
this chapter which prevent the proposed use or construction.
(f)
A statement of the characteristics of the subject
property which prevent compliance with the said requirements of this
chapter.
(g)
A statement of the minimum variance of the requirements
of this chapter which would be necessary to permit the proposed use
or construction.
(h)
A statement of the unnecessary hardship or practical difficulty which would result if said particular requirements of this chapter were applied to the subject property. Such statement shall expressly refer to the standards contained in Subsection E of this section and shall state what evidence supports the compliance with such standards.
(i)
In any case where inability to realize a reasonable
return or other economic hardship is alleged or required to be shown,
a statement setting forth the applicant's cost of purchase and date
of purchase and the present value of the subject property; the total
and itemized income produced by and the total and itemized expenses,
including real property taxes, incurred in the use of the subject
property during at least the last two calendar years, a summary of
all details pertaining to any mortgage or other encumbrance of the
subject property and a summary of any attempts to sell the subject
property.
(j)
Such other and further information and documentation
as the Administrator or the Board of Review may deem necessary or
appropriate to full and proper consideration and disposition of the
particular application.
(2)
Action by Administrator. Upon receipt of a completed
application, the Administrator shall refer it to the Board of Review
for decision as hereinafter provided.
(3)
Action by Board of Review. Within 30 days of receipt of a completed application from the Administrator, the Board of Review shall render its decision, granting or denying the variance, granting the variance upon conditions or granting a variance with lesser relief than requested. The decision shall be in the form specified in § 43A-16C hereof. The failure of the Board of Review to act shall be deemed a denial of the variance. Within seven days following such decision or the expiration of such period, the Administrator shall mail notice of such decision or failure to act to each applicant for the variance.
E.
Standards for variance. No variance from the provisions
of this chapter may be granted unless the applicant shall establish
each of the following:
(1)
Carrying out the strict letter of the provisions of
this chapter would create unnecessary hardships or would create practical
difficulty.
(2)
No reasonable, prudent, alternative site is available.
(3)
All responsible means and measures to mitigate adverse
impacts on natural systems and their functions and values have been
incorporated into the activities design at the property owner's expense.
(4)
The development will be reasonably safe from flood
and erosion damage.
(5)
The variance requested is the minimum necessary to
overcome the practical difficulty or unnecessary hardship which was
the basis for the requested variance.
(6)
Where public funds are utilized, the public benefits
must clearly outweigh the long-term adverse effects.
F.
Limitation on variance. No variance of the provisions
of this chapter involving a permit shall be valid for a period longer
than one year unless the permit is issued and the activity is actually
begun within that period and is thereafter diligently pursued to completion.
A.
Second applications without new grounds barred. Whenever
any application, appeal or other request filed pursuant to this chapter
has been finally denied on its merits, a second application, appeal
or other request seeking essentially the same relief, whether or not
in the same form or on the same theory, shall not be brought unless,
in the opinion of the officer or board before which it is brought,
substantial new evidence is available or a mistake of law or fact
significantly affected the prior denial.
B.
New grounds to be stated. Any such second application
shall include a detailed statement of grounds justifying consideration
of such application.
C.
Summary denial. Such application may be denied summarily
on a finding that no grounds appear which warrant a new hearing.
D.
Exception. Any such second application filed more
than two years after the final denial of a prior application shall
be presumed to be based on new grounds and shall be heard on the merits
as though no prior application had been filed.
An appeal from any final decision of the Board
of Review may be taken within 30 days of the filing of such decision
by any person or persons aggrieved by such decision or by any authorized
officer, department, board or bureau or commission of the City in
conformance with Article 78 of the New York State Civil Practice Law
and Rules.
