[Amended 5-12-2008 by L.L. No. 8-2008]
The Zoning Board of Appeals consisting of seven
members, as constituted and empowered under § 267 of Article
16 of the Town Law, on the effective date of this chapter shall be
continued. Vacancies occurring in such Board shall be filled in accordance
with the Town Law. The Zoning Board of Appeals shall have all the
powers and perform all the duties prescribed by statute and by this
chapter.
A.
AREA VARIANCE
USE VARIANCE
Definitions. As used in this article:
The authorization by the Zoning Board of Appeals for the
use of land in a manner which is not allowed by the dimensional or
physical requirements of the applicable zoning regulations.
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.
A.
Appellate jurisdiction.
(1)
Appeals of interpretation.
(a)
The Zoning Board of Appeals shall hear and decide
appeals where it is alleged that there is an error or misinterpretation
in any order, requirement, decision, interpretation, or determination
by an administrative official of the Town of Hamburg charged with
the enforcement of the provisions of this chapter.
(b)
The Zoning Board of Appeals may reverse, modify,
or affirm, in whole or in part, any such appealed order, requirement,
decision, interpretation, or determination appealed from and may make
such order, requirement, decision, interpretation, or determination
as, in its opinion, ought to be made in strictly applying and interpreting
the provisions of this chapter and, for such purposes, shall have
all the powers of the officer from whom the appeal is taken.
(2)
Appeals for use variance.
(a)
The Zoning Board of Appeals, on an appeal from
an order, requirement, decision, interpretation, or determination
of any administrative official charged with the enforcement of this
chapter, shall have the power to grant use variances as defined herein.
(b)
No such use variance shall be granted without
a showing by the applicant that applicable zoning regulations and
restrictions have caused unnecessary hardship. In order to prove such
unnecessary hardship, the applicant shall demonstrate to the Zoning
Board of Appeals that for each and every permitted use under the zoning
regulations for the particular district where the property is located:
[1]
The applicant cannot realize a reasonable return,
provided that lack of return is substantial as demonstrated by competent
financial evidence;
[2]
That the alleged hardship relating to the property
in question is unique, and does not apply to a substantial portion
of the district or neighborhood;
[3]
That the requested use variance, if granted,
will not alter the essential character of the neighborhood; and
[4]
That the alleged hardship has not been self-created.
(c)
The Zoning Board of Appeals, in granting of
use variances, shall grant the minimum variance that it shall deem
necessary and adequate to address the unnecessary hardship proven
by the applicant, and at the same time, preserve and protect the character
of the neighborhood and the health, safety, and welfare of the community.
(3)
Appeals for area variance.
(a)
The Zoning Board of Appeals, on an appeal from
an order, requirement, decision, interpretation, or determination
of any administrative official charged with the enforcement of this
chapter, shall have the power to grant area variances as defined herein.
(b)
In making its determination, the Zoning Board
of Appeals shall take into consideration the benefit to the applicant
if the variance is granted, as weighed against the detriment to the
health, safety, and welfare of the neighborhood or community by such
grant. In making such determination, the Zoning Board of Appeals shall
also consider
[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 Zoning
Board of Appeals, but shall not necessarily preclude the granting
of the area variance.
(c)
The Zoning Board of Appeals, in granting of
area variances, shall grant the minimum variance that it shall deem
necessary and adequate and at the same time, preserve and protect
the character of the neighborhood and the health, safety, and welfare
of the community.
(4)
The following types of cases shall be construed as
eligible for consideration within the meaning of this chapter:
(a)
Unusual size or shape of lot
[1]
Where, by reason of the exceptional narrowness,
shallowness, or shape of a specific piece of property at the time
of the effective date of this chapter or by reason of exceptional
topographic conditions or other exceptional physical difficulties
in the development of such piece of property, the literal enforcement
of the requirements of this chapter pertaining to yards or other space
relationships would result in peculiar unnecessary hardship upon the
owner of such property.
(b)
Adjacent nonconforming uses.
[1]
Where, adjacent to a lot on both sides in the
case of an interior lot, or on both the side and rear of the lot or
on all other corners of an intersection in the case of a corner lot,
there are buildings or uses which do not conform to regulations prescribed
in this chapter for the district in which said lot is located.
[2]
In considering such appeal, the Zoning Board
of Appeals shall give due regard to the nature and conditions of all
adjacent uses and structures, and, in granting any such appeal, the
Zoning Board of Appeals may impose special requirements and conditions
for the protection of conforming uses and the ultimate removal of
nonconforming uses and structures.
[3]
In any case, the variance as to the use or uses
permitted on any lot, whether principal or accessory, shall not allow
a use or combination of uses more intensive or less restricted than
any use which is legally existing on premises immediately adjacent
on either side of said lot, or of premises on any corner of the intersection
in the case of a corner lot.
(c)
Nonconforming building.
[1]
Where the principal building on any premises was originally lawfully erected and intended for a principal use and such building would now be a nonconforming use in the district in which located and the right to continue or reestablish such nonconforming use in such building is denied by the provisions of Article XLII of this Zoning Code, and where the literal enforcement of such provisions would result in unnecessary hardship upon the owner of such property. In considering such appeal, the Zoning Board of Appeals shall give due regard to the age and condition of such building and its adaptability for or convertibility to a conforming use.
[2]
In approving any such appeal, the Zoning Board
of Appeals shall specify the time limit during which such grant of
a variance shall be effective, which time limit shall in no case exceed
the estimated useful life of such building.
[3]
In case the building has been condemned by the
Building Inspector and ordered to be demolished, the Zoning Board
of Appeals shall not grant any such variance.
(5)
Any other case involving practical difficulties or
unnecessary hardship in the way of carrying out any provision of this
chapter pursuant to and in accord with the intent and purpose of Subdivision
5 of § 267 of Article 16 of the Town Law.
(a)
In granting of both use variances and area variances,
the Zoning Board of Appeals may vary or modify the provisions of this
chapter so that the spirit of the law shall be observed, public safety
secured, and substantial justice done.
(b)
Toward this end, the Zoning Board of Appeals
shall have the authority to impose such reasonable conditions and
restrictions as are directly related to and incidental to the proposed
use of the property. Such conditions shall be consistent with the
spirit and intent of the Zoning Code or local law and shall be imposed
for the purpose of minimizing any adverse impact such variance may
have on the neighborhood or community.
B.
Special permits.
[Amended 11-7-2016 by L.L. No. 7-2016]
C.
Modification of regulations.
[Amended 6-22-2015 by L.L. No. 6-2015]
(1)
Exception from exterior side yard requirements. The
Zoning Board of Appeals may modify the exterior side yard requirements
for principal buildings on deep corner lots, provided that the following
findings are made:
(2)
Exception from fence height limitations
(a)
The Zoning Board of Appeals may permit a fence
up to eight feet in height in any rear yard, not a front yard equivalent,
or in any side yard, not a required side yard, provided that such
fence is at least 10 feet from any property line and that the following
findings are made:
A.
General provisions.
(1)
The Zoning Board of Appeals, consistent with this
chapter, may adopt rules of conduct and procedure.
B.
Filing appeals
(1)
An appeal to the Zoning Board of Appeals from any
order, requirement, decision, interpretation, or determination of
any administrative official charged with the enforcement of this chapter
may be taken by any person aggrieved or by any officer, department,
division, board, or bureau of the Town of Hamburg.
(2)
Such appeal shall be filed in the office of such administrative
official charged with the enforcement of this chapter within five
business days from the day it is rendered, and shall be a public record.
Alternately, the Town Board may, by resolution, require that such
filings instead be made in the Town Clerk's office.
(3)
Such appeal shall be taken, within 60 days after the
filing of any order, requirement, decision, interpretation, or determination
of the administrative official charged with the enforcement of this
chapter by filing with such official and with the Zoning Board of
Appeals a notice of appeal, specifying the grounds thereof and the
relief sought. The official from whom the appeal is taken shall forthwith
transmit to the Board all the papers constituting the record upon
which the action appealed from was taken.
C.
Filing applications.
(1)
An application for any matter upon which the Zoning
Board of Appeals is required to pass may be made to the Building Inspector
by the owner, the tenant of the property, or a duly authorized agent
for which such appeal or application is sought.
D.
Stay of proceedings.
(1)
Any appeal to the Zoning Board of Appeals shall stay
all proceedings in furtherance of the action appealed from, except
as otherwise provided in Subdivision 4 of § 267 of the Town
Law.
E.
Hearing on appeal.
(1)
The Zoning Board of Appeals shall fix a reasonable
time for the hearing of the appeal or other matter referred to it
and give public notice public notice thereof in accordance with the
provisions of Subdivision 5 of § 267 of the Town Law at
least five days prior to the date thereof.
(2)
The cost of sending or publishing any notices relating
to such appeal, or a reasonable fee relating thereto, shall be borne
by the appealing party and shall be paid to the Board prior to the
hearing of such appeal. Upon the hearing, any party may appear in
person, or by agent or attorney.
(3)
The Zoning Board of Appeals shall decide upon the
appeal within 62 days after the conduct of said hearing. The time
within which the Zoning Board of Appeals must render its decision
may be extended by mutual consent of the applicant and the Board.
F.
Meetings, witnesses, and records.
(1)
Meetings of the Zoning Board of Appeals shall be held
at the call of the Chairman and at such other times as the Board may
determine. All meetings shall be open to the public.
(2)
The Chairman of the Zoning Board of Appeals or, in
his absence, the Acting Chairman, may administer oaths and compel
the attendance of witnesses.
(3)
The Zoning Board of Appeals shall keep minutes of
its proceedings, showing the vote of each member upon every question
or, if absent or failing to vote, indicating such fact, and shall
keep records of its examinations and other official action. Every
rule and regulation, every amendment or repeal thereof, and every
order, requirement, decision, interpretation, or determination of
the Zoning Board of Appeals shall immediately be filed in the office
of the Town Clerk and shall be a public record.
G.
Decisions of the Zoning Board of Appeals
(1)
The concurring vote of a majority of the members of
the Zoning Board of Appeals, as fully constituted regardless of vacancies
or absences, shall be necessary to reverse any order, requirement,
decision, interpretation, or determination of the Building Inspector
or to decide in favor of the applicant any matter upon which it is
required to pass under this chapter or to effect any variation in
this chapter.
(2)
Every decision of the Zoning Board of Appeals shall
be by resolution. Where findings are required, the decision shall
set forth each required finding, supported by substantial evidence
or other data considered by the Zoning Board of Appeals in each specific
case, or, in the case of denial, the decision shall include the findings
which are not satisfied.
(3)
If an affirmative vote of a majority of all members of the Zoning Board of Appeals is not attained on a motion or resolution to grant a variance or reverse any order, requirement, decision, interpretation, or determination of the administrative official charged with enforcement of this chapter within the time allowed by § 280-311E(3), the appeal is denied. The Board may amend that failed motion or resolution and vote on the amended motion or resolution within the time allowed without being subject to the rehearing process.
(4)
The decision of the Zoning Board of Appeals on the
appeal shall be filed in the office of the Town Clerk within five
business days after the day such decision is rendered, and a copy
thereof mailed to the applicant.
H.
Compliance with SEQR.
The Zoning Board of Appeals shall comply with the provisions
of the State Environmental Quality Review Act (SEQR) under Article
8 of the Environmental Conservation Law and its implementing regulations
as codified in 6 NYCRR 617. The ZBA is subject to the New York SEQR
law and for those actions not meeting the Type II designation (not
subject to SEQR) completed prior to the ZBA taking an action. Typically,
the lead agency shall be determined and designated by mutual agreement
of all involved agencies within 30 calendar days of the EAF being
mailed, as provided by Section 617.6 of Title 6 of NYCRR. In all cases,
the lead agency shall be the agency, board or body having final authority
to approve or undertake the action. When projects require multiple
approvals from the Town's Zoning, Planning and Town Boards, the Town
Board of the Town of Hamburg shall be the lead agency. When projects
require multiple approvals from the Town's Zoning and Planning Boards,
the Planning Board of the Town of Hamburg shall be the lead agency.
[Amended 5-8-2023 by L.L. No. 6-2023]
I.
Violation of conditions or restrictions.
(1)
Failure to comply with any condition or restriction
prescribed by the Zoning Board of Appeals in approving any appeal
for a variance or application for a special permit or a modification
of regulations shall constitute a violation. Such violation may constitute
the basis for revocation of a variance, special permit, or modification,
or for penalties and other applicable remedies.
J.
Lapse of authorization.
(1)
Lapse of authorization. Any variance, special use
permit or modification of regulations authorized by the Zoning Board
of Appeals (ZBA) shall be automatically revoked, unless a building
permit conforming to all of the conditions and requirements established
by the Zoning Board of Appeals is obtained within six months of the
date of approval by the Zoning Board of Appeals. All extensions will
be coordinated with the Planning Board, if site plan approval is required.
[Amended 8-9-2010 by L.L. No. 6-2010; 6-22-2015 by L.L. No. 6-2015; 8-3-2020 by L.L. No. 3-2020]
