No building or structure shall be located, erected, moved, remodeled or structurally altered until a permit for such building location, erection, removal or structural alteration shall have been issued by the Town Building Official in accordance with the provisions hereof and in accordance with the provisions of the Building Code Administration and Lot Control Ordinance. Every application for such a permit shall be accompanied by a map, in duplicate, drawn to scale showing the dimensions of the plot to be built upon, the measurements and size and location of the building or structure on the plot, the size and location of other buildings or structures on the plot and such other information as may be required by the Building Official.
It shall be unlawful to use or permit the use of any building or structure hereinafter located, erected or structurally altered or any premises altered or converted wholly or in part in its use until a certificate of occupancy has been issued by the Building Official to the effect that the building, structure or premises so located, erected or structurally altered and the proposed use or uses thereof conform to all applicable Town ordinances. Such certificate shall be issued in accordance with the provisions of the Building Code Administration and Lot Control Ordinance.
In addition thereto, where a new building or use is not involved, upon written application for a certificate of occupancy by the property owner or his duly authorized agent, the Building Official or his designee shall inspect any building, other structure or tract of land existing on the effective date of this chapter and shall issue a certificate of occupancy therefor, certifying:
The use of the building, other structure or tract of land.
Whether such use conforms to all the provisions of this chapter or the chapter as existing at the time the use was established or that a variance in use has been granted therefor. However, no certificate of occupancy shall be issued if there are any pending violations of law or orders of the Building Official, the Board of Appeals or the Town Board with regard to the subject members.
The Building Official may revoke summarily any certificate of occupancy issued through the fraud or misrepresentation of the owner or his agent, contractor or employee.
[Amended 8-10-1978; 6-17-1993]
The Board of Appeals heretofore created is hereby continued, consisting of five members appointed by the Town Board of the Town of Webster. The term of each member shall be five years.
No action shall be taken by the Board of Appeals in any case until after public notice and hearing. Proper notice of a hearing before the Board shall be given by a legal notice published in the official newspaper of the Town of Webster at least five days before the date set for a public hearing and written notice mailed to the applicant or his agent at the address given in the application for appeal. The applicant shall be responsible for notifying, by first class mail, all property owners of record within 100 feet of the outside perimeter or boundary line of property involved in the preliminary application of the time, date and place of such public hearing by mail least 10 days prior to such hearing. Notice shall be deemed to have been given if mailed to the property owner at the tax billing address listed on the property records of the Town Assessor or at the property address. At least seven days prior to such hearing, the applicant shall file with the Zoning Board his/her affidavit of mailing such notices. Failure to receive such notice shall not he deemed a jurisdictional defect of the Zoning Board.
The presence of three members shall constitute a quorum, and the concurring vote of a majority of the Board of Appeals shall be necessary to reverse or modify any order, requirement, decision, interpretation or determination made by any administrative or enforcement official or to decide in favor of the applicant on any matter upon which the Board is required to pass or to effect any variation in the requirements of the ordinance; subject, however, to the requirements of §§ 239-l and 239-m of the General Municipal Law.
Appeals for interpretation. The Board of Appeals shall hear and decide appeals where it is alleged that there is an error or misinterpretation in an order, requirement, decision or determination by any administrative official of the Town of Webster charged with the enforcement of the provisions of this chapter. The Board of Appeals may reverse, modify or affirm, in whole or in part, any such appealed order, requirement, decision or determination appealed from and may make such order, requirement, decision 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.
Appeals for variance.
The Board of Appeals may grant a use variance upon a showing by the applicant that the 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 that:
The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence.
The alleged hardship relating to the property in question is unique and does not apply to a substantial portion of the district or neighborhood.
The requested use variance, if granted, will not alter the essential character of the neighborhood.
The alleged hardship has not been self-created.
The Board of Appeals, in granting a use variance, 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.
Area variances may be considered where dimensional requirements of this chapter cannot be reasonably met. 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. The Board of Appeals shall consider whether:
An undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by granting of the area variance;
The benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;
The requested area variance is substantial;
The proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and
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.
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.
Imposition of conditions. The Board of Appeals shall, in the granting of both use variances and area variances, have the authority to impose such 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 or local law and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.
General provisions. The Board of Appeals, consistent with law and ordinance, may adopt rules of conduct and procedure.
Filing appeals. An appeal to the Board of Appeals from any ruling of any building official charged with the enforcement of this chapter may be taken by any person or persons aggrieved or by any officer, department, board or bureau of the Town.
The person or persons so aggrieved must file a notice of appeal within 60 days after the filing of any order, requirement, decision, interpretation or determination of the Building Official charged with the enforcement of the ordinance or local law. The notice of appeal must specify the grounds for the appeal and the relief sought. The building official from whom the appeal is taken shall transmit to the Board, upon payment of the required fee, all papers constituting the record upon which the action appealed from was taken.
The building officials shall process all applications before the Board of Appeals and shall provide such assistance and information as the Board shall request.
All applications to the Board of Appeals shall be in writing upon forms furnished by the Town. The Board of Appeals requests that an instrument survey accompany all applications; however, a tape location map may be accepted at the Board's discretion. The applicant shall provide such additional information, documents or evidence as shall be required by the Building Officials to support the appeal to the Board of Appeals, such information, documents, maps or other evidence, together with the denial, to be reproduced in sufficient copies for the Board of Appeals. All required documents, maps and information shall be filed with the building officials at the time of the filing of the appeal. The Board of Appeals may require attendance and testimony of the building officials and the Town Engineer at its discretion. The attendance of the applicant or his agent is required at all hearings, and without such attendance the Board of Appeals may dismiss or adjourn the application at its discretion.
The Board of Appeals shall decide upon the appeal within 62 days after the conduct of the public hearing.
Expiration of variance. It shall be deemed a condition of each variance granted that meaningful construction or actual use must be commenced within one year of the date the variance is granted.
Reapplication. An application for any variance or permit which has been denied by the Board of Appeals may not be resubmitted to the Board of Appeals for a period of one year from the date of such decision. The Zoning Board of Appeals may, upon the presentation of new facts, entertain a reapplication before the expiration of the aforesaid one-year period, but only upon a unanimous vote of all the members of the Board of Appeals then present at such reapplication. Prior to the hearing of such a reapplication, all notices required to be given at an original hearing must also be given.
All applications for building permits shall be made in writing to the Building Official, who shall either issue a building permit as provided in the Building Code Administration and Lot Control Ordinance or deny the same, in writing, with explanation for such denial. Within 10 days after receipt of such written denial and at least 14 days prior to the requested hearing date, upon payment of the required fee, any such applicant who is the owner or authorized agent of the owner of the property involved may file a written appeal to the Board of Appeals for a variance, interpretation of the chapter or rescission or modification of the decision of the Building Official as authorized hereunder.
The Building Official shall process all applications before the Board of Appeals and shall provide such assistance and information as the Board shall request.
All applications to the Board of Appeals shall be in writing upon forms furnished by the Town. A tape location map shall accompany every application, and the Board of Appeals may require the applicant to provide an instrument survey in its discretion of where boundary lines are essential or in dispute. The applicant shall provide such additional information, documents or evidence as shall be required by the Building Official to support the appeal to the Board of Appeals, such information, documents, maps or other evidence, together with the denial, to be reproduced in seven copies for the Board of Appeals. All required documents, maps and information shall be filed with the Building Official at the time of the filing of the appeal. The Board of Appeals may require attendance and testimony of the Building Official and the Town Engineer in its discretion. The attendance of the applicant or his agent is required at all hearings, and without such attendance the Board of Appeals may adjourn or dismiss the application in its discretion.
Special setback allowances.
The Town Board has become aware of the increased use of instrument surveys in real estate transactions, replacing the use of less accurate tape location maps. Many surveys now reveal front, side and rear setback deficiencies which, in the past, could only be cured by obtaining a variance from the Zoning Board of Appeals. In most cases the setback deficiencies were caused by builder error or surveyor error or other factors beyond the control of the property owner. In order to avoid the expenses to be incurred by a property owner in obtaining an area variance, the Town Board endorses the following policy: Where a structure has been completed as defined by the issuance of a certificate of occupancy, the setback requirements for such structure may be reduced up to a maximum of six inches without the requirement of issuance of an area variance from the Zoning Board of Appeals. The setback of the structure and lot shall be considered in sufficient compliance with the Zoning Ordinance as long as the difference between the required setback and the setback of the structure is not more than six inches. If the structure is otherwise in sufficient compliance with all other governmental codes, statutes and regulations, upon application by the property owner, approval of the Chairman of the Zoning Board of Appeals and verification by the Commissioner of Public Works or his assigns within 10 days after application, a statement shall be issued by the Building Department that the Town of Webster shall not require further corrective measures to rectify such dimensional discrepancy nor pursue enforcement of such violation. If the difference between the required setback and the setback of the structure exceeds six inches, the property owner must obtain an area variance from the Zoning Board of Appeals.
[Added 11-5-2009 by L.L. No. 3-2009]
Purpose. Special permit uses are those uses having some special impact or uniqueness which requires a careful review of their location, design, configuration and special impact to determine, against fixed prescribed standards, the desirability of permitting their establishment on any given site. They are uses which may or may not be appropriate in a particular location depending on a weighing, in each case, of the need and benefit against the local impact and effect.
Initiation. An application for a special permit may be filed by the owner of, or the person having a contractual interest in, the subject property. Such application shall be on forms provided by the Town of Webster Building Department and be accompanied by a nonrefundable fee, as established by the Town Board. Within 60 days of receipt of a complete application, the Zoning Board of Appeals shall hold a public hearing. Following the public hearing and a determination under SEQRA, the Board shall render a decision on the matter within 60 days, unless the time frame has been extended by mutual agreement.
Effect of permit. A special permit issued in accordance with the provisions of this chapter shall authorize only the special permit use for which the permit is granted. Any use for which a special permit is granted shall be deemed a use permitted on the property upon which it is located, except that for any additional use or enlargement of such use, a separate use permit shall be required for each addition or enlargement. The special permit may include reasonable conditions related to the proposed use, which the Zoning Board of Appeals determines to be necessary or appropriate to ensure that the applicable standards and safeguards set forth in this section for the use can be and will be met and/or adhered to. A special permit shall be valid for a period of one year to five years, as determined by the Zoning Board of Appeals. Failure to exercise, maintain or continue a use which has been granted a special permit for a period of one year shall render such permit void.
Standards for special permits. Before granting approval to any special permit use, the Zoning Board of Appeals shall determine whether the proposed special use will, among other things, satisfy the following considerations:
The use will not prevent the orderly and reasonable use of adjacent properties or of properties in adjacent use districts.
The public health, safety, general welfare or order of the Town will not be adversely affected by the proposed use in its location.
The use will be in general harmony with and promote the general purposes and intent of the most recent Comprehensive Plan of the Town and the Zoning Ordinance (Chapter 225).
The proposed use will not interfere with the preservation of the general character of the neighborhood in which such building is to be placed or use is to be conducted and that the proposed use will, in fact, be compatible with its surroundings and with the character of the neighborhood and of the community in general, particularly with regard to visibility, scale and overall appearance.
The physical characteristics and topography of the proposed site make it suitable for the proposed special use.
The proposed special use provides appropriate landscaping and/or other forms of buffering to protect surrounding land uses.
The property has sufficient, appropriate and adequate area for the use, as well as reasonably anticipated operation thereof.
Access to facilities is adequate for the estimated traffic generated by the proposed use on public streets and sidewalks so as to assure the public safety and to avoid traffic congestion.
Adequate parking and internal traffic circulation can be accommodated on the property in compliance with other sections of the Code, taking into account adequate buffering and landscaping.
Adequate facilities exist or can be integrated into the site development to properly deal with stormwater runoff, sanitary sewers, fire protection, electrical power needs, refuse or other waste that may be generated, odors, noise or lights which may go beyond property boundaries.
The natural characteristics of the site are such that the proposed use may be introduced on the property without undue disturbance or disruption of important natural features, systems or processes and without negative impact to groundwater and surface waters on and off the site.
The proposed use can and will comply with all provisions of this chapter and of the Code which are applicable to it and can meet every other applicable federal, state, county and local law, ordinance, rule or regulation.
Notice of application. All applicants for special permits shall be required to post a Town-provided sign in a publicly conspicuous location on or in front of the front property line of the property affected. Said sign shall notify the public of a pending application and hearing and shall be posted not less than 10 days prior to and up to the date of the hearing. The Town shall advertise the application in the official newspaper of the Town, as required by § 274-b of the Town Law.
Revocation of special permit.
A use authorized under this section by special permit may be revoked by the Zoning Board of Appeals if it has been determined, after a public hearing, that there has been a material failure of compliance with any one of the terms, conditions, limitations or requirements imposed by said permit.
Said public hearing shall be held only after the permit grantee has been notified, as hereinafter described, by the Zoning Official. Notice of the violations or of failure of compliance with any one of the terms, conditions, limitations or requirements imposed by said permit, and of the date, place and time of the public hearing, shall be mailed to the special permit grantee by certified mail, return receipt requested, directed to the last known address of the permit grantee.
At least 10 days before said public hearing, a legal notice of said hearing shall be published in a newspaper of general circulation in the Town.
Editor's Note: Former § 225-110, Special use permits, was repealed 6-17-1993.
Every application, petition or request submitted for a variance, amendment, change of zoning, planned unit development or site plan approval pursuant to this chapter shall state the name, residence and the nature and extent of the interest of any officer or employee of the State of New York, County of Monroe or Town of Webster having an interest in the person, partnership, association or corporation making such application, petition or request or owning an interest in the property affected by the application. Officers and employees having an interest shall be those described in § 809 of the General Municipal Law of the State of New York.
The Town Board may from time to time, on its own motion or on petition or on recommendation of the Planning Board, amend, supplement, change, modify or repeal this chapter pursuant to the provisions of the Town Law and General Municipal Law applicable thereto. Every application for rezoning shall be referred to the Planning Board, which shall recommend approval or disapproval prior to the public hearing thereon.
[Amended 8-10-1978; 6-17-1993]
Violations and penalties.
Any violation of this chapter, or of any order, requirement, decision or determination issued by the Commissioner of Public Works, his agent or designee, hereinafter called the "Zoning Official," pursuant to this chapter, is hereby declared to be an offense punishable by a fine not exceeding $350 or imprisonment for a period not to exceed six months, or both, upon conviction for a first offense; upon conviction for a second offense, both of which offenses were committed within a period of five years, punishable by a fine not less than $350 nor more than $700 or imprisonment for a period not to exceed six months, or both; and upon conviction for a third or subsequent offense, all of which offenses were committed within a period of five years, punishable by a fine of not less than $700 nor more than $1,000 or imprisonment for period not to exceed six months, or both. However, for the purpose of conferring jurisdiction upon courts and judicial officers generally, violations of this chapter, or of any order, requirement, decision or determination issued by the Zoning Official pursuant to this chapter, shall be deemed misdemeanors, and for such purpose only all provisions of law relating to misdemeanors shall apply to such violations. Each week's continued violation shall constitute a separate additional violation.
In addition to the penalties provided above, the Town Board may also maintain an action or proceeding to prevent, correct or restrain any violation of this ordinance.
Any owner, general agent or contractor of a building, premises or part thereof where a violation has been committed or does exist shall be guilty of such an offense.
Any agent, contractor, architect, builder or corporation or other person who commits, takes part in or assists in a violation shall be guilty of such an offense.
Complaints. Whenever a violation of this chapter occurs, any person may file a complaint in regard thereto. All such complaints must be in writing and shall be filed with the Zoning Official, who shall properly record such complaint and immediately investigate. Complaints otherwise given to the Zoning Official may or may not be acted upon.