Albion City Zoning Code
ARTICLE VIII
Administration and Enforcement
§ 103-64 Enforcement.
The duty of administering and enforcing the provisions of this chapter is hereby conferred upon the Code Enforcement Officer (CEO), who shall be appointed by the Town Board and shall carry out any directives from the Board relative to the duties of the position set forth below. The CEO shall receive such compensation as the Town Board shall determine.
§ 103-65 Duties and procedures of the Code Enforcement Officer.
A.
It shall be the duty of the Code Enforcement Officer or his duly authorized assistants to cause any plans, buildings or premises to be examined or inspected to determine that they are not in violation of the provisions of this chapter. In the fulfillment of their duties, the Code Enforcement Officer or his authorized assistants may enter any premises or building during reasonable hours in the course of his duties in accordance with state law after due written notice has been given.
B.
If the Code Enforcement Officer shall find that any of the provisions of this chapter are being violated, he shall notify, in writing, the person responsible for such violations, indicating the nature of the violation and order the action to correct it. In his efforts to attain compliance the Code Enforcement Officer shall have the authority to order discontinuance of illegal uses of land, buildings or structures; removal of illegal buildings or structures, or of illegal additions, alterations or structural changes; stop work; or, discontinuance of any illegal work being done. On the serving of notice by the Code Enforcement Officer to the owner of any property violating any of the provisions of this chapter, the certificate of compliance for such building or use shall be held null and void. A new certificate of compliance shall be required for any further use of such building or premises.
C.
It shall be the duty of the Code Enforcement Officer to issue permits and certificates to applicants who fully comply with the provisions of this chapter.
D.
The Code Enforcement Officer shall maintain a permanent and current record of all applications for permits and certificates, his action upon same, any conditions relating thereto, and any other matters considered and action taken by him. Such records shall form a part of the records of his office and shall be available for use by Town officials and for inspection by the public. The records to be maintained shall include the following:
(1)
Application file. An individual permanent file for each application for a permit or certificate provided for by this chapter shall be established at the time the application is made. Said file shall contain one copy of the application and all supporting documents and plans; notations regarding pertinent dates and fees and the like; as appropriate, one copy of any resolutions or actions of the Town Board, Planning Board or Zoning Board of Appeals in acting on the application; and the date the permit or certificate applied for was issued or denied.
(2)
Quarterly report. The Code Enforcement Officer shall prepare a quarterly report for the Town Board. Said report shall cite all actions taken by the Code Enforcement Officer, including all referrals made by him; all permits and certificates issued and denied; all complaints of violation received and all violations found by him, and the action taken by him consequent thereon; and the time spent and mileage used.
E.
Whenever the Code Enforcement Officer denies a permit or certificate he shall, in writing, inform the applicant of the specific reasons for denial and instruct the applicant on the proper methods to apply for relief.
F.
The Code Enforcement Officer shall maintain a current list and a map of nonconforming uses to determine if discontinuance or destruction, or change in use or vacancy has taken place.
G.
The Code Enforcement Officer shall maintain a current list and a map showing the variances and special use permits to determine if the conditions and safeguards placed on variances and special use permits are being complied with.
H.
Upon written direction from the Town Planning Board, the Code Enforcement Officer shall issue special use permits. Upon approval of a variance by the Zoning Board of Appeals, the Code Enforcement Officer shall be empowered to issue the necessary permits with the specific conditions to be imposed.
I.
The Code Enforcement Officer shall be authorized and empowered to issue appearance tickets pursuant to the New York State Criminal Procedure Law.
§ 103-66 Creation and organization of Planning Board; rules and regulations.
[Amended 3-8-2021 by L.L. No. 2-2021]
A.
Pursuant to Town Law § 271, the Town Board hereby creates a Planning Board consisting of five members.
B.
The Town Board may designate a Planning Board Chairperson. In the absence of such a designation by the Town Board, the Planning Board may designate a Chairperson from its own members.
C.
The Town Board does hereby establish two alternate Planning Board member positions for purposes of substituting for a Planning Board member in the event such member is unable to participate due to a conflict of interest. Such alternate members of the Planning Board shall be appointed on an as-needed basis by resolution of the Town Board for a term established by the Town Board. The Planning Board Chairperson shall designate an alternate member appointed by the Town Board to substitute for a member when such member is unable to participate because of a conflict of interest on an application or matter before the Board.
§ 103-67 Powers and duties of Planning Board.
The Planning Board shall have the following powers and duties:
A.
To review and recommend revisions to the Comprehensive Plan for the development of the Town as provided under § 272-a of Town Law and/or Town Board resolution.
B.
To review and comment on all proposed zoning amendments and to make investigations, maps, reports and recommendations relating to the planning and development of the Town as it deems desirable. This shall include but not be limited to changes in boundaries of districts, recommended changes in the provisions of this chapter, other land use and development matters of importance to the Planning Board, and to act on any matter lawfully referred to it by the Town Board.
C.
To review site plans as authorized by New York State Town Law and prescribed in Article X of this chapter.
E.
To review proposals to approve or disapprove the laying out, closing off, abandonment or changes in lines of streets, highways and public areas and to make recommendations to the Town Board.
F.
To review, act on or provide advisory reports as specified by this chapter.
G.
To make referrals to other Town Departments, Boards and/or officials to request advisory opinions to assist the Planning Board in making decisions which affect the development of the Town.
H.
All such powers and duties as are conferred upon Town Planning Boards and subject to the limitations set forth in §§ 272, 272-a, 274, 274-a, 275, 276, 277, 278, and 281 of the New York State Town Law, as the same may be amended, modified, or changed from time to time,[1] or any sections subsequently adopted pertaining to Planning Boards.
[1]
Editor's Note: Several of these sections of the Town Law were repealed, renumbered and/or amended by L.1992, c. 727.
§ 103-68 Planning Board office.
The office of the Town Clerk shall be the office of the Planning Board. Every rule, regulation, amendment or repeal thereof and every order, requirement, decision or determination of the Board shall immediately be filed in said office as required by the Town Law of the State of New York. The Planning Board shall keep minutes of its proceedings, showing the vote, indicating such fact, and shall keep records of its environmental reviews and determination, its examinations and other official actions.
§ 103-69 Creation and organization of Zoning Board of Appeals; rules and regulations.
[Amended 3-8-2021 by L.L. No. 3-2021]
A.
Pursuant to Town Law § 271, the Town Board hereby creates the Zoning Board of Appeals, ZBA, consisting of five members.
B.
The Town Board may designate a ZBA Chairperson. In the absence of such a designation by the Town Board, the ZBA may designate a Chairperson from its own members.
C.
The Town Board does hereby establish two alternate ZBA member positions for purposes of substituting for a ZBA member in the event such member is unable to participate due to a conflict of interest. Such alternate members of the ZBA shall be appointed on an as-needed basis by resolution of the Town Board for a term established by the Town Board. The ZBA Chairperson shall designate an alternate member appointed by the Town Board to substitute for a member when such member is unable to participate because of a conflict of interest on an application or matter before the Board.
§ 103-70 Powers and duties of Zoning Board of Appeals.
The Board of Appeals shall have all the powers and duties prescribed by Chapter 62, § 267 et seq., of the Town Law of the State of New York and by this chapter which are more particularly specified as follows:
A.
Appeals for administrative review, interpretations and determinations.
(1)
The Zoning Board of Appeals shall hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative officer or body in the enforcement of this chapter.
(2)
The Zoning Board of Appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and shall make such order, requirement, decision or determination as in its opinion ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken.
(3)
The Zoning Board of Appeals shall hear and decide on interpretive matters where the provisions of this chapter, including the determination of exact district boundaries, are not clear.
B.
Variances.
(1)
The Board of Appeals is empowered to authorize, upon appeal in specific cases, such variance from the terms of this chapter as will not be contrary to the public interest where, owing to conditions peculiar to the property, and not the result of the action of the applicant, a literal enforcement of the provisions herein would result in unnecessary hardship or practical difficulties.
(2)
As used herein, a variance may be authorized for height, area, size of structure, size of yards and open spaces or establishment or expansion of a use otherwise prohibited.
(3)
A variance shall not be granted solely because of the presence of nonconformities in the zoning district or uses in other zoning districts.
(4)
In granting any variance, the Board of Appeals shall prescribe any conditions that it deems to be necessary or desirable.
(5)
Variances granted shall be the minimum which would accomplish the purpose of providing for reasonable use of land or buildings.
(6)
Variances granted shall be in harmony with the general purpose and intent of this chapter and shall not be injurious to the neighborhood or otherwise detrimental to the public welfare.
§ 103-71 Permitted actions on area or use variances.
A.
Area variances.
(1)
The Zoning Board of Appeals shall have the power, upon an appeal from a decision or determination of the administrative official charged with the enforcement of such ordinance or local law, or in conjunction with an application for site plan review or subdivision approval, to grant area variances as defined herein.
(2)
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 Board shall also consider:
(a)
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;
(b)
Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;
(c)
Whether the requested area variance is substantial;
(d)
Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and
(e)
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.
(3)
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.
B.
Use variances.
(1)
The Board of Appeals, on appeal from the decision or determination of the administrative official charged with the enforcement of this chapter, shall have the power to grant use variances, as defined herein.
(2)
No such use variance shall be granted by a Board of Appeals without 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 Board of Appeals that, for each and every permitted use under the zoning regulations for the particular district where the property is located:
(a)
The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;
(b)
The alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood;
(c)
The requested use variance, if granted, will not alter the essential character of the neighborhood; and
(d)
The alleged hardship has not been self-created.
(3)
The Board of Appeals, in the 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.
Imposition of conditions. The 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 this chapter, and shall be imposed for the purpose of minimizing any adverse impact that such variance may have on the neighborhood or community.
§ 103-72 Procedures for appeals and variances.
A.
Variance procedures.
(1)
The applicant may arrange an informal discussion with the Board of Appeals to determine any and all of the data to be included in the application.
(2)
All applications for variances shall be made in quadruplicate to the Code Enforcement Officer (CEO) on forms provided by the CEO and shall be accompanied by plans and supporting documents to sufficiently describe the proposal. All applications shall refer to the specific provision of the law involved and establish the details of why the variance should be granted. The Board of Appeals may request additional information it deems necessary in order to act on the application.
(3)
The CEO, after determining that an application is in proper form, shall transmit copies of the application and all supporting documents to the Board of Appeals for action thereon.
(4)
Use variance within Agricultural District. Where an application for a use variance involves land lying within certain distances prescribed in § 283-a of Town Law, an agricultural data statement shall be prepared and proper notice thereof given to all affected property owners.
(5)
Public hearing on appeal. The Board of Appeals shall fix a reasonable time for the public hearing of the appeal, variance, or other matter referred to it and give public notice of such hearing by publication in a paper of general circulation in the Town at least five days prior to the date thereof. 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 of Appeals prior to the hearing of such appeal. Upon the hearing, any party may appear in person, or by agent or attorney.
(6)
Additional public notice. The applicant shall place one sign on the property for which an appeal or variance is requested. Said sign shall be provided by the Code Enforcement Officer at the time the appeal or application for variance is filed. The sign shall be placed in a location which is easily read from a public street. The sign shall specify the date, time and place of the public hearing and a telephone number to call for more specific information. Such sign shall be placed on the site not less than five days prior to the public hearing and shall be brought to the hearing by the applicant or his designated representative.
(7)
Referral to County Planning Board. A copy of the complete variance application and supporting documents shall also be transmitted to the County Planning Board for review when required either under Article 12-B, §§ 239-l and 239-m of the General Municipal Law, or § 283-a of the New York State Town Law.
(8)
Time of decision. The Board of Appeals, providing SEQR has been complied with, shall decide upon the appeal or variance within 62 days after the conduct of said hearing. The time within which the Board of Appeals must render its decision may be extended by mutual consent of the applicant and the Board.
(9)
Filing of decision and notice. The decision of the Board of Appeals on the appeal or variance 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.
(10)
The CEO shall, upon receipt of the notice of approval and upon application by the applicant, issue the appropriate zoning permit or such other approval permitted by the variance, subject to all conditions imposed by the Zoning Board of Appeals.
B.
Appeals procedures.
(1)
An appeal, including any request for an interpretation or determination, and specifying the grounds for the appeal, shall be filed with the officer, or body, from whom the appeal is taken and with the Board of Appeals. All appeals and applications shall be made to the Board of Appeals within 60 days of the date on which the order, requirement, decision or determination appealed from was rendered and shall be on forms prescribed by the Board.
(2)
Such appeal may be taken by any person aggrieved or by an officer, department, board or bureau of the Town.
(3)
The concurring vote of a majority of the members of the Board of Appeals shall be necessary to reverse any order, requirement, decision or determination of any such administrative official.
(4)
The officer from whom the appeal is taken shall, within 30 days of the filing of the appeal, transmit all papers constituting the record upon which the appeal is taken to the Board of Appeals.
(5)
An appeal stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the Board of Appeals after the notice of appeal shall have been filed with him, that, by reason of facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Board of Appeals or by a court of record, on application, on notice to the officer from whom the appeal is taken and on due cause shown.
(6)
If the Board of Appeals determines that a public hearing is necessary, the Board of Appeals shall fix a time for the hearing of the appeal and give due notice thereof to the parties, and decide the same within a reasonable length of time thereafter. At the time of the hearing, any party may appear in person, by agent or by attorney.
(7)
The Board of Appeals, providing SEQR has been complied with, shall render a decision on each appeal within 62 days of the close of the public hearing on said matter. The time within which the Board of Appeals must render its decision may be extended by mutual consent of the applicant and the Board.
(8)
Any action by the Board of Appeals shall be stated in writing and communicated to the person bringing the appeal within five business days after the decision has been made.
§ 103-73 Board of Appeals meetings, records and general procedures.
A.
All meetings of the Board of Appeals shall be held at the call of the Chairperson and at such other times as such Board may determine.
B.
Meetings of such Board of Appeals shall be open to the public to the extent provided in Article 7 of the Public Officers Law.
C.
All votes of the Zoning Board of Appeals shall be taken by roll call. Such 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 also keep records of its examinations and other official actions.
D.
In accordance with General Municipal Law § 809, a member of the Zoning Board of Appeals having a conflict of interest shall abstain from any discussion or voting on that matter.
E.
The Zoning Board of Appeals may request and obtain any advice or opinions on the law relating to any matter before the Board from the Town Attorney, and require the Town Attorney to attend its meetings, provided that funds for such services are made available by the Town Board.
F.
The Zoning Board of Appeals shall have the authority to call upon any department, agency or employee of the Town for such assistance as shall be deemed necessary and as shall be authorized by the Town Board. Such department, agency or employee shall be reimbursed for any expenses incurred as a result of such assistance.
G.
The Town Board may provide for compensation to be paid to experts, clerks and a secretary and provide for such other expenses as may be necessary and proper, not exceeding the appropriation made by the Town Board for such purpose.
H.
The Zoning Board of Appeals shall make factual record of all its proceedings, including the reading of the case, public hearing, deliberation, voting and decisions of the Board. These factual records shall be taken by stenographic and/or tape recorder means and shall be accurate but not necessarily a verbatim transcript, but may be in narrative form. The factual record shall be taken by the Secretary of the Board.
I.
Every rule, regulation, every amendment or repeal thereof, and every order, requirement, decision or determination of the Board of Appeals shall be filed in the office of the Town Clerk within five business days and shall be a public record.
J.
Rehearings. Whenever the Zoning Board of Appeals, after hearing all the evidence presented upon an application for appeals under the provisions of this chapter, denies or rejects same, said Board shall refuse to hold further hearings on the same or substantially similar application for appeal by the same applicant, their successors or assigns, for a period of one year, except and unless the Board shall find and determine from the information supplied in the request for a rehearing that changed conditions have occurred relating to the promotion of public health, safety, convenience, comfort, prosperity and general welfare and that a reconsideration is justified. Such rehearing may be granted only upon the favorable vote of a majority of the Board plus one.
§ 103-74 Board of Appeals office.
The office of the Town Clerk shall be the office of the Board of Appeals. Every rule, regulation, amendment or repeal thereof and every order, requirement, decision or determination of the Board shall immediately be filed in said office as required by § 267 et seq. of the Town Law of the State of New York. The Board of Appeals shall keep minutes of its proceedings, showing the vote, indicating such fact, and shall keep records of its environmental reviews and determination, its examinations and other official action.
§ 103-75 Lapse of authorization.
Any variance or modification of this chapter authorized by the Board of Appeals shall be automatically revoked unless a zoning permit or building permit, conforming to all the conditions and requirements established by the Board of Appeals, is obtained within six months of the date of approval by the Board of Appeals and construction commenced within one year of such date of approval.
§ 103-76 Violation of conditions or restrictions.
Failure to comply with any condition or restriction prescribed by the Board of Appeals in approving any appeal for a variance, or a modification of regulations shall constitute a violation. Such violation may constitute the basis for revocation of a variance or modification or for imposing penalties and other applicable remedies.
§ 103-77 Appeals.
A.
Application to Supreme Court by aggrieved persons. Any person or persons, jointly or severally aggrieved by any decision of the Board of Appeals or any officer, department or board of the Town, may apply to the Supreme Court for review by a proceeding under Article 78 of the Civil Practice Law and Rules. Such proceeding shall be instituted within 30 days after the filing of a decision of the Board in the office of the Town Clerk or in the office designated by resolution of the Town Board. The Court may take evidence or appoint a referee to take such evidence as it may direct and report the same with his or her findings of fact and conclusions of law, if it shall appear that testimony is necessary for the proper disposition of the matter. The court, at special term, shall itself dispose of the cause on the merits, determining all questions which may be presented for determination.
B.
Costs of appeal. Costs shall not be allowed against the Board of Appeals 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.
C.
Preference of appeal to Court. All issues in any proceeding under this section shall have preference over all other civil actions and proceedings.
D.
Power of Court. If, upon the hearing at a Special Term of the Supreme Court, it shall appear to the Court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his or her findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The Court may reverse or affirm, wholly or partly, or may specify the decision brought up for review.
§ 103-78 State environmental quality review (SEQR). [1]
A.
The State Environmental Quality Review Act[2] requires that local government examine the environmental impact of all actions they permit, fund, or construct. Article 6 and Part 617 of Title 6 of the New York Code of Rules and Regulations are hereby adopted by reference.
[2]
Editor's Note: See Environmental Conservation Law § 8-0101 et seq.
B.
All Type I actions (6 NYCRR Part 617) shall require the submission and review of an environmental assessment form.
C.
For zoning action reviewed by the Town, the following bodies shall be lead agency, unless otherwise delegated by the Town Board.
Action | Lead Agency | ||
|---|---|---|---|
Zoning text amendments | - | Town Board | |
Zoning district amendments | - | Town Board | |
Special use permits | - | Planning Board | |
Site plans | - | Planning Board | |
Variances | - | Zoning Board of Appeals |
D.
If in the opinion of the local lead agency, after review of the environmental assessment form, there appears the potential for a significant environmental impact, the lead agency shall cause the applicant to prepare a draft environmental impact statement. Review, notice and action on the EIS shall be conducted according to Part 617.
E.
The local lead agency's review of the action shall include the following procedures and general considerations.
(1)
If the local lead agency determines that the proposed action is not an exempt action, or an action listed in Section 617.12 of Title 6 NYCRR as a Type II action and that ft will not have significant effect on the environment or local plans, then the local lead agency shall prepare, file and circulate such determination as provided in Section 617.7(b) of Title 6 NYCRR and thereafter the proposed action may be processed without further regard to this article.
(2)
The local lead agency shall maintain files that are open for public inspection of all notices of proposed actions, draft and final environmental impact statements, and written determinations.