Athens Town City Zoning Code
ARTICLE VIII
Administration and Enforcement
§ 180-70 Enforcement.
This chapter shall be enforced by the Code Enforcement Officer, who shall be appointed by the Town Board. In the case of vacancy in the office of the Code Enforcement Officer, the Town Supervisor or his designee, as ratified by the Town Board, shall be the acting enforcement officer. No building permit or certificate of occupancy shall be issued by the Code Enforcement Officer except where all the provisions of this chapter have been complied with.
§ 180-71 Permits.
Building permit. No building or dwelling unit shall be constructed, structurally altered, enlarged or moved, with costs more than $2,500, unless a building permit for such action has been issued by the Code Enforcement Officer.
Matter accompanying application for permits.
Each application to the Code Enforcement Officer for a permit to erect a new building or structure or to enlarge an existing one or to move an existing one shall be accompanied by a site plan showing the measurements of the lot and of all building setbacks and parking spaces, existing and proposed, and the intended use. The documentation shall be the same as required for site plan review. For new construction without public sewers, no building permit shall be issued unless any required approval is received by the New York State Department of Health and, where applicable, the New York State Department of Environmental Conservation.
Any other application for a building permit and any application for a use permit shall be accompanied by a description of the intended use or uses of the land and buildings and such further details as the Code Enforcement Officer may require for a clear understanding of the case.
§ 180-72 Zoning Board of Appeals.
Establishment.
A Zoning Board of Appeals is hereby established in accordance with Article 16, § 267, of the Town Law. It shall consist of five members, each to serve for a term of five years. The Town Board may appoint alternate members to the Board of Appeals in accordance with Chapter 48 of the Town Code. The term of office of the members of the Board of Appeals and the manner of their appointment shall be in accordance with the provisions of Article 16 of the Town Law. Such members shall complete the training requirements provided in § 267 of the Town Law. A member of the Board of Appeals shall not at the same time be a member of the Town Board.
Vacancies occurring in said Board shall be filled for such unexpired period only. The Town Board shall designate its chairperson and shall provide for such expenses as may be necessary and proper. In the absence of a chairperson, the Zoning Board of Appeals may designate a member to serve as acting chairperson.
The Town Board shall have the power to remove any member of the Zoning Board of Appeals for cause and after public hearing.
Powers.
The Zoning Board of Appeals shall have the duties, rights, powers and functions conferred upon it by Article 16 of the Town Law and any other provisions of the Town Law and any other provisions of law or ordinance applicable thereto in connection with appeals to review any order, requirement, decision, interpretation or determination made by the administrative official charged with the enforcement of this chapter, generally the Code Enforcement Officer. The Board, upon application, may also issue advisory opinions and interpretations of the zoning code or map.
Hearing appeals. In addition to other powers conferred to it by this chapter, the jurisdiction of the Zoning Board of Appeals shall be appellate and shall include hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation or determination made by the Enforcement Officer. Such appeal may be taken by any person aggrieved, or by an officer, department, board or bureau of the Town.
Conduct of business.
The Zoning Board of Appeals may employ such clerical or other staff as may be necessary, provided that it shall not incur expenses beyond the amount of appropriations made available by the Town Board for such purposes.
Meetings, minutes, records. Meetings of the Zoning Board of Appeals shall be open to the public to the extent provided in Article 7 of the Public Officers Law. 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.
Filing requirements. 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.
Assistance to Board of Appeals. Such Board 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 may be reimbursed for any expenses incurred as a result of such assistance. Further, the Zoning Board of Appeals shall have the authority to call upon any professional to assist in its review of applications. Expenses for such professional shall be borne by the applicant.
The Zoning Board of Appeals shall have the power to promulgate written rules of procedure, bylaws and forms in order to fulfill its responsibilities under this chapter.
All meetings of the Zoning Board of Appeals shall be held at the call of the chairperson and at such other times as the Board may determine.
If an agricultural data statement has been submitted, the Clerk of the Zoning Board of Appeals shall, upon receipt of the variance application, mail written notice of the application to the owners of land as identified by the appellant in the agricultural data statement. Such notice shall include a description of the proposed variance and its location. The cost of mailing the notice shall be borne by the appellant.
Time of appeal. An appeal shall be taken within 60 days after the filing of any order, requirement, decision, interpretation or determination of the Enforcement Officer by filing with such officer and with the Zoning Board of Appeals a notice of appeal, specifying the grounds thereof and the relief sought on forms prescribed by the Zoning Board of Appeals. Such application shall refer to the specific provision of this chapter involved and shall specify the grounds for the variance requested, the interpretation claimed or for the reversal of an order, requirement, decision or determination of an administrative official. The Zoning Enforcement Officer shall transmit to the Zoning Board of Appeals all the papers constituting the record upon which the action appealed from was taken.
Stay upon appeal. An appeal shall stay all proceedings in furtherance of the action appealed from, unless the Enforcement Officer certifies to the Board of Appeals, after the notice of appeal shall have been filed with the administrative official, that by reason of facts stated in the certificate a stay, would, in his or her 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 administrative official from whom the appeal is taken and on due cause shown.
Hearing on appeal. The Board of Appeals shall fix a reasonable time for the hearing of the appeal or other matter referred to it after receipt of a complete application. The Zoning Board of Appeals shall 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 prior to the hearing of such appeal. Upon the hearing, any party may appear in person, or by agent or attorney. In addition to the public notice of a hearing, notice shall be given, in writing, to all property owners of the land included in such proposed change, and the land immediately adjacent extending 500 feet therefrom, and the land directly opposite thereto extending 500 feet from the street or highway frontage of such opposite land, as said property owners and addresses appear on the latest completed assessment roll of the Town. Upon the hearing, any party may appear in person, or by agent or by attorney. The 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 in the premises and to that end shall have all the powers of the officer from whom the appeal is taken.
Notice to County Planning Board. At least five days before such hearing, the Board of Appeals shall mail notices thereof to the parties and to the County Planning Board as required by § 239-m of the General Municipal Law. This notice shall be accompanied by a full statement of the proposed action, as defined in Subdivision 1 of § 239-m of the General Municipal Law. No action shall be taken on variances referred to the County Planning Board until its recommendation has been received, or 30 days have elapsed after its receipt of the full statement of the proposed variance, unless the county and Town agree to an extension beyond the thirty-day requirements for the County Planning Board's review. A majority-plus-one vote shall be required to approve any variance which receives a recommendation of disapproval from the County Planning Board because of the referral process specified above, along with a resolution setting forth the reasons for such contrary action.
Time of decision on appeal. The Board of Appeals shall decide upon the appeal 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.
Voting requirements.
Decision of the Board. Every motion or resolution of a Board of Appeals shall require for its adoption the affirmative vote of a majority of all the members of the Board of Appeals as fully constituted, regardless of vacancies or absences. Where an action is the subject of a referral to the county planning agency, the voting provisions of § 239-m of the General Municipal Law shall apply.
Default denial of appeal. In exercising its appellate jurisdiction only, if an affirmative vote of a majority of all members of the Board is not attained on a motion or resolution to grant a variance or reverse any order, requirement, decision or determination of the Enforcement Officer within the time allowed, the appeal is denied. The Board may amend the failed motion or resolution and vote on the amended motion or resolution within the time allowed without being subject to the rehearing process.
Filing of decision and notice. The decision of the 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.
Compliance with State Environmental Quality Review Act. The Board of Appeals shall comply with the provisions of the State Environmental Quality Review Act under Article 8 of the Environmental Conservation Law and its implementing regulations as codified in Title 6, Part 617, of the New York Codes, Rules and Regulations.
Rehearing. A motion for the Zoning Board of Appeals to hold a rehearing to review any order, decision or determination of the Board not previously reheard may be made by any member of the Board. A unanimous vote of all members of the Board then present is required for such rehearing to occur. Such rehearing is subject to the same notice provisions as an original hearing. Upon such rehearing, the Board may reverse, modify or annul its original order, decision or determination upon the unanimous vote of all members then present, provided the Board finds that the rights vested in persons acting in good faith in reliance upon the reheard order, decision or determination will not be prejudiced thereby.
Permitted action by Board of Appeals.
Orders, requirements, decisions, interpretations, determinations. The Board of Appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, interpretation or determination appealed from and shall make such order, requirement, decision, interpretation or determination as in its opinion ought to have been made in the matter by the administrative official charged with the enforcement of such ordinance or local law and to that end shall have all the powers of the administrative official from whose order, requirement, decision, interpretation or determination the appeal is taken.
Use variances.
The Board of Appeals, on appeal from the decision or determination of the administrative official charged with the enforcement of such ordinance or local law, shall have the power to grant use variances, as defined herein.
No such use variance shall be granted by a Board of Appeals 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 Board of Appeals that for each and every permitted use under the zoning regulations for the particular district where the property is located:
The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;
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;
That the requested use variance, if granted, will not alter the essential character of the neighborhood; and
That the alleged hardship has not been self-created.
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.
Area variances.
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, to grant area variances as defined herein.
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:
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;
Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;
Whether the requested area variance is substantial;
Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and
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.
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 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 or local law and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.
Court review of Board decisions.
Any person or persons jointly or severally aggrieved by any decision of the Zoning Board of Appeals may apply to the Supreme Court for review by a proceeding under Article 78 of the Civil Practice Law and Rules and § 267-c of the Town Law.
Expiration of appeal decision. Unless otherwise specified by the Zoning Board of Appeals, a decision on any appeal shall expire if the appellant fails to obtain any necessary building permit within 12 months of the date of such decision.
Grant of variance. The grant of a variance shall serve as authorization for the Code Enforcement Officer to issue a project permit, provided that the project complies with all applicable provisions of this chapter and other applicable regulations.
§ 180-73 Planning Board.
The Town Board shall appoint and designate the Chair. In the absence of a chair, the Planning Board may designate a member to serve as Acting Chair. A member of the Planning Board shall not simultaneously be a member of the Town Board or of the Zoning Board of Appeals. The Town Board shall have the power to remove any member appointed by such Board for cause after a public hearing. The Chair may only be removed from office pursuant to this section by action of the Town Board. The Town Board shall provide for reasonable compensation for a clerk and for such other expenses as may be necessary and proper. The Office of the Town Clerk may serve as the Office of the Clerk of the Planning Board. Additionally, the Town Clerk may appoint a deputy to serve as the Clerk of the Planning Board.
Powers of the Planning Board. The responsibilities of the Planning Board are as follows:
Reviewing and approving subdivision applications;
Reviewing and approving site plans;
Reviewing and approving special use permits;
Submitting an advisory opinion to the Town Board for proposed amendments to this chapter;
Reviewing proposed PUD applications;
Reviewing and approving lot line changes or adjustments; and
Any other matter that the Town Board shall, by amendment to this chapter, decide to vest as responsibilities of the Planning Board.
Terms. Terms of office for members of the Planning Board shall be for seven years. If a vacancy shall occur otherwise than by expiration of term, the Town Board shall appoint the new member for the remainder of the term.
Training and continuing education. Every member of the Planning Board shall annually attend four hours at one or more training or continuing education course related to the work of the Planning Board each year as provided pursuant to Town Law § 271. The Town Board shall pay the reasonable expense of such training or continuing education.
Appointment and removal of members. Except as otherwise provided herein, § 271 of the Town Law shall govern the appointment and removal of Planning Board members.
Conduct of business.
The Planning Board may employ such clerical or other staff or consulting assistance as may be necessary for the conduct of its business, provided that it shall not incur expenses beyond the amount of appropriations made available for such purposes or covered by an escrow account. The Planning Board may also engage engineers, planners, architects and other consulting services at the expense of the applicant for site plan review, subdivision approval or a special use permit as provided for in Chapter 153 of the Town Code.
All meetings of the Planning Board shall be held at the call of the Chair and at such other times as such Board may determine. The concurring vote of a majority of all members shall be necessary to take action on any matter before it. Meetings shall be open to the public as provided in Article 7 of the Public Officers Law of the State of New York (Open Meetings Law[1]). The Board shall keep minutes of its proceedings. The minutes shall show the vote of each member upon every question, or if absent or failing to vote, indicating such fact. The Planning Board shall also keep records of its examinations and other official actions, which shall also be filed in the office of the Town Clerk.
The Planning Board may adopt forms and bylaws for the conduct of its meeting so long as such bylaws are consistent with Town Law and this chapter. Such forms and bylaws shall be filed in the office of the Town Clerk and made available to the public.
Voting requirements. Every motion or resolution of the Planning Board shall require for its adoption the affirmative vote of a majority of all the members of the Planning Board. Where an action is the subject of a referral to the county planning agency, the voting provisions of §§ 239-m and 239-n of the General Municipal Law shall apply.
Procedure. All applications to the Planning Board shall be made, in writing, on forms prescribed by the Planning Board and provided by the Town Clerk. Every final decision of the Planning Board with respect to an application shall be made by resolution and shall contain a full record of findings in the case. The decision of the Planning Board shall immediately be filed in the office of the Town Clerk, and copies thereof mailed to the applicant and to the Code Enforcement Officer.
§ 180-74 Penalties for offenses.
If the alleged violator(s) fails to correct the violation within the reasonable time period provided for correction of the violation, the Code Enforcement Officer shall then commence a proceeding in the local Justice Court as per this section. Prior to implementing a criminal or civil penalty, the Code Enforcement Officer shall inform the Town Board to determine which procedure to pursue.
Criminal proceedings. The Code Enforcement Officer shall commence the proceeding by causing an appearance ticket to be served on the alleged violator(s) in accordance with the requirements of state law for issuance of appearance tickets. An appearance ticket issued under authority of this chapter shall be served personally. The Code Enforcement Officer shall also prepare a supporting deposition or affidavit setting forth the details of the violation. The deposition shall:
The Code Enforcement Officer may also, where an appearance ticket fails to secure the court attendance of the alleged violator(s), request that the Justice Court issue a criminal summons for service on the alleged violator(s). The Town Attorney shall represent the Code Enforcement Officer in the Justice Court. Notwithstanding the foregoing, the Code Enforcement Officer may simultaneously, or in addition to the remedy provided in this chapter, refer the alleged violation to the Town Board and Town Attorney for an injunction and the collection of civil fines.
As per New York State Town Law § 268, any violation of 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, for conviction of a first offense; upon conviction of a second offense, both of which were committed within a period of five years, punishable by a fine of not less than $350, nor more than $700, or imprisonment for a period not to exceed six months, or both; and upon conviction of a third or subsequent offense, all of which 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 a period not to exceed six months, or both. For the purpose of conferring jurisdiction upon the courts and judicial officers generally, violations of the Zoning Law 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. A violator must be served a new deposition and criminal summons for each and every week that a fine is sought.
Civil penalties. In addition to those penalties prescribed by state law, any person who violates any provision of this Zoning Law, or any term or condition of any zoning permit, stop-work order, operating permit or other notice or order issued by the Code Enforcement Officer pursuant to any provision of this Zoning Law, shall be liable to a civil penalty of not more than $200 for each day or part thereof during which such violation continues. The civil penalties provided by this subsection shall be recoverable in an action instituted by Athens.
Injunctive relief. An action or proceeding may be instituted by the Town, in a court of competent jurisdiction, to prevent, restrain, enjoin, correct or abate any violation of, or to enforce, any provision of this chapter or any term or condition of any stop-work order, operating permit, compliance order or other notice or order issued by the Code Enforcement Officer pursuant to any provision of this chapter. In particular, but not by way of limitation, where the construction or use of a building or structure is in violation of any provision of this chapter, or any stop-work order or compliance order or this chapter, an action or proceeding may be commenced in the name of the Town, in the Supreme Court or in any other court having the requisite jurisdiction, to obtain an order directing the removal of the building or structure or an abatement of the condition in violation of such provisions. No action or proceeding described in this section shall be commenced without the appropriate authorization from the Town Board.
Remedies not exclusive. No remedy or penalty specified in this section shall be the exclusive remedy or remedy available to address any violation described in this section, and each remedy or penalty specified in this section shall be in addition to, and not in substitution for or limitation of, the other remedies or penalties specified in this section, in any other section of this chapter or in any other applicable law. Any remedy or penalty specified in this section may be pursued at any time, whether prior to, simultaneously with or after the pursuit of any other remedy or penalty specified in this section, in any other section of this chapter or in any other applicable law. In particular, but not by way of limitation, each remedy and penalty specified in this section shall be in addition to, and not in substitution for or limitation of, the penalties specified in Subdivision (2) of § 381 of the New York State Executive Law, and any remedy or penalty specified in this section may be pursued at any time, whether prior to, simultaneously with or after the pursuit of any penalty specified in Subdivision (2) of § 381 of the New York State Executive Law.
§ 180-75 Amendments.
The Town Board may from time to time, on its own motion or on petition or on recommendation of the Planning Board, supplement or repeal the regulations and provisions of this chapter after public notice and hearing.
Every such proposed amendment or change, whether initiated by the Town Board or by petition, shall be referred to the Planning Board for report thereon before the public hearing hereinafter provided for.
The Town Board, by resolution adopted at a stated meeting, shall fix the time and place of a public hearing on the proposed amendment and cause notice to be given as follows:
By publishing a notice of the time and place of said hearing in a paper of general circulation in the Town at least 10 days prior to said hearing.
A written notice of any proposed change or amendment affecting property within the proposed zoned area of a housing project authorized under the Public Housing Law, as such area is shown on an approved Zoning Map filed with the Code Enforcement Officer, shall be given to the housing authority erecting or owning the project and to the government providing financial aid or assistance thereto at least 10 days prior to the date of such hearing.
A written notice of any proposed change or amendment affecting property within 500 feet of the boundaries of any state park or parkway shall be given to the regional State Park Commission having jurisdiction over such state park or parkway at least 10 days prior to the date of such public hearing.
A written notice of any proposed change or amendment affecting property within 500 feet of the boundaries of any city, village, town or county shall be given to the clerk of such municipality and to the Clerk of the Greene County Legislature at least 10 days prior to the date of such hearing.
In case, however, of a protest against such change signed by the owners of 20% or more of the area of land included in such proposed change or of that immediately adjacent, extending 100 feet therefrom, or of that directly opposite thereto, extending 100 feet from the street frontage of such opposite land, such amendment shall not become effective except by the favorable vote of at least four members of the Town Board.
§ 180-76 Interpretation; conflict with other laws.
In their interpretation and application, the provisions of this chapter shall be held to be minimum requirements, adopted for the promotion of the public health, morals, safety or the general welfare. Whenever the requirements of this chapter are at variance with the requirements of any other lawfully adopted rules, regulations or ordinances, the most restrictive, or that imposing the highest standards, shall govern.