Austerlitz City Zoning Code
ARTICLE X
Variances and Appeals
§ 195-36 Authority of Zoning Board of Appeals.
A.
The Zoning Board of Appeals shall perform the duties and powers prescribed by the laws of New York State and by this chapter in connection with requests for variances from this chapter and appeals to review any order, requirement, decision, interpretation or determination made by officials charged with the enforcement of this chapter. Unless otherwise provided by this chapter, the jurisdiction of the Zoning Board of Appeals shall be appellate only and shall be limited to hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation or determination made by the administrative officials charged with the enforcement of this chapter.
B.
Permitted action. An appeal may be taken by any person aggrieved or by any officer, department, board or bureau of the Town aggrieved by any order, requirement, decision, interpretation or determination made by officials charged with the enforcement of this chapter. The Zoning Board of Appeals may reverse or affirm, wholly or in part, or may modify any order, requirement, decision, interpretation or determination made by officials charged with the enforcement of this chapter, including granting area or use variances. In so doing, the Zoning Board of Appeals shall have all of the powers of such officials in granting relief in the form of reversal, modification, affirmation, interpretation or determination.
§ 195-37 Variances.
The Zoning Board of Appeals shall have the power to vary or modify the application of this chapter where it imposes practical difficulties or unnecessary hardship. Upon appeal for a variance, and after public notice and hearing, the Zoning Board of Appeals may grant such variances relating to the use, area, construction or alteration of structures or use of land so that the spirit of this chapter is observed, public safety and welfare secured and substantial justice done.
A.
Use variances.
(1)
Use variances shall not be granted by the Board of Appeals without a showing by the applicant that applicable zoning regulations and restrictions have caused an 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:
(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)
That the alleged hardship has not been self-created.
(2)
The Zoning Board of Appeals, in the granting of use variances, shall grant the minimum variance that it deems necessary and adequate to address the unnecessary hardship proved 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.
B.
Area variances.
(1)
In its consideration of area variances, the Board of Appeals shall take into account 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 of Appeals 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 Zoning Board of Appeals but shall not necessarily preclude the granting of the area variance.
(2)
The Zoning 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.
C.
Imposition of conditions. The Zoning 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 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 such variance may have on the Town of Austerlitz.
§ 195-38 Appeals process and procedures.
A.
Application. Application for appeal shall be in writing and must be filed with the Code Enforcement Officer within 60 days after the filing of the order, requirement, decision, interpretation or determination that is being appealed. Such application shall refer to the specific provisions of this chapter involved and shall specify the grounds for the variance requested, the interpretation claimed or the reversal of an order, requirement, decision or determination of an administrative official and the relief sought. The Code Enforcement Officer shall forward the application to the Zoning Board of Appeals. The Zoning Board of Appeals may request additional information, including but not limited to any or all of the items listed in this chapter.
B.
SEQRA. The Zoning Board of Appeals shall comply with the provisions of the New York 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.
C.
Meetings. Meetings of the Zoning Board of Appeals shall be open to the public to the extent provided by law. 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 also keep records of its examinations and other official actions.
D.
Assistance of employees. 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 may be reimbursed for any expenses incurred as a result of such assistance.
E.
Hearing on appeal. The Zoning Board of Appeals shall fix a reasonable time for the hearing of an appeal 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.
F.
Time of decision. The Zoning Board of Appeals shall decide upon the appeal within 62 days after such 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 Zoning Board of Appeals.
G.
Filing requirements and notice of decision. Every rule, regulation, every amendment or repeal thereof, and every order, requirement, decision or determination of the Zoning Board of Appeals shall be filed in the office of the Town Clerk and shall be a public record. Decisions of the Zoning Board of Appeals on appeal shall be filed within five business days after the day such decision is rendered, and a copy thereof mailed to the applicant.
H.
Notice to Park Commission and County Planning Board. At least five days before said hearing, the Zoning Board of Appeals shall mail notices thereof to the parties, to the regional State Park Commission having jurisdiction over any state park or parkway within 500 feet of the property affected by such appeal and to the County Planning Board as required by § 239-m of the General Municipal Law, which notice shall be accompanied by a full statement of such proposed action as defined in Subdivision 1 of § 239-m of the General Municipal Law.
I.
Voting requirements.
(1)
Decision of the Board. Except as otherwise provided in Subsection J hereof, every motion or resolution of the Zoning Board of Appeals shall require for its adoption the affirmative vote of a majority of all the members of the Zoning Board of Appeals as fully constituted, regardless of vacancies or absences. Where an action is the subject of a referral to the County Planning Board, the voting provisions of § 239-m of the General Municipal Law shall apply.
(2)
Default denial of appeal. In exercising its appellate jurisdiction only, if an affirmative vote of a majority of all members of the Zoning Board of Appeals is not attained on a motion or a resolution to grant a variance or reverse any order, requirement, decision or determination of the enforcement official within the time allowed by Subsection F of this section, the appeal is denied. The Zoning Board of Appeals 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 set forth in Subsection J of this section.
J.
Rehearing. A motion for the Zoning Board of Appeals to hold a rehearing to review any order, decision or determination of the Zoning Board of Appeals not previously reheard may be made by any member of the Zoning Board of Appeals. A unanimous vote of all members of the Zoning Board of Appeals 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 Zoning Board of Appeals may reverse, modify or annul its original order, decision or determination upon the unanimous vote of all members then present, provided that the Board of Appeals 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.
K.
Stay upon appeal. An appeal shall stay all proceedings in furtherance of the action appealed from, unless the administrative official charged with the enforcement of this chapter, from whom the appeal is taken, certifies to the Zoning Board of Appeals, after the notice of appeal is filed, 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 other than by a restraining order, which may be granted by the Zoning Board of Appeals or by a court with jurisdiction on application, with notice to the administrative official from whom the appeal is taken and on due cause shown.
L.
Expiration of appeal decision. Unless otherwise specified by the Zoning Board of Appeals, and without any further hearing by the Zoning Board of Appeals, a decision on any appeal, including the granting of area and use variances, shall automatically lapse and expire if the applicant fails to exercise the variance or fails to obtain any necessary building permits within one year of the date the decision is filed.