Blooming Grove City Zoning Code
ARTICLE XVII
Zoning Board of Appeals
§ 235-88 Creation, appointment and organization; training and education.
[Amended 12-11-2006 by L.L. No. 4-2006]
A.
There shall be a Town Zoning Board of Appeals consisting of five members appointed by the Town Board in accordance with § 267 of the state Town Law. All appointments and reappointments shall be made such that the terms of no two members shall expire at the end of the same calendar year. Appointments and reappointments, and the terms thereof, shall be made by resolution of the Town Board in a manner determined by the Town Board to accomplish the purpose of this chapter. Any person appointed to fill an unexpired term of a member shall be entitled to serve for the remainder of the unexpired term. Any member may be removed by the Town Board for cause and after opportunity for hearing. The Chairman of the Zoning Board of Appeals shall be designated by the Town Board or, on failure to do so, shall be elected by its own members.
B.
The Town Board may require members to complete training and continuing education courses in accordance with any local requirements for the training of such members. Such requirements may be established by resolution of the Town Board. Failure to complete any required training or continuing education courses shall be just cause for removal of a member.
§ 235-89 Powers and duties.
The Zoning Board of Appeals (hereinafter called "Board of Appeals") shall have all the powers and duties prescribed by statute and by this chapter, which are more particularly specified as follows, provided that none of the following provisions shall be deemed to limit any power of the Board that is conferred by law:
A.
Appeals. The Board of Appeals shall hear and decide appeals from and review any order, requirement, decision or determination of the Building Inspector, when acting in his/her capacity as Zoning Enforcement Officer, or such other official charged with enforcement of this chapter. The Board of Appeals may not waive the requirements for site development plan application as required in any part of this chapter.
B.
Interpretation. On an appeal from an order, requirement, decision or determination made by an administrative official or by the Building Inspector, the Board of Appeals may decide any of the following questions:
C.
Variances. On appeal from an order, requirement, decision, interpretation or determination made by the Building Inspector, acting in his/her capacity as Zoning Enforcement Officer, or on referral of an applicant to the Board of Appeals by an approving agency acting pursuant to this chapter, the Board of Appeals is authorized, after public notice and hearing, to vary or modify the strict letter of this chapter, where its literal interpretation would cause practical difficulties or unnecessary hardships, as defined in this section, in such manner as to observe the spirit of this chapter, secure public safety and welfare and to do substantial justice. Variances, once granted, shall be construed to run with the particular site or lot and not with the applicant. Any such appeal shall be taken within 60 days after the date of the filing of the order, requirement, decision, interpretation or determination of the Building Inspector by filing an application in the office of the Zoning Board of Appeals and with the Building Inspector.
(1)
Bulk variances. Where, because of practical difficulty, an applicant requests a variance of the bulk requirements of this chapter, the Board of Appeals may grant a variance in the application of the provisions of this chapter in the specific case, provided that, as a condition to the grant of any such variance, the Board of Appeals shall make a specific finding that the application of the requirements of this chapter to the land in question creates such practical difficulty. In making this determination, the Board of Appeals shall make the following findings:
(a)
That the variance is not substantial in relation to the requirement and to other factors set forth below.
(b)
That the effect of any increased population density which may thus be produced upon available services and facilities is not significant.
(c)
That a substantial change in the character of the neighborhood or a substantial detriment to adjoining properties will not be created.
(d)
That the difficulty cannot be alleviated by some method feasible for the applicant to pursue other than a variance or that a lesser variance cannot alleviate the difficulty.
(e)
That, in view of the manner in which the difficulty arose and considering all of the above factors, the interests of justice will be served by allowing the variance.
(f)
That the variance would not cause adverse aesthetic, environmental or ecological impacts on the property or on surrounding areas and would not harm the general health, safety or welfare.
(g)
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 bulk variance.
[Added 1-25-1999 by L.L. No. 1-1999]
(2)
Use variances. To alleviate unnecessary hardship as hereafter described, the Board of Appeals may grant a variance of the application of the provisions of this chapter in a specific case to allow a use otherwise prohibited in the zoning district in which the property is located, provided that, as a condition to the grant of any such variance, the Board of Appeals shall make the following findings:
(a)
After considering all permitted uses, specially permitted uses and conditional uses allowed in the zoning district and based on documented dollars-and-cents evidence submitted in the record by the applicant that the property in question cannot reasonably be used or yield a reasonable return if used only for a purpose allowed in that district.
(b)
That the plight of the owner is due to unique circumstances affecting the property which is the subject of the application and not to general conditions in the neighborhood or to personal hardship, plight or desires of the property owners.
(c)
That the use to be authorized by the variance will not alter the essential character of the locality.
(d)
That the use to be authorized by the variance is in reasonable harmony with the intent of this chapter.
(e)
That the unnecessary hardship claimed as a ground for the variance has not been created by the owner or by a predecessor in title; purchase of the lands subject to the restriction sought to be varied may constitute a self-created hardship.
(f)
That within the intent and purpose of this chapter, the variance, if granted, is the minimum variance necessary to afford relief. To this end, the Board of Appeals may permit a lesser variance than that applied for.
(3)
Burden of proof. The applicant shall prove that strict application of the zoning law creates practical difficulty or unnecessary hardship. In the event that said practical difficulty or unnecessary hardship is proven, the Board of Appeals shall show that the subject zoning provision serves a legitimate public purpose. The burden shall then shift to the applicant to demonstrate that granting the variance will not adversely affect the public health, safety or welfare.
D.
Extensions across district boundaries. In appropriate cases where a lot lies within two districts, the Board of Appeals may permit the extension of existing or proposed permitted accessory off-street parking spaces across a district boundary, under such conditions as will safeguard the character of the district into which such use is extended. However, no such extension shall exceed 75 feet, measured at right angles to such district boundary. The power under this subsection shall not permit the moving of the zoning district line but only the extension of the accessory off-street parking space.
F.
The Board of Appeals shall hear and decide any other permit application as authorized by local law.
G.
The Board of Appeals, after a public hearing, shall have the power to direct the Building Inspector to issue a building permit or certificate of occupancy, as the case may be, subject to the other applicable laws, codes, rules and regulations.
§ 235-90 Rules of procedure.
A.
The Board of Appeals may adopt rules and regulations with respect to procedure before it and with respect to any subject matter over which it has jurisdiction. Such regulations shall include provisions for conduct of meetings, notification of parties, form of applications and filing of decisions.
B.
Every decision of the Board of Appeals shall be recorded in accordance with a standard format adopted by such Board, shall fully set forth the circumstances of the case and shall contain a record of the finding on which the decision is based. Every decision of said Board of Appeals shall be by resolution, and each such resolution shall be filed in the offices of the Town Clerk and Building Inspector by case number.
C.
All appeals and applications made to the Board of Appeals shall be in writing and shall be accompanied by a fee as determined in the Standard Schedule of Fees, as may be adopted from time to time by resolution of the Town Board.[1]
[1]
Editor's Note: The Standard Schedule of Fees is on file in the Town offices.
D.
No decision by the Board of Appeals shall be made until after a public hearing. Written notice of said hearing shall be published in the official newspaper and posted at the Town Hall, and mailed (at the applicant's expense) to all known owners of property located within 500 feet of each boundary of the subject property at least five days prior to the date of the hearing. All appeals and applications made to the Board of Appeals in connection with property located in the Mt. Lodge Park area will be subject to the notice requirements of this provision, except such mailings are limited to property located within 200 feet of each boundary of the subject property. Such other notice, as required by Article 12-B of the General Municipal Law, Article 8 of the Environmental Conservation Law and other applicable laws, shall also be given. The public hearing shall be held within 62 days after the Board's first regular meeting following receipt of the application, and the Board shall make a decision within 62 days after close of the public hearing.
[Amended 7-9-2007 by L.L. No. 4-2007; 8-25-2015 by L.L. No. 5-2015]
(1)
The applicant shall perform the following procedure for mailing notice of a public hearing:
(a)
All applicants shall obtain a certified list of names and addresses of property owners which lie within 500 feet of any boundary line of the property for which relief is sought (except such mailings are limited to properties located within 200 feet of each boundary line for property located in the Mt. Lodge Park area) that are required to be notified of a specific action.
(b)
The ZBA Clerk shall prepare the legal notice to be mailed to the property owners and shall present the legal notice to the applicant for mailing in accordance with the procedures set forth herein.
(c)
The applicant shall place the name and address on an appropriate-size mailing envelope, said address to be in the same form as on the Assessor's records. In the event that two or more parcels have identical ownership, only one notice shall be required to be mailed. The applicant shall place the legal notice in the envelope and affix the proper postage for first-class mail on the envelope and seal the same.
(d)
The sealed, addressed, stamped envelopes shall be brought to the Town Hall and delivered to the ZBA Clerk at least ten (10) days prior to the hearing date. The Clerk shall verify the names and addresses and compare the same to the certified mailing list supplied by the Assessor and shall thereafter deposit said envelopes in a United States postal depository within the Town of Blooming Grove. The Clerk shall execute an affidavit of mailing setting forth that said Clerk has compared all the envelopes addressed to the certified list supplied by the Assessor and also finds that the appropriate number of envelopes have been prepared. The affidavit shall also set forth that the Clerk has personally deposited the envelopes in a United States postal depository within the Town of Blooming Grove and set forth the date upon which said deposit was made.
(2)
The Town Board may, from time to time, by resolution, amend the mailing procedure set forth above.
§ 235-91 Expiration of variance or permit approvals.
Any approval of a variance or permit granted by the Board of Appeals shall expire if application for a building permit or certificate of occupancy pursuant to such approval is not made within six months of the date of approval or if construction or occupancy pursuant thereto is not completed within 18 months of the date of the approval. The date of approval shall be the date that the Zoning Board's decision is filed in the Town Clerk's office. Compliance with conditions attached to an approval shall not affect the date of approval. Extensions of such time periods may be granted by the Zoning Board of Appeals upon application of the property owner prior to the date of expiration. Any approval which has not been so acted upon or extended shall be void.
§ 235-92 Review of Board of Appeals determinations.
Any person aggrieved by any decision of the Board of Appeals hereunder may, within 30 days of the filing of the decision with the office of the Town Clerk, seek judicial review pursuant to Article 78 of the Civil Practice Law and Rules.