Bolton Town City Zoning Code
ARTICLE X
Variances
§ 200-62 Purpose of article.
The purpose of this article is to provide for variances from this chapter in cases where the strict application thereof would result in practical difficulties or unnecessary hardships inconsistent with the general purpose and objectives of this chapter.
§ 200-63 Authorization to grant or deny variances.
Any variance to this chapter shall be granted by the Zoning Board of Appeals in accordance with the standards and procedures set forth in this article. In granting a variance, the Zoning Board of Appeals may impose conditions similar to those provided for site plan review uses to protect the best interests of the surrounding property, the neighborhood and the Town as a whole.
§ 200-64 Application for variance.
A.
File with Zoning Administrator. Variances may be instituted by filing an application with the Zoning Administrator in behalf of the Zoning Board of Appeals (ZBA).
B.
Required form. The variance form contained in Appendix F of this chapter shall be used by the applicant, plus any additional information required by the Zoning Board of Appeals as necessary to make its findings according to § 200-65 of this chapter. The Zoning Administrator shall include with the variance application the variance checklist as provided by the Planning Board.
C.
Additional information required. The applicant must supply the Zoning Board of Appeals with:
(1)
A legal description of the property.
(2)
A map showing the property and all properties within a radius of 500 feet of the exterior boundaries thereof.
(3)
Plans and elevations necessary to show the proposed variance.
(4)
The setbacks and location of all proposed structures from the lakeshore.
[Amended 12-7-1999]
(5)
The color and construction materials of all structures.
[Added 12-7-1999]
(6)
The requirement of a cutting and/or landscaping plan acceptable to the Board.
[Added 12-7-1999]
(7)
Other drawings or information considered necessary by the Zoning Board of Appeals to make an informed decision.
[Added 12-7-1999]
D.
Changes, data and documentation made regarding any application shall be submitted at least 14 days prior to the next meeting so that the Board members can review them.
[Added 2-20-1997]
§ 200-65 Requirements for granting variances.
[Amended 2-20-1997; 3-8-2000]
A.
Area variance. The Zoning Board of Appeals shall have the power, upon an appeal from a decision or determination of the Zoning Administrator, to grant area variances as defined herein.
(1)
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.
(2)
The Board of Appeals, in 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 variance. 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.
(1)
No such use variance shall be granted by a Board of Appeals without 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:
(a)
The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;
(b)
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;
(c)
That 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 Board of Appeals, in 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.
Conditions. Imposition of conditions. The Board of Appeals shall, in 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, and/or the period of time such variance shall be in effect. Such condition shall be consistent with the spirit and intent of the Zoning Chapter, and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.
§ 200-66 Referrals.
A.
All complete use variance applications shall be referred to the Town Planning Board for its advisory report and recommendation. In addition, the Zoning Board of Appeals, in its discretion, may by resolution refer any complete area variance to the Planning Board for its advisory report and recommendation. Where required by § 239-m of the General Municipal Law, the Zoning Board of Appeals shall also refer a complete variance application to the Warren County Planning Board for its report and recommendation. In the event of any such referral, then the Zoning Board of Appeals shall not take final action on the variance application until the Planning Board and/or the Warren County Planning Board, as appropriate, have submitted recommendations or returned the application to the Zoning Board of Appeals with no recommendation or until 30 days have passed since the date of referral with no action, whichever occurs first.
[Amended 10-2-2001 by L.L. No. 3-2001]
B.
In the case of any variance application involving land, buildings, or structures in any land use area except hamlet, or any variance application involving the shoreline restrictions, the Zoning Board of Appeals shall submit a copy of the application to the Adirondack Park Agency.
C.
General Municipal Law § 239-m.
(1)
Any variance application, site plan review or zoning amendment within the following thresholds shall be referred to the Warren County Planning Board for their review and comment:
(a)
Within 500 feet of the Town boundary.
(b)
Within 500 feet of an existing or proposed county or state:
[1]
Park or recreation area;
[2]
Right-of-way, parkway, thruway, road or highway;
[3]
Stream or drainage channel or easement;
[4]
Public building or institution.
(2)
Within 30 days after receipt of a full statement of such referred matter, the Warren County Planning Board shall report it recommendations to the referring Town body.
(3)
If the County Planning Board fails to report within 30 days, the Town body may act without such report.
(4)
If the County Planning Board recommends disapproval of the proposal, or recommends modification thereof, the Town body having jurisdiction shall not act contrary to such disapproval or recommendation except by a vote of a majority plus one of all the members thereof, and after the adoption of a resolution, fully setting forth the reasons of such contrary action.
(5)
Within seven days after final action by the Town body a report of said final action shall be filed with the Warren County Planning Board and any other regulatory agency affected by the decision.
§ 200-67 Variance application hearing and decision.
A.
Within 15 days of receipt of a completed application for a variance, the Zoning Board of Appeals shall give notice of a public hearing to be held on the application not less than 15 days nor more than 30 days after the notice. The Adirondack Park Agency shall be a full party in interest, with standing to participate in any and all proceedings under this article for which the Agency was required to be sent notice under § 200-66C(1)(b) of this chapter.
B.
Within 30 days of the final adjournment of a public hearing, called and held under Subsection A of this section, the Zoning Board of Appeals shall grant, grant with conditions, or deny the variance applied for. The decision of the Board shall be in writing and shall contain each of the findings specified in § 200-65 of this chapter, and the factual basis for each finding from the record of hearing, which shall support the decision of the Board. The Board shall notify the Adirondack Park Agency, by certified mail, of such decision. Any variance granted or granted with conditions shall not be effective until 30 days after such notice to the Agency. If, within such thirty-day period, the Agency determines that such variance involves the provisions of the land use and development plan as approved in the local land use program, including any shoreline restriction, and was not based upon the appropriate statutory basis of practical difficulties or unnecessary hardships, the Agency may reverse the local determination to grant the variance.
C.
Expiration of variances.
[Added 9-5-2000; amended 12-4-2001 by L.L. No. 6-2001]
(1)
Unless otherwise specified or extended by the Zoning Board of Appeals, any variance approval shall expire one year from the date of its authorization by the Zoning Board of Appeals if the applicant has failed to undertake the proposed action.
(2)
For the purpose of this provision, "undertaking" the action shall be deemed to be the substantial commencement of construction for projects other than subdivisions and the filing of the subdivision map in the County Clerk's office for subdivision projects.
(3)
Prior to such expiration, an applicant may seek a one-year extension of the variance from the Zoning Administrator, who shall grant such extension if there have been no material changes in the circumstances surrounding the application.
(4)
If the Zoning Administrator is unable to determine whether there have been material changes in the circumstances surrounding the application, the Zoning Administrator shall refer the request for extension to the Zoning Board of Appeals for decision.