Brutus Town City Zoning Code
ARTICLE XI
Appeals, Interpretations and Special Permits: Zoning Board of Appeals and Planning Board
[1]
Editor's Note: This title of Article XI was amended from "Zoning Board of Appeals" 4-8-2013 by L.L. No. 1-2013.
§ 125-82 Board established.
In order that the objectives of this chapter may be more fully and equitably achieved and a means for competent interpretation of this chapter provided, there is established a Zoning Board of Appeals for the Town of Brutus.
§ 125-83 Membership; terms.
The Zoning Board of Appeals shall consist of five members appointed by the Town Board for overlapping five-year terms.
§ 125-84 Organization; meetings; minutes and decisions.
A.
Procedures. The Town Board shall appoint a Chairperson and the Zoning Board of Appeals shall appoint a Secretary and shall prescribe rules in accordance with the statutes of the State of New York and this chapter for the conduct of its affairs.
B.
Meetings. Meetings shall be held at the call of the Chairperson and at such other times as the Zoning Board of Appeals shall specify in its rules of procedures.
C.
Records and decisions. Minutes shall be recorded of all proceedings, which shall contain evidence and data relevant to every case considered, together with the votes of the members, and the final disposition of each case. Every decision of the Zoning Board of Appeals shall bear the signatures of a majority of the members of the Zoning Board of Appeals on the original thereof. All decisions of the Zoning Board of Appeals shall be permanently filed with the official Town records. The Zoning Board of Appeals shall notify the Town Board, Planning Board and Zoning Officer of all decisions and resolutions.
§ 125-85 Notice of hearings.
[Amended 4-9-2007 by L.L. No. 2-2007; 5-11-2015 by L.L. No. 1-2015]
Upon filing with the Planning Board of an application for a special permit or the Zoning Board of Appeals of an application for a variance or appeal from alleged error of the Zoning Officer, the Planning Board or Zoning Board of Appeals shall fix a reasonable time and place for a public hearing and give notice as follows:
A.
At least five days prior to the date fixed for the public hearing, publish a notice in the official newspaper describing the location of the building or lot and the general nature of the question involved. At least 10 days before such hearing, the Planning Board or Zoning Board of Appeals shall mail notices thereof to the parties, to the Planning Board (in the case of a hearing by the Zoning Board of Appeals) and to the regional New York State Park Commission having jurisdiction over any state park, parkway or thruway within 500 feet of the property affected by such appeal.
B.
Give written notice to parties in interest, who shall be at least those persons whose properties adjoin or are across public roads from the property in question.
C.
Co-location of a telecommunications facility on an existing tower or structure shall not be subject to the requirement to conduct a public hearing, unless such co-location shall result in an increase in the total height of the tower or structure to which it is to be co-located.
§ 125-86 Appeals from decisions of Zoning Officer.
The Zoning Board of Appeals shall hear and decide appeals, where it is alleged there is an error in any order, requirement, decision or determination, including any order requiring an alleged violator to stop, cease and desist, made by the Zoning Officer in the enforcement of this chapter.
§ 125-87 Variances.
A.
The Zoning Board of Appeals shall have the power to authorize, upon appeal, in specific cases, such variance from the terms of this chapter as will not be contrary to public interest where, owing to special conditions, a literal enforcement of the provisions of this chapter will result in unnecessary hardship, and so that the spirit of this chapter shall be observed and substantial justice done.
B.
The applicant shall have the burden of proof in establishing the right to a variance.
C.
Standards for decisions.
(1)
In reaching its decisions, the Zoning Board of Appeals shall be guided by the following standards:
(a)
That the granting of the variance 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.
(b)
There must be proof of unique circumstances, that there are special circumstances or conditions, fully described in the findings, applying to the land or buildings for which the variance is sought, which circumstances are peculiar to such land or buildings and do not apply generally to land or buildings in the neighborhood and that said circumstances or conditions are such that the strict application of the provisions of this chapter would deprive the applicant of the reasonable use of such land or building.
(c)
There must be proof of unnecessary hardship. If the hardship is general, that is, if it is shared by neighboring property, relief can be properly obtained only by legislative action.
(d)
That the granting of the variance is necessary for the reasonable use of the land or building and that the variance granted by the Zoning Board of Appeals is the minimum variance that will accomplish this purpose. It is not sufficient proof of hardship merely to show that greater profit would result if the variance were awarded. Furthermore, hardship complained of cannot be self-created; it cannot be claimed by one who purchases with or without knowledge of restrictions; it must result from the application of this chapter; it must be suffered directly by the property in question; and evidence of variances granted under similar circumstances shall not be considered.
(2)
The Zoning Board of Appeals may prescribe any safeguard that it deems to be necessary to secure substantially the objectives of the regulation or provision to which the variance applies.
§ 125-88 Special permits.
A.
The Planning Board shall have the power to hear and decide upon applications for special permits for any of the uses for which this chapter requires the obtaining of a special permit from the Planning Board. Should any other section of this code reference the Zoning Board of Appeals as the agency charged with the review and approval of special permits, such reference shall be removed and replaced with the correct reference to the Planning Board as the agency charged with the review and approval of special permits.
[Amended 4-8-2013 by L.L. No. 1-2013; 5-11-2015 by L.L. No. 1-2015]
B.
The general requirements and standards applicable to all special permits are as follows:
(1)
No such special permit shall be granted by the Planning Board unless it finds that the use for which such special permit is sought will not, in the circumstances of the particular case and under any conditions that the Planning Board considers necessary or desirable, be injurious to the neighborhood or otherwise detrimental to the public welfare.
[Amended 4-8-2013 by L.L. No. 1-2013]
(2)
Such conditions which the Planning Board may impose shall be written in full on the special permit and be entered in full in the minutes of the Planning Board.
[Amended 4-8-2013 by L.L. No. 1-2013]
(3)
The special uses for which a special permit is required and for which conformance to additional standards are required shall be deemed to be permitted uses in their respective districts, subject to the satisfaction of the requirements and standards set forth herein, in addition to all other requirements of this chapter. All such uses are hereby declared to possess characteristics of such unique and special forms that each specific use shall be considered as an individual case.
(4)
No special permit shall be issued except upon findings of fact and conclusions of law having been made by the Planning Board in satisfaction of all of the following standards. The burden of proof for a special permit is always on the applicant. In order for the applicant to be entitled to a special permit, he must satisfy the following criteria, in addition to any other standards set forth in this chapter:
[Amended 4-8-2013 by L.L. No. 1-2013]
(a)
That the proposed use will not, in the circumstances of the particular case and under any conditions that the Planning Board considers to be necessary or desirable, be injurious to the neighborhood or otherwise detrimental to the public welfare.
(b)
That the proposed site plan must include a current survey made by a licensed land surveyor. The site plan shall show the location of all buildings, parking areas, traffic access and circulation drives, open spaces, and landscaping. (Failure to adhere to the site plan precisely as presented or as otherwise modified by order of the Planning Board will constitute a violation of this chapter.)
(c)
That there is no violation of this chapter on the subject premises at the present time.
(d)
That the following are all in harmony with adjoining land uses and with the orderly development of the district:
[1]
The location and size of the proposed use.
[2]
The dimensions of the proposed buildings.
[3]
The nature and intensity of the operation involved.
[4]
The size of the site in relation to the proposed use.
[5]
The location of the site with respect to existing streets.
[6]
The location of the site with respect to future streets.
(e)
That the location, geometric characteristics, elevation, nature, height, architectural features, texture, color, lighting, design and compatibility of the following will not discourage the appropriate development and use of the adjacent lands or buildings or impair the value thereof and are all in harmony with adjacent present uses and permitted uses:
[1]
Buildings.
[2]
Walls.
[3]
Fences.
[4]
Signs.
[5]
Driveways.
[6]
Plantings, lawns and trees.
[7]
Parking areas.
[8]
Lighting.
[9]
Topographic features.
[10]
Natural vegetation.
(f)
That the operations in connection with such proposed use will not be more objectionable to nearby properties by reason of noise, fumes, vibration or flashing lights than would be the operations of any specifically permitted use in that zoning district.
(g)
That the uses and site plans comply with applicable district regulations and other general and special controls contained in this chapter.
(h)
That the proposed use or site plan will not have an adverse impact upon the character or integrity of any land use within the immediate vicinity having unique cultural, historical, geographical, architectural or similar characteristics.
(i)
That the proposed use or site plan shall be developed harmoniously within the visual and physical context of the immediate environment.
(j)
That the proposed use or site plan shall be developed in such a way as to ensure maximum amenities available to the site based upon the consideration of the functional requirements of the proposed uses.
(k)
That the proposed use or activity would be developed in such a way as to not impede the development or redevelopment of land use within the general vicinity or adversely affect existing land use within close proximity to the subject site.
(l)
That the proposed use is adequately served with water, sewer and drainage facilities; that the addition of the proposed use will not create an unreasonable burden on public facilities.
(m)
That the proposed use will not create any sanitary or surface water problems on site or on adjoining land or streams.
(n)
Traffic controls. That traffic controls for vehicular and pedestrian movement are designed to protect the safety of the general public and the occupants, employees, attendants and other persons for whose benefit the use is intended. In making this determination, the Planning Board shall review but need not be limited to the following considerations:
[Amended 4-8-2013 by L.L. No. 1-2013]
[1]
The location and adequacy of parking and loading facilities.
[2]
Pedestrian rights-of-way.
[3]
Traffic regulatory devices.
[4]
The location, number and design of points of ingress.
[5]
Accessibility of emergency vehicles with particular emphasis on proximity of structures, no-parking or no-loading zones or areas and provisions for turning and free movement.
[6]
Storage facilities for snow.
[7]
Age and mobility of all persons for whose benefit the use is intended.
[8]
Speed limits upon and general character of public highways in close proximity.
(o)
That the proposed use will be provided with adequate supporting services, such as fire and police protection, public and private utilities and all other supporting governmental services necessary and appropriate to the proposed use.
§ 125-89 Decisions; notice.
In exercising the above-mentioned powers, the Zoning Board of Appeals may, in conformity with the provisions of this chapter, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination, including a stop order or orders to cease and desist, as ought to be made. Notice of such decision shall forthwith be given to all parties of interest.
§ 125-90 Applicability.
Appeals to the Zoning Board of Appeals may be taken by any person or Town official aggrieved or affected by any provision of this chapter or by any decision including any order to stop, cease and desist issued by the Zoning Officer in enforcing the provisions of this chapter.
§ 125-91 Rules and procedures for filing appeals and applications.
A.
General rules and procedures for appeals and applications.
(1)
Any appeal shall be made by filing the same with the Zoning Officer within 30 days after the date of the Zoning Officer's adverse decision.
(2)
All appeals and applications made to the Zoning Board of Appeals shall be in writing on standard forms prescribed by the Zoning Board of Appeals.
(3)
All appeals and applications shall refer to the specific provisions of this chapter involved.
(4)
All appeals and applications shall set forth names and addresses of all adjoining owners, including those across public roads from the subject property.
B.
Appeals from alleged error. Appeals from alleged error of the Zoning Officer shall specify the alleged error, the section or sections of this chapter to which it pertains and the interpretation thereof that is claimed.
C.
Variance appeals. Appeals for variance from the strict application of this chapter shall include the zoning permit application denied by the Zoning Officer, together with a statement with any supporting evidence regarding the requirements listed in § 125-87.
D.
Special permit applications. Applications for special permits shall include a zoning permit application with all information required therein and a statement with any supporting evidence regarding the merits of the proposed use at the proposed location and how the proposal complies with the general and specific requirements of this chapter.
§ 125-92 (Reserved) [1]
[1]
Editor’s Note: Former § 125-92, Planning Board review of special permit applications, as amended, was repealed 5-11-2015 by L.L. No. 1-2015.
§ 125-93 Appeals to Supreme Court.
A.
Any person or persons jointly or severally aggrieved by a decision of the Zoning Board of Appeals or any officer, department, Board or Bureau of the Town of Brutus may apply to the Supreme Court for a 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 in the office of the Town Clerk. The Court may take evidence or appoint a referee to take such evidence as it may direct and report the same with his 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 the special term shall itself dispose of the case on the merits, determining all questions which may be presented for determination.
B.
Costs shall not be allowed against the Zoning 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.
All issues in any proceedings under this section shall have preference over all other civil actions and proceedings.
§ 125-94 Fees.
Appeals and applications before the Zoning Board of Appeals shall be accompanied by a payment to the Town of Brutus in accordance with a fee schedule adopted by resolution of the Town Board upon enactment of this chapter, or as such schedule may be amended by resolution of the Town Board.