Caroga Town City Zoning Code

ZONING BOARD

OF APPEALS

ORGANIZATION

ORGANIZATION:

Creation, Membership, Terms:
1. A Zoning Board of Appeals ("ZBA") is hereby established in accordance with Section 267 of New York State Town Law.
2. The Town Board shall designate the members of the Board and shall designate the Chairperson thereof.
3. The ZBA shall consist of five (5) members, each to serve a term of five (5) years and the terms shall be fixed as specified in Section 267 of the Town Law of New York State so that one member’s term expires each year.
4. The ZBA shall have one Alternate member, as designated by the Town Board. The Alternate member shall serve a term of one (1) year. The chairperson of the ZBA may designate an alternate to substitute for a member when such member is unable to participate on an application or matter before the ZBA. When so designated, the Alternate member shall possess all the powers and responsibilities of such member of the ZBA. Such designation shall be entered into the minutes of the initial ZBA meeting, at which the substitution is made. Said alternate shall continue to sit for any adjourned dates for applications presented to the ZBA for consideration when initially heard by the alternate board member so as to provide continuity with the application.
Meetings:
1. All meetings of the ZBA shall be held at the call of the Chairman and at such other times as a majority of the members of the full ZBA may determine.
2. All meetings shall be open to the public per Article 7 of the Public Officers Law and shall be conducted in accord with the guidelines established by the ZBA.
Records/Voting:
1. The ZBA shall keep minutes of its proceedings, including its examinations, findings and official actions.
2. The ZBA shall record the votes of each member upon every question put to vote or, if absent or failing to vote, indicating such fact.
3. The ZBA’s minutes shall fully set forth the reasons for the decisions of the ZBA and the findings of fact on which the decision was based.
4. The ZBA’s minutes shall be on file in the Office of the Town Clerk, together with all documents pertaining thereto.
5. The ZBA shall notify applicants, Town Clerk and the Planning Board of all official actions. All decisions of the ZBA must be filed with the Town Clerk within five (5) business days of the meeting and shall become a public record.
Voting:
1. The concurring vote of a majority of the full membership of the ZBA shall be required to constitute an official action.

POWERS AND DUTIES

POWERS AND DUTIES:

The ZBA shall have the following powers and duties prescribed by the Town Law and this Article.
1. General Authority:
  1. The ZBA 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 Code Enforcement Officer and to that end shall have all the powers of the Code Enforcement Officer from whose order, requirement, decision, interpretation or determination the appeal is taken.
2. Interpretations:
  1. The ZBA shall decide all appeals involving the interpretation of any provision of these regulations, including the determination of the exact location of any zoning district boundary, if there is uncertainty with respect thereto, or any other determination made in the administration or application of these regulations.
  2. All interpretations shall be considered and rendered by the ZBA only upon appeal following and based upon a determination made by the Code Enforcement Officer.
3. Variances:
  1. The ZBA, on appeal from a decision or determination of the Code Enforcement Officer, shall have the power to grant variances, as follows:
    1. Use Variances:
      1. A use variance is an authorization by the ZBA that allows a specified use in a zoning district where such specified use is not allowed.
      2. No use variance shall be granted by the ZBA without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship.
      3. In order to prove such unnecessary hardship, the applicant shall demonstrate to the ZBA that for each and every permitted use under the zoning regulations for the particular district where the property is located:
        
        That 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.
      4. The ZBA, when granting a use variance, shall grant the minimum variance 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.
    2. Area Variances:
      1. An area variance is an authorization by the ZBA that allows a departure from the dimensional requirements of the Zoning Ordinance.
      2. In making its determination, on an area variance application the ZBA 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 ZBA 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 ZBA, but shall not necessarily preclude the granting of the area variance.
      3. The ZBA, 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.
    3. Adirondack Park Agency (APA) Review Notification:
      1. The following variances shall be subject to Adirondack Park Agency review pursuant to Section 808(3) of the “Adirondack Park Agency Act” when outside an APA Hamlet land use area:
        
        Variances from local shoreline restrictions;
        
        Variances from the local controls governing intensity of development, such as minimum lot areas;
        
        Variances from use restrictions which would allow a use other than those on the classification of compatible use lists in the Adirondack Park Agency Act for the official map land use area in which it would be located; and
        
        Any other variances which involve the provision of the land use and development plan except variances from front, side or rear yards not involving shoreline.
      2. The Code Enforcement Officer shall provide written notice to the APA of any application for a variance subject to APA review (referred to in subdivision (A) of this section) within fifteen (15) days of receipt or within such period as may be agreed upon. The Agency may request additional pertinent information.
      3. In reviewing applications for variances which are subject to Agency review, the ZBA shall consider the criteria in Sections 808(3) and 806(3) of the Adirondack Park Agency Act and 9 NYCRR Part 576 (Standards for the Review of Variances Pursuant to the Adirondack Park Agency Act), in addition to the criteria for variance approval set forth above.
      4. The Code Enforcement Officer shall submit a copy to the Adirondack Park Agency together with such pertinent information as the Agency reasonably deems necessary. Any variance granted or granted with condition(s) subject to Agency review in accordance with subdivision a above shall not be effective until thirty (30) days after such notice to the Agency. If within such thirty (30) day period the Agency determines that such variance involves the provisions of the Adirondack Park Land Use and Development Plan as approved in the local land use program, including the shoreline restriction of the Adirondack Park Agency Act and was not based on the appropriate statutory basis of practical difficulties or unnecessary hardships, the Agency may reverse the ZBA’s determination to grant the variance.
      5. The ZBA may seek an advisory opinion of the Agency on any such variance prior to acting thereon.
4. Imposition of Conditions:
  1. The ZBA 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.
  2. Such conditions shall be consistent with the spirit and intent of this Ordinance, and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.

APPEAL PROCEDURE

APPEAL PROCEDURE:

Who Can Appeal:
1. Appeals may only be taken by:
  1. Any person aggrieved by a written decision, determination, order, requirement or interpretation made by the Code Enforcement Officer.
  2. The Town Code Enforcement Officer or any other officer, department, board or bureau of the Town charged with administering and enforcing the Zoning Ordinance.
2. The determination of whether an applicant is aggrieved shall be determined by the ZBA, after hearing, as part of the appeal process set forth below.
Appeal Process:
1. Time to Appeal:
  1. An appeal from an order, requirement, decision, interpretation or determination of the Code Enforcement Officer, shall be taken within 60 days after the filing in the Town Clerk’s office of such order, requirement, decision, interpretation or determination of the Code Enforcement Officer.
  2. In the case of an application for an area variance from a Site Plan, Special Use Permit or Subdivision Application before the Planning Board, the appeal shall be taken within 60 days of the date that the Planning Board determined that an area variance is required.
2. Placement on Board Agenda:
  1. In order for an appeal to be placed on the ZBA’s meeting agenda, the required application materials shall be submitted to the Town Clerk at least seven (7) calendar days prior to the date of the ZBA’s meeting.
3. Application:
  1. In order for an appeal to be commenced, the applicant shall submit at least 1 original and 5 copies of an Appeal Application containing the following information:
    1. The Zoning Board of Appeal Application Form.
    2. A Plot Plan drawn to scale with accurate dimensions providing information sufficient to enable the ZBA to make an informed decision.
    3. A narrative describing the existing and/or proposed use and operation together with the justification for the requested an interpretation or variance using the criteria identified in Section II, (c)(1) [sic, Section II, (3)(a)(1)] and (2) of this Article.
    4. A short-form or long-form SEQRA Environmental Assessment Form (EAF) with Part 1 fully completed by the applicant (a long-form EAF is required for all SEQRA Type I actions. However, the ZBA may require a long-form EAF for Unlisted Actions if the Board deems that the additional information contained on the long-form would be helpful and appropriate under the circumstances of the appeal).
    5. The Application Fee as established by the Town Board.
  2. The ZBA may waive or add any requirements for an application submission it deems appropriate in order to accomplish the purposes set forth herein.
4. Determining Completeness of Appeal Application:
  1. At the first meeting at which an Appeal Application is first presented, the ZBA shall determine whether the Appeal Application is complete for purposes of commencing the review process.
  2. If an Appeal Application is determined to be incomplete, the ZBA shall notify the applicant, in writing, as to what aspects of the Application are lacking or insufficient or what additional information will be required to deem the Application complete.
  3. The time-frames for ZBA action on an Appeal Application shall not commence until the ZBA determines that an Application is complete.
5. Code Enforcement Officer’s File Information:
  1. Upon submission of an Appeals Application, the Code Enforcement Officer shall forward to the ZBA a complete copy of the file on the property that is the subject of the appeal and all the papers constituting the record upon which the action appealed from was taken.
6. Stay Upon Appeal:
  1. An Appeal Application shall stop all proceedings relating to the action appealed from, unless the Code Enforcement Officer certifies, in writing, to the ZBA that by reason of facts stated in the certificate a stay would, in his or her opinion, cause imminent peril to life or property.
  2. In that case, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the ZBA or by a Court of competent jurisdiction.
  3. The application for a stay shall be on notice to the Code Enforcement Officer and with due cause shown.
7. State Environmental Quality Review Act (SEQR):
  1. The ZBA shall comply with the provisions of SEQR.
  2. The following actions do not require review under SEQR:
    - Granting of individual setback and lot line variances
    - Appeals involving only interpretations of the Zoning Law and not variances other than those area variances previously mentioned.
8. Town Planning Board Referral:
  1. The ZBA, in its discretion, may request the Planning Board make a recommendation on an Appeal Application. Such recommendation shall become part of the record but shall not be binding upon the ZBA.
9. Town Highway Superintendent Referral:
  1. The ZBA shall seek the input and recommendation of the Town Highway Superintendent on any appeal application that may impact a Town Road or the setback from the maintained edge of a Town Road. The Town Highway Superintendent shall respond to the ZBA within thirty (30) days.
10. County Planning Board Referral:
  1. All completed use variance applications shall be referred to the County Planning Board pursuant to General Municipal Law, Section 239-m.
  2. No action shall be taken on applications referred to the County Planning Board until its recommendation has been received, or thirty (30) days have elapsed after its receipt of the complete application, unless the County and Town agree to an extension beyond the 30-day requirement for the County Planning Board’s review.
  3. A majority-plus-one vote of the ZBA shall be required to grant any use 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.
11. Public Hearing:
  1. Schedule:
    1. The ZBA shall schedule and hold a public hearing on the complete Appeal Application within 62 days of the date the application was deemed complete by the ZBA.
    2. The time in which a public hearing shall be held may be lengthened only upon consent of the Applicant and the ZBA.
  2. Public Notice:
    1. At least five (5) days prior to the date of such hearing, the ZBA shall give public notice by causing the publication of a notice of such hearing in the official newspaper and by mailing a notice thereof to all adjoining property owners and to any other property owners in the affected area that the ZBA may require to be notified.
  3. §239 Review:
    1. In the case of a hearing held on an Appeal Application on a property that is located within 500 feet of an adjacent municipality, the ZBA shall give notice of the hearing to the clerk of the adjacent municipality, by either mail or electronic transmission, at least 10 days prior to the hearing pursuant to General Municipal Law, Section 239.
  4. Expenses:
    1. The cost of sending or publishing any notices relating to Appeal Applications, or a reasonable fee relating thereto, shall be borne by the appealing party and shall be paid to the ZBA prior to the hearing of such appeal.
  5. Testimony:
    1. Any party may appear in person, or by agent or attorney, at a public hearing. The ZBA may require testimony to be made under oath.
  6. Time of Decision:
    1. The ZBA shall decide all appeals within sixty-two (62) days after the conduct of a public hearing. The timeframe may be extended by mutual consent of the Applicant and the ZBA.
  7. Filing of Decision:
    1. The decision of the ZBA shall be filed in the Office of the Town Clerk within five (5) business days after the day such decision is rendered, and a copy thereof mailed to the applicant.
  8. Rehearing:
    1. A motion for the ZBA to hold a rehearing to review any order, decision or determination of the ZBA not previously reheard may be made by any member of the ZBA.
    2. 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.
    3. Upon such rehearing the ZBA 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.
  9. Default Denial of Appeals:
    1. In exercising its appellate jurisdiction only, if an affirmative vote of a majority of all members of the ZBA is not attained on a motion or resolution to grant a variance or reverse any order, requirement, decision or determination of the Code Enforcement Officer within the time allowed by paragraph (f) of this Section, the appeal is denied.
    2. The ZBA 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 as set forth in Paragraph (h) of this Section.
Expiration of Appeal Decision:
1. Termination or Lapse of Variance.
  1. Unless otherwise specified by the ZBA, all ZBA decisions including variances shall expire if the appellant fails to obtain any necessary building or other permit or approval within 1 year of the date of the ZBA’s decision.
  2. An appellant may receive one, 1-year renewal of any ZBA decision including variances. The appellant must:
    1. Apply, in writing, to the Code Enforcement Officer within thirty (30) calendar days of the expiration date of a ZBA’s decision.
    2. Pay fee to the Town Clerk.
2. Interpretations Binding:
  1. Interpretations made by the ZBA shall not lapse unless reconsidered by the ZBA and shall be binding on all Boards and officials of the Town.