Chatham City Zoning Code
ARTICLE XIV
Zoning Board of Appeals
§ 110-57 Organization.
B.
Method of appointment, terms of office and tenure of members. The method of appointment, terms of office and tenure of members shall be prescribed by the Village Law.
C.
Staff. The Board shall appoint a Secretary and/or other staff assistance as may be necessary and shall prescribe their duties.
D.
Powers and duties. The Board shall have all the powers and duties prescribed by law and by this chapter.
§ 110-58 General procedure.
A.
The Board shall adopt and file in the Village Clerk's office such rules of procedure as it may deem necessary for the proper exercise of its responsibilities with respect to this chapter and its subsequent amendments.
B.
All meetings of the Board shall be open to the public.
C.
Prior to taking any action in relation to its powers and duties, the Board shall hold a public hearing, after public notice has been provided as required by law. All interested parties shall be given the opportunity to be heard at such hearing.
D.
Every decision by the Board shall be by resolution and shall contain a full record of the findings of the Board in the particular case.
E.
A record, subject to public inspection, shall be established on all variances granted pursuant to action of the Board of Appeals under this chapter.
F.
The Board shall keep minutes of its proceedings for public record showing the vote of each member upon every question or, if absent or failing to vote, indicating such fact.
§ 110-59 Form of applications.
Applications for any action by the Board shall be submitted in form specified in this chapter or as required by the Board and filed in the Village Clerk's office.
§ 110-60 Public hearing.
[Amended 11-4-2019 by L.L. No. 2-2019]
A.
The Board shall fix a time and place for a public hearing thereon and shall provide for giving notice pursuant to the Village Law. Notification shall include sending notice by mail to the parties involved and the publishing of a notice in a newspaper of general circulation in the Village, not less than five days prior to the date of such hearing. The cost of publishing and mailing such notice shall be charged to the applicant.
B.
The applicant shall provide notice of the public hearing to the owners of all property abutting the subject property and all other owners within 100 feet or such additional distances that the Zoning Board of Appeals may deem advisable, not to exceed 400 feet from the subject property, from the exterior boundaries of the lot or parcel involved in the application. Notice shall be mailed by the applicant via certified mail at least 10 calendar days prior to the hearing, with compliance to this notification procedure certified by a U.S. Postal receipt. The names and addresses of the owners to be notified shall be taken from the last completed tax roll of the Village.
§ 110-61 Referral to Village Planning Board.
The Board shall transmit, at least 14 days before the date of hearing held in connection with an appeal or application submitted to the Board, a copy of such appeal or application and shall request that the Planning Board submit to the Board its advisory opinion on such appeal or application. The Planning Board shall submit a report of such advisory opinion prior to such public hearing.
§ 110-62 Referral to Columbia County Planning Board.
A.
The Board shall mail to the Columbia County Planning Board a notice of public hearing and a description of the applicant's proposal in any case where the land involved in an application is within 500 feet of:
(1)
The boundary of any other municipality.
(2)
Any state or county park or other recreation area.
(3)
The right-of-way of any state or county highway.
(4)
The right-of-way of any stream or drainage channel owned by the county or for which the county has established channel lines.
(5)
The boundary of any state- or county-owned land on which a public building or institution is situated.
B.
No action shall be taken on applications referred to the Columbia County Planning Board until such Board's recommendation has been received or 30 days have elapsed after the Board received the full statement of the applicant's proposal.
§ 110-63 Expiration of zoning permits.
Zoning permits authorized by the Board of Appeals and actions for the issuance of a zoning permit shall be obtained within 90 days and shall automatically expire if construction under the permit is not started within 90 days of issuance. Extensions of these periods may be granted by the Board of Appeals where good cause is shown. Any permit not exercised within these time frames is void.
§ 110-64 Appeals.
The Board shall, upon appeal, hear and decide:
A.
Any matter where the applicant alleges that the Building Inspector was in error in refusing to issue a zoning permit or certificate of occupancy as a result of misinterpreting the meaning, intent or application of any section or part of this chapter.
B.
Any matter where the applicant alleges that the Building Inspector was in error in his determination as to the exact location of a district boundary line on the Zoning Map that forms a part of this chapter.
C.
Any matter which the Building Inspector appeals on grounds or doubt as to the meaning or intent of any provision of this chapter or as to the location of a district boundary line on the Zoning Map.
§ 110-65 Appeals procedure.
A.
Notice of appeal shall be filed with the Building Inspector and the Secretary to the Board, in writing, in a form required by such Board within 60 days of the date of the action appealed from, specifying the grounds thereof.
B.
Upon filing of a notice of appeal and the payment of the required filing fee by the applicant, the Building Inspector shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken.
C.
The Board shall hold a public hearing of each appeal within 45 days of the receipt of a complete application and the applicant shall be given notice and at which hearing the applicant shall appear in person or by agent or by attorney. The Board shall give public notice of such hearing in the official newspaper at least five days prior to the date thereof. The cost of giving such notice shall be charged to the applicant.
D.
An appeal stays all proceedings in furtherance of the action appealed from unless the Building Inspector certifies to the Board, after notice of appeal shall have been filed with him, that by reason of facts stated in the certificate a stay would, in his 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 Board or by a court of record on application, on notice to the Building Inspector and on due cause shown.
E.
Following public notice and hearing, the Board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination as, in its opinion, ought to be made in the premises and to that end shall have all the power of the Building Inspector. If the action by the Board is to reverse the action of the Building Inspector in whole, the filing fee shall be refunded to the applicant. The Board shall decide the same within 62 days following the final hearing.
§ 110-66 Relief from decisions.
A.
Any person or persons jointly or severally aggrieved by any decision of the Board may apply to the Supreme Court for relief by a proceeding under Article 78 of the Civil Practice Law and Rules of the State of New York. Such proceeding shall be governed by the provisions of Article 78 of the Civil Practice Law and Rules, except that:
(1)
It must be instituted as therein provided within 30 days after filing of a decision in the office of the Village Clerk.
(2)
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 conclusion of law if it shall appear that testimony is necessary for the proper disposition of the matter.
(3)
The Court, at special term, shall itself dispose of the case on the merits, determining all questions which may be presented by determination.
B.
Costs shall not be allowed against the Board 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.
§ 110-67 Compliance with special conditions.
Compliance by the applicant and/or owner of the property with all conditions which are placed on the grant of a variance by the Zoning Board of Appeals, as well as all other provisions of this Zoning Chapter, shall be an express condition of the continuing validity of such variance. The failure of the applicant and/or owner to comply with such conditions or provisions after notice and opportunity to comply shall constitute grounds for a rehearing on the underlying variance, and upon such rehearing, the Zoning Board of Appeals shall be authorized to reaffirm, revoke, modify or amend the underlying variance.
§ 110-68 Variances.
A.
Delegation of authority. The Board shall have the power, in passing on appeals, where, as a result of exceptional physical conditions connected with a particular site, there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this chapter that would deprive the owner of the reasonable use of the land or building involved, to vary or modify the application of the regulations or provisions of this chapter.
B.
Use variances.
(1)
The Board of Appeals, on appeal from the decision or determination of the administrative officer charged with the enforcement of this chapter, shall have the power to grant use variances, authorizing a use of land which otherwise would not be allowed or would be prohibited by the terms of this chapter.
(2)
No use variance shall be granted without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship. In order to prove unnecessary hardship the applicant shall demonstrate to the Board of Appeals that for each and every permitted use under this chapter for the district in which the applicant's 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 after the essential character of the neighborhood.
(d)
The alleged hardship has not been self-created.
(3)
The Board of Appeals, in the granting of use variances, shall grant the minimum variance that it shall deem 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.
(4)
Any variance granted by the Board pursuant to this section shall be construed to be a nonconforming use.
C.
Area variances.
(1)
The Zoning Board of Appeals shall have the power, upon an appeal from a decision or determination of the administrative official charged with the enforcement of this chapter, to grant area variances from the area or dimensional requirements of this chapter.
(2)
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 benefits 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.
(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.
(3)
The 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.