Clarence Town City Zoning Code
ARTICLE XVI
Administration
§ 229-149 Purpose.
This administration section explains the process for reviewing, enforcing and amending the provisions and requirements of this chapter. Procedural responsibility for these actions shall reside with the Planning and Zoning Department and the Building Department.
§ 229-150 Zoning permit process.
The review process associated with the issuance of permits under the Zoning Law will take two different tracks. The first process involves uses that are permitted as of right in a zoning classification and would not require a formalized review process. Applicants for such permits may proceed directly to the Town of Clarence Building Department and apply for a zoning/building permit for such uses. In similar fashion, interior remodeling within a previously approved commercial/industrial use that does not involve a change in use may proceed to apply for a zoning/building permit through the Building Department.
All other uses will require approval of the Town Board and/or Planning Board. Depending upon the complexity of the application, the Town Board approval process will vary. Generally, all proposed uses of previously unimproved property shall be initially reviewed by the Town Board, acting as gatekeeper, to determine the type of review required (e.g., site plan, special exception use permit, temporary conditional permit, etc.), compatibility with the adopted Master Plan and to identify any areas of concern before being forwarded for detailed review and approval by the Planning Board. The Town Board shall have final approval authority for special exception use permits, temporary conditional permits, and open space design and incentive lot subdivisions and may refer such matters to the Planning Board before taking a final action. The following flow chart identifies the typical review process for applications forwarded by the Town Board for further detailed review.
[Amended 12-1-2010 by L.L. No. 5-2010]
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§ 229-151 Site plan review requirements.
Statement of intent. The purpose of these requirements is to promote orderly development in the Town of Clarence and to ensure that uses are developed in a manner harmonious with surrounding properties. To achieve these ends and to assure compliance with all applicable requirements of this chapter, all applications for permits shall be submitted on forms as required and available in the Planning and Zoning Department and the Building and Engineering Department that shall include a site plan of the property to be developed and a boundary survey stamped by a New York State licensed land surveyor.
Development and uses requiring a site plan. Site plans drawn to scale shall be required for all uses and shall be included in all applications for a permit. Site plans may not be required for the following uses, as determined by the Director of Community Development, Building Inspector or designee:
Accessory structures (other than for single- or two-family dwelling units).
Any enlargement of a principal building by less than 10% of its existing size, provided such enlargement would not result in a requirement for additional parking or encroachment in a setback area.
A change in principal use where such change would not result in a change in lot coverage, off-street parking, access or other external site characteristics.
Procedure for preparation:
Site plans or any portion thereof shall be prepared by an engineer, architect, landscape architect or land surveyor who is authorized by the State of New York to practice as such.
Site plans shall be prepared to a scale as deemed appropriate by the Town department with jurisdiction.
A site plan may be prepared in one or more sheets to show clearly the information required by this section and to facilitate the review and approval of the site plan.
All horizontal dimensions shown on the site plan shall be in feet and decimal fractions of a foot to the closest 0.00 foot, and all bearings shall be in degrees, minutes and seconds.
Every site plan shall show the name and address of the owner or developer, the North arrow, the date, the scale of the drawing, and the number of sheets. An application form requesting an action from the Town shall be made available to any applicant and completed with the submission of a site plan for review. All applicable review fees (Chapter 99 of the Code of the Town of Clarence) must be paid along with the application.
Seven copies of the site plan shall be submitted to the Planning and Zoning Office for review for projects requiring Planning Board review. The Director of Community Development or his designee may request additional copies for outside agency review during the state environmental quality review process.
Required information on site plans for concept plan review.
Location of the tract on an insert map at a scale of not less than one inch equal to 2,000 feet, indicating the scale, the North point, and such information as the names and numbers of adjoining roads, streams, subdivisions or other landmarks sufficient to clearly identify the location of the property.
A boundary survey of the tract by bearings and distances certified by a licensed land surveyor or engineer. The owner of the property must give written authorization for the project, if different from the applicant, to the Planning and Zoning Department. Include land title, deed description, and any real estate contracts involving any lands to be included in the project scope, including any deed restrictions.
The proposed location, general use, number of floors, height and floor area for each building and, where applicable, the number, size and type of dwelling units. Indicate the present use of all adjoining properties, including building footprints within 500 feet of the project site.
All existing property lines; existing streets and easements, their names, numbers and widths; the location and size of existing sanitary and storm sewers, gas lines, water mains, culverts, and other utilities and their easements; existing buildings; existing watercourses; and any other prominent physical features on or adjoining the tract.
Show the current zoning classification and zoning district boundaries on adjoining properties. Note any proposed changes in zoning.
A topographical survey that shows floodplains, wetlands, soils, existing streams and ditches with base flood elevations, existing elevations and proposed elevations clearly illustrated. Contour lines should be no greater than one-foot intervals.
All off-street loading spaces, parking and walkways. indicating the type of surfacing, size, angle of stalls, width of aisles, and a specific schedule showing the number of parking spaces provided. Also show any areas that may be used for future parking expansion, if needed.
The location of wooded areas on the property and the location of trees and wooded areas that will be retained. Spotted tree surveys shall be required for any tree over six inches in diameter as measured at diameter breast height (DBH). Trees shall be identified by species type.
[Amended 2-14-2007 by L.L. No. 1-2007]
Required information on site plans for development plan review:
The location, character, size, height and orientation of proposed signs and outdoor lighting systems.
A detailed landscape plan that identifies all plant species by number and type that includes both preconstruction and postconstruction vegetation.
Design plans are to be submitted in an organized plan set with a title sheet to include project name, project location map, engineering/architectural firm name, engineering/architectural firm contact information, submittal date, list of drawings and owner/developer contact information. All drawing sheets to have original stamps and signatures.
Legal boundary survey stamped and signed by a New York State licensed land surveyor showing entire development parcel and adjacent properties within 200 feet, including reputed owner information for all immediately adjacent properties.
Site layout plan and detail sheets to include, but not be limited to, proposed building location(s) with dimensions to property lines, all setbacks, paved areas, parking layout, sidewalk locations, berms, exterior lighting and all associated site details. The following information must be provided on the site plan for Building Department review: landscaping (see Town of Clarence Landscape Law[1] zoning, occupancy classification, construction type, building height, building area, proposed fire protection systems, frontage/area modification(s) (see Chapter 5 of Building Code[2]), finished floor elevation(s) and a basic floor plan including fire walls, fire barriers, fire partitions, stairways and exits.
[Amended 12-1-2010 by L.L. No. 5-2010]
Storm drainage and grading plans, profiles and detail sheets to include, but not be limited to, location of existing and proposed drainage structures (all structures to be numbered); length, size, slope, and material of proposed storm sewer piping; pipe inverts at all structures and end sections; high water elevation within storm water retention/detention basins; perimeter yard drainage with inlets at all property line intersections; storm drainage easements; proposed spot elevations; proposed elevation contours at one foot intervals; detention/retention basin cross sections; proposed perimeter swales with swale center line elevations; and all associated storm drainage and grading construction details.
Utility plans, profiles and detail sheets to include, but not be limited to, location of all existing and proposed utilities and their respective size and material (water mains and services, sanitary sewers, storm sewers, gas mains, cable, telephone, electricity lines); proposed backflow prevention device; proposed utility poles and all associated construction details.
Erosion and sedimentation control plans and detail sheets to include, but not be limited to, location of silt fencing; location of straw sediment traps; stabilized construction entrance; topsoil stockpile areas; limits of stripping; limits of grading; maintenance schedule and all associated construction details.
Engineer's report explaining the project in detail, including but not limited to existing site drainage condition hydrographs; proposed site drainage conditions hydrographs; stormwater detention requirement calculations; detention basin design criteria, including controlled-discharge calculations and storm drainage pipe-sizing calculations including perimeter yard drainage. The engineer's report must have the original stamp and signature of a professional engineer licensed in the State of New York.
A traffic control plan must be submitted that shows the location of all access drives within 1,000 feet of the proposed site. All proposed traffic control devices shall be shown on a site layout plan that includes safe pedestrian corridors throughout the site.
Compliance with other requirements and agencies. All features and elements of the site plan shall in all respects conform to all applicable provisions and standards of the general statutes of the State of New York; the laws of the Town of Clarence and Erie County; and the standards and requirements of the New York State Department of Transportation and the New York State Department of Health. Proof of all appropriate permits for utilities and other improvements must be submitted to the Town before development plan approval may be granted.
§ 229-152 Procedure for processing permits.
Applications for single- and two-family home building permits shall be submitted to the Building Inspector for review and issuance of a permit if it is determined that a project does not require additional review or is ministerial in nature. If the Building Inspector determines that the project will require discretionary approval of the Town Board, the application will be forwarded to the Planning and Zoning Office to further the review process.
The Director of Community Development, or his/her designee, shall review all site plans and boundary surveys submitted to the Planning and Zoning Office. The Director of Community Development, or his designee, shall verify the completeness and compliance of such plans and may circulate the plans to the relevant regional and Town agencies and officials for comments as to the proposed development's conformance to all applicable standards and requirements and whether approval of the site plan is recommended. The reviewing agencies and officials may include, but need not be limited to:
District Fire Chief via Fire Advisory Committee.
Town Engineer.
Erie County Water Authority.
Traffic Safety Committee.
Erie County Health Department.
Erie County Department of Environment and Planning.
Erie County Highway Department.
New York State Department of Transportation.
New York State Department of Environmental Conservation.
U.S. Soil Conservation Services, District Office.
Municipal Review Committee.
Once the Director of Community Development or his/her designee deems the plans to be complete in information provided and in compliance with all identified provisions, the item will be placed on the next agenda of the Town Board for review and consideration. At the Town Board's discretion, the plan may be referred to the Planning Board for review. The initial review by the Town Board shall identify if the proposal is consistent with the adopted Master Plan and the design is generally acceptable. The Town Board shall identify any specific concerns related to architectural style, landscape buffering and general use prior to forwarding the application for further review.
The Planning and Zoning Office must receive the complete plan with checklist at least 10 days prior to the Planning Board's next meeting date to place it on their agenda.
§ 229-153 Concept plan review and recommendation.
[Amended 12-1-2010 by L.L. No. 5-2010]
If a proposed action is forwarded by the Town Board, the Planning Board shall review the application and make a recommendation and/or a final determination, if the final determination is to be made by the Planning Board in accordance with § 229-150. The Planning Board shall have up to 45 days from its first meeting date to make such recommendation and/or determination. Alternatively, the Planning Board could request additional information of the applicant in order to aid it in its review of the application.
§ 229-154 Town Board review and consideration.
[Amended 2-14-2007 by L.L. No. 1-2007]
Concept plan approval will require Town Board approval only if rezoning of land is required as a part of the application or if major changes as identified by the Planning Board are incorporated into the concept recommendation by the Planning Board. A concept plan approval issued by the Planning Board or Town Board shall become null and void after two years if no action to further the review process has occurred.
§ 229-155 General site plan performance criteria.
All development proposals referred to the Planning Board for site plan review shall be assessed against the following criteria.
Site design. When reviewing a site plan, the structure(s) and the landscape should be viewed as a whole. All elements of the site plan shall be designed to function as a system which enhances the aesthetic quality of the site as well as uses on neighboring sites. A well functioning site is one where the processes taking place on site occur without damage or inconvenience to property or persons both on and off site.
Parking.
Design requirements:
Parking areas of all developments shall be designed so that sanitation, emergency and other public service vehicles can serve such developments without the necessity of backing unreasonable distances or making other dangerous or hazardous movements.
Every parking area shall be designed so that vehicles cannot extend beyond the perimeter of such area onto adjacent properties or public rights-of-way. Such areas shall also be designed so that vehicles do not extend over sidewalks or tend to bump against or damage any wall, vegetation or obstruction.
Circulation areas shall be designed so that vehicles can proceed safely without posing a danger to pedestrians or other vehicles and without interfering with parking areas.
Parking areas shall be graded and surfaced with material that will provide adequate protection against potholes, erosion and dust and in a manner that will not conflict with the proposed means of snow storage and/or removal.
The parking area shall be adequately defined for the proposed use by landscaping, curbing or similar devices. Parking space lines, signs and other traffic control devices shall be provided to meet the intentions of this chapter.
Parking areas shall be properly maintained in all respects.
Parking areas from adjoining properties may be designed for common access, joint use and maintenance, if there is written agreement between the property owners and the Planning Board determines that it would be beneficial to both uses and that there would be no deleterious effect on the overall traffic circulation patterns.
Lighting.
Adequate lighting shall be provided on a site to ensure safe movement of persons and vehicles and for security purposes. A detailed lighting plan showing proposed locations of all light standards and the specifications of the light intensity shall be noted on the plans. Lighting standards shall be of a type approved by the Planning Board and Town Board. All lighting shall be designed and arranged so as to minimize glare and reflection on adjacent properties. No lighting fixtures in excess of 100 watts shall be installed without specific approval of the Town Board.
[Amended 2-14-2007 by L.L. No. 1-2007]
The following design standards shall be followed on all site development plans:
The style of the light and light standard should be consistent with the architectural style of the principal building.
The maximum height of freestanding lights shall not exceed the height of the principal building or 20 feet, whichever is greater.
All lights should be shielded to restrict the maximum apex angle of the cone of illumination to 150°.
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Where lights along the property line will be visible to adjacent residents, the lights should be appropriately shielded.
Spotlight-type fixtures attached to buildings shall be avoided.
Freestanding lights should be located and protected to avoid being easily damaged by vehicles.
Lighting shall be located along street, parking areas, at intersections and where various types of circulation systems merge, intersect or split.
Pathways, stairways, sloping or rising paths, buildings entrances and exits should be illuminated.
Lighting should be provided where buildings are set back or offset.
§ 229-156 Development plan review and recommendation.
Upon receiving concept plan approval, an applicant may proceed to the development plan approval stage. For consideration of development plan approval, an applicant must submit required documentation to the Planning and Zoning Department.
The Planning and Zoning Department shall distribute the submitted application for review and comment to all involved Town departments and regulatory agencies. Upon receipt of all required information, as determined by the Planning Board, an application may be placed on the next available agenda of the Planning Board.
The Planning Board shall act on the development plans as submitted.
[Amended 12-1-2010 by L.L. No. 5-2010]
The body with final approval authority, either the Town Board or Planning Board, shall determine whether or not to approve the application as to architectural style and functional plan. In approving an application, said body may attach fair and reasonable conditions, which protect the public health and safety of the community and ensure compatibility to the existing character of the neighborhood. The applicant/petitioner shall be given reasonable opportunity to consider and respond to any additional requirements prior to approval, modification, or denial.
[Amended 12-1-2010 by L.L. No. 5-2010]
The body with final approval authority, either the Town Board or Planning Board, may approve the plan if it has evaluated an application and determined that:
[Amended 12-1-2010 by L.L. No. 5-2010]
The use meets all required specifications of the Zoning Law, and
The use will not materially endanger the public health or safety and will not substantially injure the value of adjoining property if located where proposed. Conditions, if any, placed on the plan by the Town Board shall be adequate to meet this requirement.
The burden of proof of producing evidence to support these findings (and to overcome any challenges that approval of the plan would be contrary to one or more of these findings) shall rest entirely with the landowner.
If the use or development for which the plan is submitted is a conditional use, the Town Board may approve the plan with the approval of the conditional use permit. In no case, however, may a plan be approved for a use or development which requires the issuance of a conditional use permit without the conditional use permit having first been issued.
A project approval shall be null and void, if, after two years from receiving development plan approval, action to commence construction has not occurred.
A building permit issued by the Town of Clarence Building Inspector shall expire one year after the date of issuance.
The establishment of a vested right on a piece of property for a plan shall not preclude the Town from establishing and enforcing on the property any additional regulations (adopted during the time the vested right was in effect) which are general in nature and applicable to all property subject to the regulations of this chapter.
§ 229-157 Zoning permit.
No building, sign or other structure (except as otherwise provided for in this chapter) shall be erected, moved, extended or enlarged or structurally altered (exemption: internal alterations and renovations which do not alter the footprint or height of a structure), nor shall the use conducted within the building change, nor shall any excavation or filling of any lot for the construction of any building be commenced until the Director of Community Development, Building Inspector or designee has issued a zoning permit for such work in accordance with a fee schedule established by the Town Board.
Expiration of zoning permit. Any zoning permit issued in accordance with this chapter will lapse and become invalid after 12 months of the date of issue or if the work authorized by it is suspended or abandoned for a period of at least one year.
Records.
The Planning and Zoning Office shall maintain a record of all zoning permits authorized by the Town Board and/or Planning Board on file at the Planning and Zoning Office, and copies shall be made available on request to interested parties.
[Amended 12-1-2010 by L.L. No. 5-2010]
The Building Department shall maintain a record of all building permits issued by the Building Department, and copies shall be made available on request to interested parties.
Conditions for approval. Zoning permits issued on the basis of dimensional plans approved by the Building Inspector, or designee, authorize only the use, arrangement and construction set forth in such approved plans and applications. Use, arrangement or construction which differs from that authorized shall be deemed a violation of this chapter and shall be punishable as indicated in this chapter.
Zoning permit not required. Notwithstanding any other provisions of this chapter, no zoning permit is necessary for the following uses:
Silos, corn cribs and other similar agriculture accessory uses (exclusive of barns).
Electric power, telephone, cable television, gas, water and sewer lines, wires or pipes, together with supporting poles or structures, located within a public easement for utilities.
Interior alterations of less than $10,000 in value that do not affect the integrity of the structure.
Routine maintenance and improvements, including roofing, window replacement, siding replacement, etc., that does not expand the exterior dimensions of a structure.
Mailboxes, newspaper boxes, birdhouses, flagpoles, pump covers and doghouses.
Uncovered decks on residential properties.
Establishing setbacks. When establishing measurements to meet the required front yards and structure setbacks, the measurement shall be taken from the property line to the building foundation line. In the case of a corner lot, both yards shall be considered front yards and shall meet the appropriate setback.
Attached garage provisions. A private garage or other accessory structure that is connected to a dwelling or structure becomes a part of the principal building rather than an accessory building and shall be included when determining required setbacks from adjacent lot and street lines. For zoning purposes, a garage shall not be required to have a setback distance from the principal building. A garage may not be erected in a required front yard.
Additional setback provisions. In determining the yard requirements of a lot, decks, porches, carports, chimneys or other similar attached structures are considered a part of the principal building. Setbacks are determined from the foundation, exclusive of overhangs.
Height exceptions. Maximum height requirements as set forth in specific zoning districts do not apply to silos, other such agricultural uses, flagpoles and church steeples.
Fees. A fee, as determined by the Town Board, shall be paid for each zoning permit issued. Costs of hearings, notices, postings, etc. shall be added to this fee.
§ 229-158 Certificate of occupancy.
No land shall be occupied or used and no building or structure shall be occupied or used, sewage system used, or changes made in the use, until a certificate of occupancy shall have been issued by the Building Inspector stating that the buildings or proposed use thereof complies with the provisions of this chapter. The Code Enforcement Officer shall refer all requests for all changes in use, as herein described, to the Town Board for approval prior to issuing a permit. A change in use shall include any change from nonresidential to residential use; any change which increases the number of dwelling units in a building or structure; any changes from agriculture or residential use to a business use; any change from a business, commercial or industrial use to a different business, commercial or industrial use; or the reuse or reopening of any building or premises after the same has been closed for one year or more.
[Amended 12-1-2010 by L.L. No. 5-2010]
A record of all certificates of occupancy shall be kept on file in the office of the Town of Clarence Building Department and copies shall be furnished, on request, to all interested parties. If a certificate of occupancy is denied, the reason for such denial shall be specified in writing and provided to the applicant.
§ 229-159 Complaints regarding violations.
Whenever a violation of this chapter occurs, or is alleged to have occurred, any person may file a written complaint. Any written complaint stating fully the cause and basis thereof shall be filed with the Planning and Zoning Office or the Building and Engineering Office. Authorized representatives, so appointed by the Town Board, shall properly record such complaint, immediately investigate, and take action as provided by this chapter.
§ 229-160 Enforcement.
If the Director of Community Development, Building Inspector or the Zoning Code Enforcement Officer finds that any of the provisions of the chapter are being violated, he/she or his/her designee shall follow the procedures set forth in the Town of Clarence Prosecution Manual. Such provisions call for a notification, in writing, to the owner of the property upon which such violation is located, indicating the nature of the violation and order that necessary actions be taken to correct the deficiency. He/she shall order discontinuance of illegal uses of land, buildings or structures; removal of illegal buildings or structures or of illegal additions, alterations or structural changes; and discontinuance of any illegal work being done. The Director of Community Development, Building Inspector or designee shall take any other action authorized by this chapter to ensure its compliance.
Additional written notices of violation may be sent by the Director of Community Development, Building Inspector, or designee at his/her discretion. The final written notice (such final notice may be the initial written notice) shall state the action which the Director of Community Development, Building Inspector or designee intends to take if the violation is not corrected. Upon failure of the property owner to correct any violation of this chapter, the enforcement officer will cause to be issued an appearance ticket for local justice court action.
§ 229-161 Penalties.
Any person, firm or corporation convicted of violating the provisions of this chapter shall, upon conviction, be guilty of a violation and shall be fined an amount not to exceed $250 and/or imprisoned for a period not to exceed 30 days. Each day of violation shall be considered a separate offense, provided that the violation of this chapter is not corrected within 30 days after notice of said violation is given.
Any taxpayer of the Town of Clarence may seek citizen enforcement remedy under § 268(2) of the Town Law for unlawful construction or use of any building, structure or land, or any illegal subdivision.
Any property owner in violation of this chapter or other local laws regarding land use, including but not limited to Chapters 8, 67, 69, 75, 79, 87, 93, 101, 107, 121, 123, 131, 135, 147, 173, 177, 181, 185, 187, 189, 193, 196, 209, and 217 of the Code of the Town of Clarence shall not be able to obtain a zoning permit under this chapter until the outstanding violation is corrected, unless the permit sought is to correct said violation.
In addition to the other remedies cited in this chapter for the enforcement of its provisions, and pursuant to New York state law, the regulations and standards in this chapter may be enforced via prosecution standards as adopted by the Town of Clarence.
§ 229-162 Nonconforming uses.
The purpose of this section is to regulate and limit the continued existence of uses and structures established prior to the effective date of this chapter (or any amendment subsequent thereto) that do not conform to this chapter. Any nonconformity created by a change in the classification of property or the text of these regulations shall be regulated by the provisions of this section. Many nonconformities may continue, but the provisions of this section are designed to curtail substantial investment in nonconformities and to bring about eventual elimination and/or lessen their impact upon surrounding conforming uses in order to preserve the integrity of the area in which they are located and the intent of this chapter.
Every structure or use not conforming to the regulations of the district in which it is located at the time of adoption of this chapter shall be a nonconforming use.
A nonconforming structure or use may not be altered, rebuilt or resumed except in conformity with the regulations for the district in which it is located.
A nonconforming use of a structure or land that has ceased for a consecutive period of 12 consecutive months may not be altered, rebuilt or resumed unless in conformity with this chapter.
A nonconforming use may be continued subsequent to adoption of this chapter but the structure shall not be enlarged in a fashion that increases its nonconformity.
A nonconforming use may be extended throughout any part(s) of a building manifestly arranged or designed for such use at the time of adoption of this chapter.
Nothing in this chapter shall be deemed to prevent the strengthening or restoring to a safe condition of any nonconforming structure declared unsafe by a duly designated official.
Nothing in this chapter shall be deemed to prevent, with proper permit, the reconstruction of a nonconforming structure to its original configuration when destroyed by fire or act of God and with review and approval by the Zoning Board of Appeals.
Whenever an area is transferred from a district of one classification to a district of a different classification, or amendments are adopted which change permitted uses or other regulatory measures governing such, the above regulations shall apply to nonconforming uses created by such transfer.
The Planned Unit Residential District (PURD) zoning classification shall be identified as a preexisting zoning classification. PURD projects have been previously approved as to design and land use by the Clarence Town Board. Amendments to these preexisting districts may be made by the Town Board in accordance with procedures as outlined in § 229-165 of this chapter, Zoning Code/Map amendments. Any amendments to a preexisting PURD district must be consistent with the adopted Master Plan and residential design requirements in the Town of Clarence Subdivision Law.[1]
§ 229-163 Zoning Board of Appeals.
The Zoning Board of Appeals (ZBA) shall have the authority to hear and decide appeals from any order, decision, determination or interpretation made pursuant to or regarding these regulations. The Zoning Board of Appeals shall have the authority to hear and decide applications for variances from the requirements of these regulations.
Membership in ZBA.
The Zoning Board of Appeals shall consist of five members and one alternate member, appointed by the Town Board. The alternate member, while attending any meeting of the Board and serving in the absence of any regular member, shall have and may exercise all the powers and duties of a regular member. Members shall be compensated at a rate as determined by the Town Board.
The terms of office of the members of the Zoning Board of Appeals shall be for overlapping terms of five years.
Vacancies occurring for any reason other than expiration of term shall be filled as soon as is reasonably possible after such vacancy occurs by the Town Board, and such appointment shall only be for the period of the unexpired term. Members may be removed for cause by the Town Board and upon written charges and after public hearing.
The Town Board shall appoint a Chairperson and Vice Chairperson of the Zoning Board of Appeals from the membership of the same Board.
Meetings, hearings and procedures of the ZBA:
All meetings and hearings shall be open to the public and shall be conducted in accordance with the procedures set forth in these regulations and by New York State Town Law and rules of procedure adopted by the Zoning Board of Appeals. Such rules of procedures may be amended by the Zoning Board of Appeals membership.
Any rules of procedure adopted by the Zoning Board of Appeals shall be kept on file at the Planning and Zoning Office and shall be made available to the public upon request.
Permanent records shall be kept on file for all proceedings of the Zoning Board of Appeals at the Planning and Zoning Office and shall be made available to the public upon request.
Staff. The Director of Community Development or his/her designee shall serve as staff to the Zoning Board of Appeals and shall provide technical assistance to the Zoning Board of Appeals as requested.
Initiation of appeals and variances.
An appeal may be initiated by any aggrieved party or by any officer, department or board of the Town of Clarence.
An application for a variance may be initiated only by the owner of the affected property, an agent authorized in writing to act on the owner's behalf, or a person having a written contractual interest in the affected property.
Administrative review, appeals and interpretation. The Zoning Board of Appeals shall hear and decide appeals from and review any order, requirement, decision, interpretation or citation made by the Director of Community Development or designee, Building Inspector or designee, or Town Board regarding any portion of this chapter and apply such interpretation to particular fact situations. In addition, the Director of Community Development or designee, Building Inspector or designee or Town Board may ask the Zoning Board of Appeals to interpret any portion of the Zoning Law.
The Zoning Board of Appeals may, after having held a public hearing on the matter, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed or make an interpretation of the Zoning Law.
The Zoning Board of Appeals shall have all the powers of the Director of Community Development, Building Inspector or designee, or Town Board in making any order, requirement, decision, interpretation or determination with reference to an appeal or petition.
An appeal may be made by any person who has received a ruling from the Director of Community Development or designee, Building Inspector or designee. An appeal to the Zoning Board of Appeals shall be made within 45 days of the decision, order, determination or interpretation made by the Zoning Enforcement Officer. The Zoning Enforcement Officer may make an appeal to the Zoning Board of Appeals at any time.
Variances. When practical difficulties, special conditions, or unnecessary hardships would result from carrying out the strict letter of this chapter, the Zoning Board of Appeals shall have the power to vary or modify any of the regulations or provisions of this chapter relating to the construction or alteration of buildings or structures or the use of land.
A "use variance" shall mean the authorization by the Zoning Board of Appeals for the use of land for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations.
No such 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 such unnecessary hardship, the applicant shall demonstrate to the Board of Appeals, for each and every permitted use under the zoning regulations for the particular district where the property is located:
That the applicant cannot earn 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.
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 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.
An "area variance" shall mean the authorization by the Zoning Board of Appeals for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations.
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 community by such grant. In making such determination the Board 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 Board of Appeals, but shall not necessarily preclude the granting of the area variance.
The Zoning Board of Appeals, in granting a variance, may prescribe appropriate conditions and safeguards in conformity with this chapter. Violation of such conditions and safeguards, when made a part of the terms under which a variance is granted, shall be deemed a violation of this chapter and shall be punishable as prescribed in this chapter.
Unless otherwise authorized by the Board of Appeals and included in its decision to grant a variance, any order of the Board of Appeals in granting a variance shall expire, if a building permit or certificate of occupancy (for a use for which a building permit is not required) has not been obtained within one year from the date of its decision.
§ 229-164 Planning Board.
[Amended 12-1-2010 by L.L. No. 5-2010]
A Planning Board is established to review projects and make final approvals on site plan reviews and changes in use; and make recommendations to the Town Board on matters referred by the Town Board, including but not limited to temporary conditional permits, special exception use permits, open space design and incentive lot subdivisions, and long-range planning and land use issues.
Membership. The Planning Board shall consist of seven full members and one alternate member. The Town Board shall appoint the members of the Planning Board on a staggered-term basis in conformance with Town Law. The Planning Board alternate shall be appointed on an annual basis. The alternate member, while attending any meeting of the Board and serving in the absence of any regular member, shall have and may exercise all of the powers and duties of a regular member. Members shall be compensated at a rate as determined by the Town Board.
Vacancies. Vacancies occurring for any reason other than expiration of term shall be filled by appointment of the Town Board and shall be for the period of the unexpired term.
Executive Committee. The Town Board shall appoint a Chairperson, Vice Chairperson and Second Vice Chairperson from the membership of the Planning Board. Collectively, such members shall constitute the Planning Board Executive Committee.
Meetings, hearings and procedures of the Planning Board. All meetings and hearings of the Planning Board and the Planning Board Executive Committee shall be open to the public and shall be conducted in accordance with the procedure set forth in these regulations and by New York State Town Law and rules and procedures established by the Planning Board. Such rules and procedures may be amended by the Planning Board membership.
Any rules of procedure adopted by the Planning Board shall be kept on file at the Planning and Zoning Office and shall be made available to the public upon request.
Permanent records shall be kept on file in the Planning and Zoning Office for all proceedings of the Town Planning Board and shall be made available to the public upon request.
The Planning Board, for matters associated with the Zoning Local Law, shall have final authority on site plan review including concept plans, development plans and changes in use and be a recommending body to the Town Board on other referred matters. In addition to concept and development plan reviews, the Planning Board shall make recommendations on special exception use permit applications and temporary conditional permit applications when directed by the Town Board. The Planning Board shall attach reasonable safeguards and conditions to uses, which might otherwise produce deleterious effects on the environment, neighborhood character, and/or the Town resident’s health, safety and welfare.
Staff. The Director of Community Development and Assistant Director of Community Development shall serve as staff to the Planning Board and shall provide technical assistance to the Planning Board, as requested.
§ 229-165 Zoning Code/Map amendments.
The purpose of this section is to set forth procedures for amending the text of these regulations and the zoning classification of land as shown on the Zoning Map. The purpose is not to relieve particular hardships, nor to confer special privileges or rights on any person, but only to make adjustments necessary in light of changed conditions or changes in public policy. This Zoning chapter shall act as an implementing tool for the Town's adopted Comprehensive Plan and all regulations and amendments must be in conformance with the adopted plan.
Authority. Upon compliance with the provisions of this section, the Town Board shall have the authority to amend or repeal the text of these regulations and the classification of any parcel of land, as indicated on the Zoning Map.
Initiation. Any amendment may be initiated by:
Filing of petitions; determination of completeness. For a reclassification of property proposed by any person or entity other than the Planning Board or Town Board or for petition to change the text of this chapter, such petition shall be on an application form prescribed by the Town Board and accompanied by the fee established by the Town Board. Said application form and fee shall be filed with the Planning and Zoning Office.
Content of application.
Each noncontiguous parcel of land for which rezoning is requested shall be deemed as a separate application, and said application fee shall accompany each application. For the purpose of this paragraph, land located and adjacent on either side to the rear and all property directly across any street or public right-of-way from the subject property shall be deemed to be contiguous.
Each application for a rezoning of land shall be accompanied by two copies of a map, drawn to scale, with the following information either shown on the map or accompanying it:
The subject property plus such additional property as to show the location of the subject property with reference to the nearest street intersection, stream or other feature easily identifiable on the ground. In addition, all property lines which abut the property and property owners' names and addresses of all contiguous properties shall be furnished.
If the property is in a subdivision of record, a map of such portion of the subdivision that would relate the subject property to the closest street intersection, and in addition, the name of the subdivision and the plat addition, the names and addresses of all adjoining property owners (as indicated on the most up-to-date tax listings) shall be furnished.
A survey of the property(ies) proposed for rezoning shall accompany the map.
The present and proposed zoning classification of the lot(s) in question.
The property identification number(s) of the lot(s) in question
An application for a change in the text of the chapter shall be made in duplicate, on an application form provided by the Town Board. The application shall contain a reference to the specific section, subsection, paragraph or item proposed to be changed, as well as the wording of the proposed change, and the reasons therefor.
Planning Board review and recommendations. Once a petition for rezoning is complete, the Director of Community Development shall refer the petition to the Town Board. The Town Board, prior to taking any action, shall refer the petition to the Planning Board for review and recommendation to the Town Board. The Planning Board shall have a maximum of 45 days from the date it first meets to make such recommendation unless an agreement between the applicant and the Planning Board stipulates additional time for review. If a recommendation is not made during said time period, the application shall be forwarded to the Town Board without a recommendation from the Planning Board.
If a recommendation is made to the Town Board by the Planning Board concerning a petition for rezoning, said recommendation shall be as follows:
Grant the rezoning as requested, or
Grant the rezoning with a reduction of the area requested, or
Grant the rezoning to a more restrictive general zoning district or districts, or
Grant the rezoning in conjunction with a change in the text of this chapter, or
Recommend that the application be denied.
Submittal and review periods. In order for an amendment to the Zoning chapter text or Map to be made in accordance with this section, a public hearing must first be held by the Town Board. Notification of the public hearing shall be as follows:
A notice shall be published in a newspaper having general circulation in the Town, to be published not less than 10 days nor more than 25 days prior to the date established for the hearing.
A notice of a proposed Zoning Map change shall be sent by first class mail by the Planning and Zoning Office to the affected property and to all contiguous property owners and other owners within 500 feet of the property proposed for amendment.
Town Board review and consideration.
In case of protest against an amendment, duly signed by the owners of 20% or more either of the area of the lots included in such proposed change or of those immediately adjacent thereto, either in the rear thereof or on either side thereof, extending 100 feet therefrom or of those directly opposite thereto extending 100 feet from the street frontage of such opposite lots, such amendment shall not become effective except by favorable vote of 4/5 of the Town Board.
Once the public hearing has been conducted, the Town Board shall render a decision on the petition. The decision of the Town Board shall be in the form of any of the various options listed in this section. Alternatively, the Town Board may send the application back to the Planning Board for further study and consideration. The petitioner shall have the right to withdraw his petition at any time prior to the final decision being rendered by the Town Board. The Town Board shall have the authority to call for additional public hearings on any amended petition brought before it. The forty-five-day Planning Board review period shall be in effect after the close of the first and any subsequent public hearings called for by the Town Board on a particular amendment.
Notification of decision. Once a public hearing has been held and closed and a final determination made by the Town Board, said decision shall be sent by first class mail by the Director of Community Development to the applicant and any persons at or before the public hearing who have indicated in writing to the Director of Community Development that they would like the decision mailed to them within five working days following the date of said decision. Similarly, notice shall be sent to the applicant in the same manner if the Town Board makes a decision to resubmit the petition to the Planning Board for further review.
Resubmission of petition.
The Town Board shall not review any applications for the same changes affecting the same property or any portion thereof until the expiration of one year from the date of such previous denial.
The Town Board may allow resubmission of such petition within said one-year period if it determines that, since the date of action on the prior petition:
There has been a significant change in the zoning district classification of an adjacent piece of property;
The Town Board has adopted a plan that changes public policy regarding how the property affected by the amendment should be developed;
Construction or expansion of a road, waterline, sewer line or other such facilities has occurred to serve the property and can comfortably accommodate the intensity of development allowed under the proposed classification; or
There has been some other extraordinary change in conditions or circumstances, outside the control of the petitioner, which justifies waiver of the one-year restriction on a new petition; this, however, shall not include a change in the ownership of the subject property.
§ 229-165.1 Annual adequate public facility review procedures.
[Added 6-27-2007 by L.L. No. 3-2007]
Fire and EMS level of service. On an annual basis, beginning one year after the effective date of this section, the Director shall submit to the Town Board a report regarding the capacity of the volunteer fire districts to address existing and projected demands from new residential and nonresidential development within the Town. The report shall:
Reflect coordination and input from the each of the volunteer fire districts;
Identify whether existing and planned fire protection and emergency medical service (EMS) facilities are or are anticipated to be adequate to serve the needs of existing and projected residents and employees in the Town; and
Be based on the level of service standards recognized by the Town for fire and EMS services.
Schools level of service. On an annual basis, beginning one year after the effective date of this section, the Director shall submit to the Town Board a report regarding the capacity of the school districts that serve residents of Clarence to address existing and projected demands from new residential development within the Town. The report shall:
Reflect coordination and input from the Clarence Central, Williamsville, and Akron School Districts, as appropriate;
Reflect the input of the Town on the CIP of the school districts, including those providing educational facilities capacity within the AEF Overlay District;
Identify whether existing and planned educational facilities are or are anticipated to be adequate to serve the needs of existing and projected residential developments in the Town; and
Be based on the level of service standards recognized by the Town and school districts.