Clinton Village City Zoning Code
ARTICLE XII
Zoning Board of Appeals
§ 260-39 Zoning Board of Appeals.
A Board of Appeals is hereby established in accordance with the provisions of the New York State Village Law. The Board of Appeals shall consist of five members, each to serve for a term of three years.
For the definitions of "use variance" and "area variance," see § 260-5, Definitions, of this chapter.
Appointment of members. The Mayor shall appoint the Board of Appeals and the Chairperson thereof, subject to the approval of the Board of Trustees. In the absence of a Chairperson, the Board of Appeals may designate a member to serve as Acting Chairperson. The Board of Trustees may provide for compensation to be paid to experts, clerks and a Secretary and provide for such other expenses as may be necessary and proper, not exceeding the appropriation made by the Board of Trustees for such purpose. In making such appointment, the Village Board of Trustees may require Board of Appeals members to complete training and continuing education courses in accordance with any local requirements for the training of such members.
Board of Trustees ineligible. No person who is a member of the Village Board of Trustees shall be eligible for membership on such Board of Appeals.
Terms of members first appointed. In the creation of a new Board of Appeals, or the reestablishment of terms of an existing Board, the appointment of members to the Board shall be of terms so fixed that one member's term shall expire at the end of the Village official year in which such members were initially appointed. The remaining members' terms shall be so fixed that one member's term shall expire at the end of each official year thereafter. At the expiration of each original member's appointment, the replacement member shall be appointed by the Board of Trustees for a term which shall be equal in years to the number of members of the Board.
Terms of members now in office. Members now holding office for terms which do not expire at the end of the year shall, upon the expiration of their term, hold office until the end of the year and their successors shall then be appointed for terms which shall be equal in years to the number of members of the Board.
Increasing membership. Any Board of Trustees may, by local law, increase a three member Board of Appeals to five members. Additional members shall be first appointed for single terms as provided by resolution in order that the terms of members shall expire in each of five successive years and their successors shall thereafter be appointed for full terms of five years. No such additional member shall take part in the consideration of any matter for which an application was on file with the Board of Appeals at the time of his or her appointment.
Decreasing membership. A Board of Trustees which has increased the number of members of the Board of Appeals to five may, by local law, decrease the number of members of the Board of Appeals to three to take effect upon the next two expirations of terms.
Vacancy in office. If a vacancy shall occur otherwise than by expiration of term, the Mayor shall appoint the new member for the unexpired term.
Removal of members. The Mayor shall have the power to remove, after public hearing, any member of the Zoning Board of Appeals for cause. Any Zoning Board of Appeals member may be removed for noncompliance with minimum requirements relating to meeting attendance and training as established by the Village Board of Trustees by local law.
Chairperson duties. All meetings of the Board of Appeals shall be held at the call of the Chairperson and at such other times as such Board may determine. Such Chairperson, or, in his or her absence, the Acting Chairperson, may administer oaths and compel the attendance of witnesses.
Alternate members.
A Village Board of Trustees may, by local law or as a part of the local law creating the Zoning Board of Appeals, establish alternate Zoning Board of Appeals member positions for purposes of substituting for a member in the event such member is unable to participate because of a conflict of interest. Alternate members of the Zoning Board of Appeals shall be appointed by the Mayor, subject to the approval of the Board of Trustees, for terms established by the Village Board of Trustees.
The Chairperson of the Zoning Board of Appeals may designate an alternate member to substitute for a member when such member is unable to participate because of a conflict of interest on an application or matter before the Board. When so designated, the alternate member shall possess all the powers and responsibilities of such member of the Board. Such designation shall be entered into the minutes of the initial Zoning Board of Appeals meeting at which the substitution is made.
All provisions of this section relating to Zoning Board of Appeals member training and continuing education, attendance, conflict of interest, compensation, eligibility, vacancy in office, removal, and service on other boards, shall also apply to alternate members.
§ 260-40 Board of Appeals procedure.
Meetings, minutes, and records. Meetings of the Board of Appeals shall be open to the public to the extent provided in Article 7 of the Public Officers Law. Such Board of Appeals shall keep minutes of its proceedings, showing the vote of each member upon every question, or, if absent or failing to vote, indicating such fact, and shall also keep records of its examinations and other official actions.
Filing requirements. Every rule, regulation, every amendment or repeal thereof, and every order, requirement, decision or determination of the Board of Appeals shall be filed in the office of the Village Clerk within five business days and shall be a public record.
Assistance to Board of Appeals. The Board shall have the authority to call upon any department, agency or employee of the Village for such assistance as shall be deemed necessary and as shall be authorized by the Village Board of Trustees. Such department, agency or employee may be reimbursed for any expenses incurred as a result of such assistance.
Hearing appeals. Unless otherwise provided by local law, the jurisdiction of the Board of Appeals shall be appellate only and shall be limited to hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation, or determination made by the administrative official charged with the enforcement of any local law adopted pursuant to this chapter. The concurring vote of a majority of the members of the Board of Appeals shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or to grant a use variance or area variance. Such appeal may be taken by any person aggrieved or by an officer, department, board or bureau of the Village.
Time of appeal. Such appeal shall be taken within 60 days after the filing in the Village Clerk's office of any order, requirement, decision, interpretation or determination of the administrative official charged with the enforcement of such local law by filing with such administrative official and with the Board of Appeals a notice of appeal, specifying the grounds thereof and the relief sought. The administrative official from whom the appeal is taken shall forthwith transmit to the Board of Appeals all the papers constituting the record upon which the action appealed from was taken.
Stay upon appeal. An appeal shall stay all proceedings in furtherance of the action appealed from, unless the administrative official charged with the enforcement of such local law, from whom the appeal is taken, certifies to the Board of Appeals, after the notice of appeal shall have been filed with the administrative official, that by reason of facts stated in the certificate a stay would, in his or her opinion, cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Board of Appeals or by a court of record on application, on notice to the administrative official from whom the appeal is taken and on due cause shown.
Hearing on appeal. The Board of Appeals shall fix a reasonable time for the hearing of the appeal or other matter referred to it and give public notice of such hearing by publication in a paper of general circulation in the Village at least five days prior to the date thereof. The cost of sending or publishing any notice relating to such appeal, or a reasonable fee relating thereto, shall be borne by the appealing party and shall be paid to the Board prior to the hearing of such appeal. Upon the hearing, any party may appear in person, or by agent or attorney.
Time of decision. The Board of Appeals shall decide upon the appeal within 62 days after the conduct of said hearing. The time within which the Board of Appeals must render its decision may be extended by mutual consent of the applicant and the Board.
Filing of decision and notice. The decision of the Board of Appeals on the appeal shall be filed in the office of the Village Clerk within five business days after the day such decision is rendered, and a copy thereof mailed to the applicant.
Notice to Park Commission or County Planning Board or agency or regional Planning Board. At least five days before such hearing, the Board of Appeals shall mail notices thereof to the parties, to the regional State Park Commission having jurisdiction over any state park or parkway within 500 feet of the property affected by such appeal and to the County Planning Board or agency or regional planning council as required by section 239m of the General Municipal Law, which notice shall be accompanied by a full statement of such proposed action, as defined in Subdivision 1 of § 239m of the General Municipal Law.
Compliance with SEQRA. The Board of Appeals shall comply with the provisions of the State Environmental Quality Review Act under Article 8 of the Environmental Conservation Law and its implementing regulation as codified in Title 6, Part 617, of the New York Codes, Rules and Regulations.
Rehearing. A motion for the Zoning Board of Appeals to hold a rehearing to review any order, decision or determination of the Board not previously reheard may be made by any member of the Board. 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. Upon such rehearing, the Board 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.
§ 260-41 Permitted action by Board of Appeals.
Orders, requirements, decisions, interpretations, and determinations. The Board of Appeals 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 administrative official charged with the enforcement of such local law and, to that end, shall have all the powers of the administrative official from whose order, requirement, decision, interpretation or determination the appeal is taken.
Use variances.
The Board of Appeals, on appeal from the decision or determination of the administrative officer charged with the enforcement of such local law, shall have the power to grant use variances, as defined herein.
No such use variance shall be granted by a Board of Appeals 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 that for each and every permitted use under the zoning regulations for the particular district where the property is located:
The 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;
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 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.
Area variances.
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 such local law, to grant area variances as defined herein.
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:
Whether an undesirable change will be produced in the character of the neighborhood or the granting of the area variance will create a detriment to nearby properties;
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 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.
Imposition of conditions. The Board of Appeals 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. Such conditions shall be consistent with the spirit and intent of this chapter, and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.
§ 260-42 Application for review by Supreme Court.
Application to Supreme Court by aggrieved persons. Any person or persons, jointly or severally aggrieved by any decision of the Zoning Board of Appeals or any officer, department, board or bureau or the Village, may apply to the Supreme Court for 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 of the Board in the office of the Village Clerk.
Costs of appeal. 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.
Preference of appeal to court. All issues in any proceeding under this section shall have preference over all other civil actions and proceedings.
Power of court. If, upon the hearing at the Supreme Court, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his or her findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review determining all questions which may be presented for determination.
§ 260-43 Remedies.
In case any building or structure is erected, constructed, reconstructed, altered, repaired, converted, or maintained; or any building, structure or land is used, or any land is divided into lots, blocks or sites in violation of this chapter or of any local law or other regulation made under authority conferred thereby, the proper local authorities of the Village, in addition to other remedies, may institute any appropriate action or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance, use or division of land, to restrain, correct or abate such violation, to prevent the occupancy of said building, structure or land or to prevent any illegal act, conduct, business or use in or about such premises. All issues in any action or proceeding for any of the purposes herein stated shall have preference over all other civil actions and proceedings.
§ 260-44 Conflict with other provisions.
Wherever the regulations made under authority of this chapter require a greater width of size of yards or courts, or require a lower height of building or less number of stories, or require a greater percentage of lot to be left unoccupied, or impose other higher standards than are required in any other statute or local law or regulation, the provisions of the regulations made under authority of this chapter shall govern. Wherever the provisions of any other statute or local ordinance or regulation require a greater width or size of yards or courts, or require a lower height of building or a less number of stories, or require a greater percentage of lot to be left unoccupied, or impose other higher standards than are required by the regulations made under authority of this chapter, the provisions of such statute, or local ordinance or regulation shall govern.