Cobleskill Village City Zoning Code
§ 160-16.2
Powers and duties.
A.
The Zoning Board of Appeals shall have all the powers and duties conferred by Village Law §§ 7-712-a and 7-712-b and this chapter.
B.
Appeal for interpretation.
(1)
Upon appeal from a decision, order, requirement, interpretation, or determination made by the Code Enforcement Officer or the Planning Board, the Zoning Board of Appeals shall have the power to decide any of the following questions:
(a)
The meaning of any portion of the text of this chapter or of any condition or requirement specified or made under the provisions of this chapter.
(b)
The exact location of any district boundary shown on the Zoning Map or the Historic District Overlay Map.
(2)
Pursuant to Village Law § 7-712-a, Subdivision 4, the ZBA is authorized to hear appeals only from an order, requirement, decision, interpretation, or determination made by the administrative official charged with enforcement of this chapter or the Planning Board. The Zoning Board of Appeals does not have authority to issue advisory opinions.
(3)
Upon appeal from a decision, order, requirement, or determination made by the Historic District Review Commission, the Zoning Board of Appeals shall have the power to decide only the question of whether the action appealed is beyond the discretion assigned to the Historic District Review Commission by Chapter 90 of the Village Code.
C.
Appeal for variance. Upon appeal from a decision of the Code Enforcement Officer or the Planning Board, the Zoning Board of Appeals shall have the power to grant variances only under the following circumstances:
(1)
For area variances.
(a)
The Zoning Board of Appeals shall consider 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 the community if the variance is granted. In reaching its decision, the Zoning Board of Appeals shall consider:
[1]
Whether an undesirable change will be produced in the neighborhood character or whether a detriment to nearby properties will be created by the grant of an area variance;
[2]
Whether the benefit sought by the applicant can be achieved by some feasible method for the applicant to pursue other than an area variance;
[3]
Whether the requested area variance is substantial;
[4]
Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and
[5]
Whether the alleged difficulty was self-created; which consideration shall be relevant to the decision of the Zoning Board of Appeals but shall not necessarily preclude the granting of an area variance.
(b)
The Zoning Board of Appeals shall grant the minimum variance necessary while preserving and protecting the character of the neighborhood and the health, safety and welfare of the community.
(2)
For use variances.
(a)
No use variance shall be granted by the Zoning 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 Zoning Board of Appeals, for each and every permitted use under the Zoning Law for the particular zoning district where the property is located and for each and every use previously permitted by special use permit or previously approved use variance, that:
[1]
The applicant cannot yield a reasonable return, provided that the lack of return is substantial as demonstrated by competent financial evidence.
[2]
The requested use variance, if granted, will not alter the essential character of the neighborhood.
[3]
The alleged hardship of the appellant or owner relating to the property is unique and does not apply to a substantial portion of the district or the neighborhood.
[4]
The alleged hardship has not been self-created.
(b)
The Zoning 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.
(3)
Unless a building permit pursuant to § 160-15.2 is obtained within one year of the date of the granting of a variance, such variance shall be null and void.
D.
Procedure.
(1)
All appeals and applications made to the Zoning Board of Appeals shall be in writing on a form prescribed by the Zoning Board of Appeals and accompanied by a fee as set forth in the fee schedule established by the Village Board,[1] payable to the Village Clerk.
[1]
Editor's Note: The fee schedule is available from the Codes Office.
(2)
An appeal shall be taken within 60 days after the filing of any order, requirement, decision, interpretation or determination of the Code Enforcement Officer or the Planning Board.
(3)
An appeal shall stay all proceedings in furtherance of the action appealed from. If the Code Enforcement Officer deems that such stay would cause imminent peril to life or property, the Zoning Board of Appeals shall follow the procedures set forth in Village Law § 7-712-a, Subdivision 6.
(4)
The Zoning Board of Appeals shall hold a public hearing, notice of which shall include the property location for which the variance or interpretation is requested and the nature of the request for variance or interpretation. Notice shall be given at least 10 days in advance by publication in the official newspaper of the date, time and place of the hearing.
(5)
The notice of public hearing shall be mailed at least 10 days before the hearing to all owners of property which lies within 200 feet of the property for which relief is sought, as determined from the latest assessment roll.
(6)
In addition, the Zoning Board of Appeals shall send notification of any pending appeal for a use variance for any property located within 500 feet of a municipal boundary to the Clerk of that municipality not later than 10 days prior to the date of the public hearing.
(7)
At least 10 days before a hearing, the Zoning Board of Appeals shall mail notices to the parties and to any regional state park commission with jurisdiction over any state park or parkway within 500 feet of the property affected.
(8)
Referral of appeal to county; contrary action to county recommendation.
(a)
In accordance with General Municipal Law § 239-m, the Zoning Board of Appeals shall refer a full statement of any appeal for a variance to the Schoharie County Planning and Development Agency when the action affects property located within 500 feet of:
[1]
The municipal boundary.
[2]
The boundary of any existing or proposed county or state parkway, thruway, expressway, road or highway.
[3]
An existing or proposed right-of-way of any stream or drainage channel that is owned by the county or for which the county has established channel lines.
[4]
An existing or proposed boundary of any county or state-owned land on which a public building or institution is situated.
(b)
If within 30 days the Schoharie County Planning and Development Agency recommends modification or disapproval, the Zoning Board of Appeals may act contrary to the recommendation only by a vote of a majority plus one of the entire Zoning Board of Appeals and by adopting a resolution fully setting forth reasons for such contrary action.
(9)
Pursuant to General Municipal Law § 239-nn, notice of the public hearing shall be given by mail or electronic means to the Clerk of the adjacent municipality at least 10 days prior to the commencement of the hearing.
(10)
The Zoning Board of Appeals shall hold a hearing on each appeal within 32 days from the Zoning Board of Appeals' determination that the application is complete.
(11)
The Zoning Board of Appeals shall render its decision on each appeal within 62 days following the public hearing, unless the application has been the subject of a positive declaration under the State Environmental Quality Review Act (Environmental Conservation Law Article 8). If the application has been the subject of a positive declaration, then the time frames shall be governed by Part 617 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR Part 617). If an affirmative vote of a majority of the members of the Zoning Board of Appeals is not attained on a motion to grant a variance or reverse any order or determination of the Code Enforcement Officer within the time allowed for a decision, the appeal shall be deemed denied. The Zoning Board of Appeals may amend a motion that fails to muster a concurring majority and vote on the amended motion within the time allowed for a decision without being subject to the rehearing process as set forth below. The time to render its decision may be extended by mutual consent of the applicant and the Zoning Board of Appeals.
(12)
The decision of the Zoning Board of Appeals shall be filed in the Village Clerk's office within five business days after the day such decision is rendered. A copy of the decision shall also be mailed to the applicant and any parties to the hearing.
(13)
Pursuant to Village Law § 7-730, Subdivision 6, the Zoning Board of Appeals shall request the recommendation of the Planning Board with respect to appeals for an area variance by sending the Secretary of the Planning Board a copy of the application for a variance together with such request. The request shall be sent upon the Zoning Board of Appeals' determination that the application is complete.
(14)
Pursuant to Village Law § 7-712-c, a person aggrieved by any decision of the Zoning Board of Appeals or any officer, department or board of the Village may apply to the New York State Supreme Court for relief under Article 78 of the Civil Practice Law and Rules of New York State.
(15)
Pursuant to Village Law § 7-712-a, Subdivision 12, a motion for the Zoning Board of Appeals to hold a rehearing to review any order, decision or determination of the Zoning Board of Appeals not previously reheard may be made by any member of the Zoning Board of Appeals. A unanimous vote of all members of the Zoning Board of Appeals then present is required for such rehearing to occur. The rehearing is subject to the same notice provisions as the original hearing. Upon such rehearing the Zoning Board of Appeals may reverse, modify or annul its original order, decision, or determination upon the unanimous vote of all members then present, provided that the Zoning Board of Appeals finds that the rights vested in the persons acting in good faith in reliance upon the reheard order, decision or determination will not be prejudiced.