Deposit City Zoning Code
Article
XII Zoning Board of Appeals
§ 140-70 Creation, appointments and organization.
[Amended 12-9-2008 by L.L. No. 6-2008]
A.
The Zoning Board of Appeals shall consist of three members appointed by the Mayor, subject to the approval of the Village Board of Trustees. The members of the Zoning Board of Appeals, as now constituted, shall continue in office until the expiration of the next two terms. Thereafter, their successors shall be appointed for three-year terms in accordance with the New York State Village Law, so that one term shall expire at the end of each successive official year. If a vacancy shall occur otherwise than by expiration of a term, the Mayor shall appoint the new member for the unexpired term.
[Amended 6-28-2011 by L.L. No. 5-2011]
B.
The Chairperson shall be appointed by the Mayor, subject to the approval of the Village Board of Trustees. In the absence of a Chairperson, the Zoning Board of Appeals may designate a member to serve as acting chairperson.
C.
Alternate members. The Village Board of Trustees hereby establishes the position of alternate Zoning Board of Appeals member, for the purpose of substituting for a regular member in the event of a conflict of interest or because of illness or absence. Alternate Zoning Board of Appeals members shall be appointed by the Mayor, subject to the approval of the Village Board of Trustees, for three-year terms. When so appointed, an alternate Zoning Board of Appeals member shall possess all of the powers and responsibilities of a regular Zoning Board of Appeals member.
[Amended 7-10-2012 by L.L. No. 2-2012]
D.
Training. Each Zoning Board of Appeals member shall complete training requirements as established by resolution of the Village Board of Trustees, as amended from time to time.
§ 140-71 Powers and duties.
The Zoning Board of Appeals shall have the powers and duties prescribed by § 7-712 of Village Law and by this chapter, provided that none of the following provisions shall be deemed to limit any power of the Zoning Board of Appeals that is conferred by Village Law.
A.
Interpretation. On appeals from an order, requirement, decision or determination made by an administrative official. Code Enforcement Officer, administrative officer or upon the written request by an official board or agency of the Village to decide any of the following questions:
(1)
Determination of the meaning of any portion of the text in this chapter or of any condition or requirement specified or made under the provision of this chapter.
(2)
Determination of the exact location of any district boundary shown on the Zoning Map.
(3)
Determination that a use not specifically listed in any district established by this chapter is a similar use to those enumerated in a specific district. In making a determination that a use is similar, the Zoning Board of Appeals shall first determine that:
(a)
The use is not listed in any other classification of permitted buildings or uses.
(b)
The use is appropriate and conforms to the basic characteristics of the classifications to which it is added.
(c)
The use does not create dangers to health and safety and does not create offensive noise, vibration, dust, heat, smoke, odor, glare or other objectionable influences to an extent greater than that resulting from other uses listed in the classification to which it is to be added.
(d)
Such a use does not create traffic to a greater extent than then other uses listed in the classification to which it is to be added.
(e)
The determination as to whether a use is similar to uses permitted by right shall be considered as an expansion of the use regulations of the district and not as a variance applying to a particular situation. Any use found similar shall thereafter be included in the enumeration of uses permitted by right.
B.
Appeals. The Zoning Board of Appeals shall hear and decide where it is alleged that there is an error or misinterpretation in any order, requirements, decision or determination by the administrative officer or other such official charged with enforcement of this chapter. The appeals from any order, requirement, decision or determination shall be submitted in writing to the Secretary of the Zoning Board of Appeals within 60 days after the filing of such order, requirement, decision or determination.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
C.
Variances.
(1)
Use variances.
(a)
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, as defined herein.
(b)
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:
[1]
The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;
[2]
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;
[3]
That the requested use variance, if granted, will not alter the essential character of the neighborhood; and
[4]
That the alleged hardship has not been self-created.
(c)
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.
(2)
Area variances.
(a)
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 as defined herein.
(b)
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:
[1]
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;
[2]
Whether the benefit sought by the applicant can be achieved by some method, feasible 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 Board of Appeals, but shall not necessarily preclude the granting of the area variance.
D.
Recommendation of the Planning Board. Prior to a public hearing, every such interpretation, appeal and variance request shall be referred by the Zoning Board of Appeals to the Planning Board for a recommendation. The Planning Board's recommendation will be based on the granting of the interpretation, appeal or variance and its impact on the surrounding neighborhood, the community's health, safety and welfare and consistency with the Future Land Use Plan.
§ 140-72 Rules of procedure.
A.
The Zoning Board of Appeals shall have all the powers and perform all of the duties established by statute and this chapter.
B.
The Zoning Board of Appeals shall adopt rules for the conduct of its business consistent with statute and this chapter.
C.
The Chair of the Zoning Board of Appeals or, in the Chair's absence, the Acting Chair shall schedule all meetings of the Zoning Board of Appeals.
D.
The Chair of the Zoning Board of Appeals or, in the Chair's absence, the Acting Chair may administer oaths and compel the attendance of witnesses in the manner and to the extent permitted by the Village Law.
E.
The Zoning Board of Appeals may seek recommendations from the Planning Board and other agencies as it deems appropriate.
F.
An appeal stays all proceedings in furtherance of the section appealed, except as provided for in the Village Law.
G.
Hearings shall be public, and decisions shall be voted upon in public sessions.
H.
All appeals and applications to the Zoning Board of Appeals shall be in writing and shall be accompanied by a fee as shall be set from time to time by resolution of the Village Board.
I.
The decisions of the Zoning Board of Appeals shall contain findings supporting its decision. Each decision and the recording of each proceeding shall be filed with the Village Clerk-Treasurer.
§ 140-72.1 Referral to consultant.
In the review of any applications, the Planning Board, Zoning Board of Appeals, and the Village Board of Trustees may refer any application presented to it to such engineering, planning, lighting, legal, technical or environmental consultant as the Board shall deem reasonably necessary to enable it to review the application as required by law. Charges made by these consultant(s) shall be in accord with the charges usually made for such services in the Broome or Delaware County region or pursuant to an existing contractual agreement between the Village and the consultant. The developer shall reimburse the Village for the cost of the consultant services upon submission of a voucher. The same consultants shall be used in any review requested regarding the same application by the Planning Board, Zoning Board of Appeals, and the Village Board of Trustees, and these consultants shall prepare one report providing the data, information, and recommendations requested. In all instances, duplications of consultants' reports shall be avoided wherever possible in order to minimize the cost of the consultant's report to the applicant.