Fayetteville City Zoning Code
ARTICLE VII
Administration and Enforcement
§ 187-35 Authority.
[Amended 3-28-1988 by L.L. No. 2-1988]
The general administration and enforcement of this chapter shall be divided among the Code Enforcement Officer, Board of Appeals and Planning Board, who may adopt regulations to govern their procedures, including administrative forms and filing fees, with the approval of the Village Board of Trustees.
§ 187-36 Codes Enforcement Officer.
[Amended 3-28-1988 by L.L. No. 2-1988]
A.
The Codes Enforcement Officer shall be responsible for the issuance of certification that all development complies with the provisions of this chapter, including the terms and conditions of any special authorization. No development shall take place within the Village unless such certification has been issued. The form of certification shall read as follows: "The plans for the development of the subject property are in compliance with the Code of the Village of Fayetteville and with the terms and conditions of any special authorization issued pursuant to such Code."
B.
This certification shall be endorsed upon all permits required to be issued.
C.
The Codes Enforcement Officer is authorized to provide an interpretation of any of the provisions of this chapter, including by way of illustration and not limitation the precise location of the district boundary lines and the meaning of any term or provision of this chapter. Where there is disagreement with such determination, an application may be filed by either the Code Enforcement Officer or any other interested party with the Zoning Board of Appeals, as provided in § 187-37 of this article, requesting a review of the Code Enforcement Officer's determination. In addition, if it is claimed that any proposed development of property is exempt from the provisions of this article because of any applicable local, county, state or federal law, an application shall be filed with the Code Enforcement Officer requesting a statement that there is such an exemption.
§ 187-37 Zoning Board of Appeals.
[Amended 2-23-1987 by L.L. No. 1-1987; 3-28-1988 by L.L. No. 2-1988; 2-9-1998 by L.L. No. 1-1998]
The Zoning Board of Appeals shall consist of five regular members, who shall each be appointed to five year terms by the Mayor, subject to the approval of the Board of Trustees. Of such members, the Mayor shall appoint one as Chairman and one as Deputy Chairman, subject to the approval of the Board of Trustees. The Zoning Board of Appeals shall have the power to adopt rules for its procedure in government, not inconsistent with law or this chapter, subject to the approval of the Village Board of Trustees.
A.
Powers and duties. The Zoning Board of Appeals shall have all the powers and duties prescribed by law and by this chapter, which are more particularly prescribed as follows:
(1)
Interpretation. The Zoning Board of Appeals is hereby authorized, upon appeal, to hear and decide:
(a)
Any matter where it is alleged by appellants that an administrative official was in error in refusing to issue a building permit as a result of misinterpretation of the meaning or intent or application of any section or part thereof of this article or any other Article of the Fayetteville Zoning Code where appeal to the Board of Appeals is authorized.
(b)
Any matter where it is alleged by appellants that an administrative official was in error in issuing a building permit, certificate of occupancy or other permit as a result of misinterpretation of the meaning or intent or application of any section or part thereof of this chapter. To appeal under this subsection, a person or persons must be jointly or severally aggrieved by the decision in question. It is determined for purposes of this subsection that any person or persons owning property within 300 feet of the property in question shall be considered to be an "aggrieved person." Any other person or persons or group of persons must, in addition to other procedural requirements, state with particularity the specific, personal or legal interest they have in the subject matter of the decision. Prior to hearing such an appeal for interpretation, the Zoning Board of Appeals must initially make a finding of fact that the applicant has demonstrated that he or she is an "aggrieved person."
(2)
Variances. Where there are practical difficulties or unnecessary hardships not self-imposed in the way of carrying out the provisions of this chapter, the Zoning Board of Appeals shall have the power, in passing upon appeals, to vary or modify the application of any of the provisions of this chapter relating to the use, construction or alteration of buildings or structures or the use of land so that the spirit of this chapter shall be observed, public safety and welfare secured and substantial justice done. In granting any variance, the Board may prescribe any conditions that it deems to be necessary or desirable. A variance granted by the Zoning Board of Appeals pursuant to this section or previous to the adoption of this chapter shall be deemed to have expired unless:
(a)
Within 12 months after the date of the resolution granting the variance or, for variances granted prior to the adoption of this chapter, on or before March 31, 1988, the lot or land, where no structure is involved, shall have been put into use for the purpose for which the resolution was granted; or
(b)
Within 12 months after the date of the resolution granting the variance or, for previously issued variances, on or before March 31, 1988, construction for the structure for which the variance was granted shall have been actually begun and the entire structure for which the variance was granted shall have been completed according to filed plans within two years after the date of resolution or, for previously issued variances, on or before March 31, 1989.
(3)
Procedure.
(a)
The Zoning Board of Appeals shall act in accordance with the procedure specified by law and this chapter. All appeals and applications to the Board shall be in writing, on forms prescribed by the Board. Upon receipt of an application or appeal the Chairman of the Board or the Code Enforcement Officer shall transmit to the Planning Board a copy of said application or appeal and shall request that the Planning Board submit to the Board of Appeals its opinion on said application or appeal, and the Planning Board shall submit a report of such advisory opinion. Upon failure to submit such report the Planning Board shall be deemed to have approved the application or appeal.
[Amended 9-13-2004 by L.L. No. 1-2004]
(b)
All appeals to the Zoning Board of Appeals must be made within 30 days of notification of denial of an application or of the actual granting of a building permit.
(c)
Every decision of the Zoning Board of Appeals shall be made by resolution, certified copies of which shall be filed with the Codes Enforcement Officer, the Village Clerk and the applicant.
B.
Associate members. In addition to its regular members, the Zoning Board of Appeals may include up to two associate members who shall be appointed to one-year terms by the Mayor, subject to the approval of the Board of Trustees. Each associate member may attend meetings, and may participate in deliberations including executive session deliberations unless excluded by vote of the regular Zoning Board members. Each associate member shall have such additional powers and voting rights as are conferred upon them by § 187-43.1.
[Amended 6-11-2001 by L.L. No. 4-2001]
§ 187-38 Planning Board.
[Amended 2-9-1998 by L.L. No. 1-1998]
A.
The Planning Board shall consist of five regular members, who shall each be appointed to five year terms by the Mayor, subject to the approval of the Board of Trustees. Of such members, the Mayor shall appoint one as Chairman and one as Deputy Chairman, subject to approval of the Board of Trustees. The Planning Board shall have the power to adopt rules for its procedure in government, not inconsistent with law or this chapter, subject to the approval of the Village Board of Trustees.
B.
Associate members. In addition to its regular members, the Planning Board may include up to two associate members who shall be appointed to one-year terms by the Mayor, subject to the approval of the Board of Trustees. Each associate member may attend meetings, and may participate in deliberations including executive session deliberations unless excluded from such executive sessions by vote of the regular Planning Board members. Each associate member shall have such additional powers and voting rights as are conferred upon them by § 187-43.1.
[Amended 6-11-2001 by L.L. No. 4-2001]
C.
The Planning Board is authorized to receive and make a decision on all applications for special permits and site plan approval as required by this chapter and to review and approve applications for subdivision in accordance with the applicable provisions of the Village Law and any subdivision regulations adopted by the Village.[1]
§ 187-39 Board of Trustees.
The Village Board of Trustees shall be responsible for the classification of all zoning districts and amendments to the text of this chapter.
§ 187-40 Penalties for offenses.
[Amended 3-28-1988 by L.L. No. 2-1988; 9-13-1999 by L.L. No. 4-1999; 1-23-2012 by L.L. No. 4-2012; 2-11-2013 by L.L. No. 8-2013]
Any person committing an offense against any of the provisions of this chapter shall be guilty of a violation and, upon conviction thereof, shall be punishable for each offense by a fine or by imprisonment as set forth in Chapter 133 of this Code.
§ 187-41 Special permits.
A.
Applications.
(1)
An application for a special permit shall be made to the Planning Board and shall be accompanied by three sets of preliminary plans and other descriptive matter to portray clearly the intentions of the applicant. These documents shall become a part of the record. Such plans shall show location of all buildings, parking, access and circulation, open space, landscaping and other information necessary to determine if the proposed special use meets the requirements of this chapter.
(2)
The structure and uses authorized by special permit shall conform to all of the regulations of the district in which they are located and to any particular regulations which apply to them under other provisions of this chapter.
(3)
No special permit use shall be approved unless the following findings are made:
(a)
Applicable district regulations and other general and special controls contained in this chapter are complied with.
(b)
There will be no adverse impact upon the neighborhood environment, character or integrity of any land use within the immediate vicinity.
(c)
The development will be in harmony with the visual and physical environment and not in conflict with any Master Plan or Comprehensive Plan for the Village of Fayetteville.
(d)
Adequately designed open space, drainage facilities, landscaping and other features considered appropriate to the function of the development shall be provided.
(e)
Traffic controls for vehicular and pedestrian movement are designed to protect the safety of the general public and the occupants, employees, attendants and other persons for whose benefit the use is intended. In making this determination, the Planning Board shall review, but need not be limited to, the following considerations:
[1]
Location and adequacy of parking and loading facilities.
[2]
Pedestrian rights-of-way.
[3]
Traffic regulatory devices.
[4]
Location, number and design of points of ingress.
[5]
Accessibility to emergency vehicles, with particular emphasis on proximity to structures, no-parking or -loading zones or areas and provision for turning and free movement.
[6]
The proposed use will be provided with adequate supporting services, such as fire and police protection, public and private utilities and all other supporting governmental services necessary and appropriate to the proposed use.
(4)
A public hearing shall be held by the Planning Board with respect to all permit applications. Action by the Planning Board shall be completed within 60 days from the closing of the public hearing. The special permit application may be approved, conditionally approved or disapproved. The decision will be forwarded to the Codes Enforcement Officer with a copy to the applicant. Following approval or conditional approval, the Codes Enforcement Officer shall issue a building permit if required, and if the project conforms to all other applicable requirements.
[Amended 3-28-1988 by L.L. No. 3-1988; 3-22-1993 by L.L. No. 5-1993]
B.
Criteria.
(1)
In making a determination as to the compliance with any one or more of the findings and conditions specified in this section, consideration shall be given, but need not be limited, to the following elements:
(a)
Geometric characteristics of all structures and related improvements.
(b)
Aesthetic characteristics, including design, texture, materials, colors and illumination.
(c)
Physical attributes of the site, including size, shape, elevation, topography and natural vegetation.
(d)
The Planning Board may impose such conditions on the approval of any application as in its opinion are necessary and reasonable to implement the provisions of this section.
§ 187-42 Site plan review. [1]
A.
Applications and requirement. All permitted uses requiring site plan approval shall have prior site plan review before a building permit is issued for the alteration or construction of any building or a certificate of occupancy is granted for the conversion of any use of the premises. The site plan and related drawings shall be submitted by the owner to the Planning Board and shall be reviewed in accordance with the procedures and standards set forth in regulations adopted by the Planning Board.
B.
Site plan approval. The Planning Board's review of a site plan shall include, but is not limited to, the following considerations:
(1)
Adequacy and arrangement of vehicular traffic access and circulation, including intersections, road widths, channelization structures and traffic controls, culs-de-sac and turnarounds.
(2)
Adequacy and arrangement of pedestrian traffic access and circulation, including separation of pedestrian from vehicular traffic, walkway structures, control of intersections with vehicular traffic and pedestrian conveniences.
(3)
Location, arrangement, appearance and sufficiency of off-street parking and loading. Curbing or other more acceptable buffer shall be provided in all business and industrial site plans.
(4)
Location, arrangement, size and design of buildings, lighting and signs.
(5)
Relationship of the various uses to one another and their scale.
(6)
Adequacy, type and arrangement of trees, shrubs and other landscaping constituting a visual and/or a noise-deterring buffer between adjacent uses and adjoining lands.
(7)
All yards shall be adequately landscaped.
(8)
The adequacy of usable open space for playgrounds and informal recreation.
(9)
Adequacy of stormwater and sanitary waste disposal facilities.
(10)
Adequacy of structures, roadways, gutters and landscaping in areas with moderate-to-high susceptibility to flooding and ponding and/or erosion.
(11)
Protection of adjacent properties against noise, glare, unsightliness or other objectionable features.
(12)
Conformance with other specific charges of the Village Board which may have been stated in the zoning resolution.
(13)
A stormwater pollution prevention plan (SWPPP) consistent with the requirements of § 187-74 of the Village Code shall be required for site plan approval. The SWPPP shall meet the performance and design criteria and standards in § 187-74 of the Village Code. The approved site plan shall be consistent with the provisions of Local Law No. 6 of 2006.
[Added 12-11-2006 by L.L. No. 6-2006]
C.
Changes. An owner wishing to make changes in an approved site plan shall submit a revised site plan to the Planning Board for review and approval before making application for a building permit or certificate of occupancy.
§ 187-43 Fees and expenses.
[Added 6-22-1998 by L.L. No. 5-1998][1]
A.
Fee and expense schedule. The Village Board of Trustees shall establish by resolution and may periodically amend by resolution a schedule of fees and expenses to be paid by each applicant or appellant seeking a special permit, interpretation, variance, appeal or other response, decision, approval or other action of the Village or any of its boards, commissions or agencies pursuant to this chapter.
(1)
Expenses may be calculated to include reasonable expenses incurred by the boards in reviewing and acting upon such applications for administrative, consulting and/or expert assistance.
(2)
Any schedule of fees and expenses established pursuant to this section shall not apply to any properly completed application that is properly filed prior to adoption of such schedule by the Village Board.
(3)
Within 10 calender days after adoption of such schedule by the Village Board, any schedule of fees and expenses established pursuant to this section shall:
(4)
The applicable fee or expense shall be paid to the Village with the filing of the application or appeal to be considered.
B.
Expert assistance. Upon any application for a special permit, site plan approval, interpretation, variance, appeal, decision, approval or other action pursuant to this chapter, the applicant shall be obligated to pay the reasonable costs for all consulting or expert technical assistance, including but not limited to scientific, engineering, or appraisal services, required by the reviewing board to properly analyze, review and act upon such application.
(1)
The reviewing board shall obtain and provide a written estimate for the cost of such expert assistance to the applicant.
(2)
The applicant shall deposit such estimated sum in an account with the Village Treasurer prior to performance of such services.
(3)
Any deficiency or surplus in such account existing prior to the issuance of the certificate of occupancy or certificate of completion shall be paid by or refunded to the applicant.
§ 187-43.1 Voting rights of associate members of Zoning Board of Appeals, Planning Board, Historic Preservation Commission, Tree Commission and Parks Commission.
[Added 6-11-2001 by L.L. No. 4-2001; amended 5-27-2009 by L.L. No. 3-2009]
A.
Reference herein to a "Board" shall refer to the Zoning Board of Appeals, the Planning Board, the Historic Preservation Commission, the Tree Commission or the Parks Commission as the case may be. Reference herein to "associate members" shall refer to the associate members duly appointed to the corresponding Board.
B.
All provisions of state and local law applicable to regular Board member training and continuing education, attendance, conflict of interest, compensation, eligibility, vacancy in office, removal, and service on other boards shall also apply to associate members except as set forth herein.
D.
In the event the Board does not otherwise have a quorum at a duly noticed or continued meeting with respect to a specific item or vote, the acting Chairperson may, at his or her discretion, designate so many of the associate members present at the meeting as are needed to constitute a quorum. Such associate members shall then have the right to vote with respect to the specific vote and shall otherwise be vested with all the authority of a regular Board member for the duration of discussion with respect to the matter or resolution for which such vote is required.
E.
In the event the Board does not otherwise have a super-majority quorum at a duly noticed or continued meeting with respect to a specific item or vote where a super-majority vote is required, the acting Chairperson may, at his or her discretion, designate so many of the associate members present at the meeting as are needed to constitute a super-majority quorum. Such associate members shall then have the right to vote with respect to the specific vote and shall otherwise be vested with all the authority of a regular Board member for the duration of discussion with respect to the matter or resolution for which such vote is required. The term "super-majority quorum" shall, for this section, mean the number of members and associate members needed to constitute a super-majority of the full Board of regular members.
F.
The additional powers granted by this section shall terminate upon the commencement of the next agenda item occurring after the arrival of an absent regular member. The timing of the arrival of an absent regular member in relation to the commencement of an agenda item shall be as determined in the sole discretion of the acting Chairperson.
G.
In the event only one associate member is needed to constitute a quorum, and more than one is in attendance at the meeting, the acting Chairperson shall have discretion to choose which associate member, if any, shall be granted authority to act as set forth in this section.
H.
An agenda item shall not be delayed to await the arrival of a regular member when a quorum can be achieved with one or more associate members unless a majority of the newly constituted quorum and the applicant concur.
I.
If a Board member is unable to vote due to a conflict of interest or for any reason will abstain from a vote, that Board member will not be included in determining the presence of a quorum.