Greenfield City Zoning Code
ARTICLE VIII
Zoning Board of Appeals
§ 105-81 Creation; membership.
A.
There is hereby established a Zoning Board of Appeals, hereinafter the "ZBA," having the powers authorized under § 267 of the Town Law of the State of New York. Said ZBA shall consist of five members and an alternate appointed by the Town Board.
B.
The Town Board shall appoint a Chairman and members in accordance with the Town Law of the State of New York. An appointment to a vacancy occurring prior to expiration of a term shall be for the remainder of the unexpired term.
C.
The ZBA shall adopt rules and regulations consistent with state law and this chapter.
§ 105-82 Organization and procedure.
A.
Meetings of the ZBA shall be held at the call of the Chairman and at other such time as the ZBA may determine.
B.
The presence of a majority of the members shall constitute a quorum. The Chairman and, in his absence, the Acting Chairman may administer oaths and compel the attendance of witnesses.
C.
All hearings of the ZBA shall be public.
D.
The ZBA shall keep minutes of its proceedings, showing the action taken at the end, the vote of each member upon each question or, if absent or failing to vote, indicating such fact, and shall keep records of its inspections and other official actions, all of which shall be a public record.
§ 105-83 Powers and duties.
The ZBA shall have the following powers and duties under this chapter:
A.
Administrative appeals: to hear and decide appeals from and review any order, requirement, decision or determination made by an administrative official charged with the enforcement of this chapter.
B.
Grant variances: to approve, approve with conditions or disapprove appeals for variances from the strict enforcement of only the provisions of this chapter which relate to the use, space and bulk standards of the district, regulations and performance standards.
C.
Permit building in bed of mapped streets: The ZBA may grant a permit for a building in the bed of a mapped street or highway shown upon the Official Map of the Town of Greenfield.
D.
Interpret district boundaries of this chapter: Upon appeal from a decision by the official to decide any question involving the interpretation of any provision of this chapter or where uncertainty exists as to the boundaries of any zone district, the ZBA shall, upon written application or upon its own motion, determine the location of such boundaries of such districts as are established and as designated on the Official Zoning Map of the Town of Greenfield.
E.
Authorize temporary uses: to permit temporary occupancy and use of a structure in any district for a purpose that does not conform to the district requirements, provided that such occupancy and use is truly of a temporary nature and subject to any reasonable conditions and safeguards which the ZBA may impose to minimize any negative effect upon the neighborhood or to protect contiguous property. The approval of the ZBA and any permit based thereon for such temporary occupancy and use shall not be granted for a period of more than 12 months and shall not be renewable more than once, and then for a period of not more than 12 months. This provision is intended to supersede the criteria for use and area variances set forth in Town Law § 267-b, Subdivisions 2 and 3, to the extent that it is inconsistent with Town Law § 267-b, Subdivisions 2 and 3.
§ 105-84 Initiation of proceedings.
A.
Procedure for appellant.
(1)
An appeal to the ZBA pertaining to a ruling of any Town officer administering any portion of this chapter may be taken by any person aggrieved or by an officer, department, board or bureau of the Town affected. Such appeal shall be made by filing a notice of appeal, specifying the grounds of the appeal, with the Chairman of the Zoning Board of Appeals and the officer whose action is the subject of the appeal within 60 days after said ruling.
(2)
All applications and appeals made to the Zoning Board of Appeals shall be in writing on forms prescribed by the Zoning Board of Appeals. Every applicant must be in compliance with all sections of the Town of Greenfield Zoning Law, except for the item or items contained in that particular application, for that application to be considered. Every application or appeal shall contain the following information:
(a)
The name and address of the applicant or appellant.
(b)
The name and address of the owner of the lot to be affected by such proposed change or appeal.
(c)
A brief written description and location of the lot to be affected by such proposed change or appeal, including the present zoning classification of the lot in question, the improvements thereon and the present use thereof and the additions or changes intended to be made under this application, indicating the size of such proposed improvements, material and general construction details.
(d)
Eight complete copies of any application form prescribed by the ZBA and fees as outlined in Chapter A210, Fee Schedule, of the Code of the Town of Greenfield, New York.
(e)
Interpretations and variances.
[1]
If seeking an interpretation, a written description of the specific provision of the rule in question and the interpretation claimed and a sketch plan of the real property to be affected, indicating the location and size of the lot and the size of improvements proposed to be completed.
[2]
If seeking a variance, eight copies of a preliminary site plan as required by Article VI, § 105-52A(3), a legal description of the property, plans and elevations necessary to show the proposed variance and either drawings or information reasonably considered necessary by the ZBA to fully assess the proposed use and its relationship to surrounding properties.
(3)
If a notice of violation has been served on the owner or occupant of property pursuant to § 105-26A, no application shall be accepted for review by the ZBA, and no building permit shall be issued by the Building Inspector relating to that property except for actions to cure the violation, and no certificate of occupancy shall be issued by the Building Inspector, unless and until the violation has been remedied or removed and any applicable fine has been paid as determined by the official or by a court if legal action has been instituted.
[Added 4-8-2010 by L.L. No. 1-2010]
B.
Procedure for the official.
(1)
A notice of appeal from any order, requirement, decision or determination made by the administrative official charged with the enforcement of this chapter shall be filed with such administrative official and with the ZBA within 60 days after the filing of the order, requirement, decision or determination. The official shall transmit to the ZBA all papers constituting the record upon which the action appealed from was taken.
(2)
It shall be incumbent upon the official to recommend to the ZBA a modification or reversal of his action in cases where he believes substantial justice requires the same but where he has not himself sufficient authority to grant the relief sought.
C.
Referral to the Planning Board.
(1)
At least 14 days before the date of the public hearing held in connection with any application to the ZBA, the ZBA may, at its discretion, transmit a copy of said application to the Planning Board and shall request that the Planning Board submit to the ZBA its advisory opinion on said application. When a referral occurs, the Planning Board shall submit a report of such advisory opinion prior to the time set for the ZBA to render its decision. Failure of the Planning Board to submit such report shall be interpreted as a no-recommendation opinion by the Planning Board.
(2)
In the case of a request or an application to build in the bed of a mapped street, the official shall transmit a copy of the application, plans and other available data to the Planning Board not less than 10 days prior to a public hearing on the application. Prior to or at the time of hearing, the Planning Board shall submit a report to the ZBA as to the probable effect such an application would have on the Comprehensive Land Use Plan, public health, safety and welfare of the Town of Greenfield.
§ 105-85 Public hearing and notice.
A.
Notice.
[Amended 5-8-2008 by L.L. No. 1-2008]
(1)
The ZBA shall fix a reasonable time for the hearing on the appeal application and give public notice thereof by publishing a notice of such hearing in a paper of general circulation in the Town at least seven days prior to the date thereof and, at least 10 days prior to the date of the hearing, by mailing notices of the hearing:
(a)
To the parties and to the County Planning Board, as required by § 239-m of the General Municipal Law. The notice shall be accompanied by a full statement of the matter under consideration, as defined in Subdivision 1 of § 239-m of the General Municipal Law.
(b)
In case of an appeal for a variance, to all owners of property within 500 feet of the nearest line of the property for which the variance is sought and such other property owners as the Chairman of the ZBA may direct.
(2)
A sign advertising the public hearing shall be provided by the Town to the applicant, who shall be responsible for posting it on the property for a period of 10 days prior to the hearing. In the event the sign is lost or removed from the premises, the applicant shall make arrangements to replace the same within 24 hours. The applicant shall provide the Board with proof of posting on a form to be provided by the Town.
B.
Adjournment of hearing. The ZBA may adjourn any hearing upon the mutual consent of the ZBA and the applicant.
§ 105-86 Decisions.
The ZBA shall decide each appeal within 62 days from the date of the final hearing. The time within which the ZBA must render its decision may be extended by mutual consent of the applicant and the ZBA. Upon the hearing, any party may appear in person or be represented by an agent or attorney. In the exercise of its functions upon such appeals, the ZBA may, in conformity with the provisions of this chapter, reverse or affirm, wholly or partly, or modify the order, requirement, decision or determination appealed from and shall have all the powers of the administrative official from whose other requirement, decision or determination the appeal is taken and may make such order, requirement, decision or determination in accordance with the provisions hereof.
A.
Voting. The ZBA shall act by resolution. The concurring vote of a majority of the total members of the ZBA shall be necessary to make a determination on any issue in accordance with this chapter. Each action by the ZBA shall immediately become part of the public record and shall be filed with the Town Clerk within five business days after the decision is rendered and a copy mailed to the applicant.
B.
Standards for granting appeals. The ZBA shall grant an appeal only when it finds that the following standards have been met:
(1)
Administrative appeals: that the official at whom the appeal is directed erred in either interpretation of the law or in the application of the Code to the particular circumstances of the application. If the ZBA finds that the official misinterpreted or misapplied the provisions of this chapter, the decision of the official shall be reversed, and the ZBA shall make an official interpretation of the law to be used by the official.
(2)
Area variances:
(a)
The ZBA shall have the power to grant area variances from the area or dimensional requirements of this chapter.
(b)
In making its determination, the ZBA 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 ZBA 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.
(c)
The ZBA, 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.
(3)
Use variances:
(a)
The ZBA shall have the power to grant variances authorizing a use of the land which otherwise would not be allowed or would be prohibited by the terms of this chapter.
(b)
No use variance shall be granted by the ZBA 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 ZBA that:
[1]
Under applicable zoning regulations the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;
[2]
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]
The requested use variance, if granted, will not alter the essential character of the neighborhood; and
[4]
The alleged hardship has not been self-created.
(c)
The ZBA, 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.
C.
Conditions of approval. In granting any appeal, the ZBA may impose conditions on that approval that it finds necessary to ensure full satisfaction of the standards imposed for the granting of the appeal and other applicable provisions of the law. Violations of these conditions shall be a violation of this chapter. Such conditions may include but are not limited to specifications for the following:
(1)
Vegetation, buffering and screening.
(2)
Increased setbacks and yards and access restrictions.
(3)
Hours of use and operational controls.
(4)
The location of signs, parking and lighting.
(5)
Conservation easements and other deed restrictions.
(6)
The professional maintenance and inspection of facilities or improvements necessary to ensure adequate maintenance and inspection.
§ 105-87 Expiration of decision.
Unless otherwise specified by the ZBA, a decision of any appeal or request for a variance shall expire if the applicant fails to obtain any necessary building permit or comply with the conditions of said authorized permit within one year from the date of authorization.
§ 105-88 Subsequent hearings.
After hearing all evidence presented upon an application or appeal under the provisions of this chapter, the ZBA shall refuse to hold further hearings on said or a substantially similar application or appeal by the same applicant, its successors or assigns for a period of one year, except and unless the ZBA shall find and determine from the information supplied by the request for a rehearing that changed conditions have occurred relating to the promotion of the public health, safety, convenience, comfort, prosperity and general welfare and that a reconsideration is justified.