Horseheads Town City Zoning Code
ARTICLE XIX
Appeals
§ 204-117 Board of Appeals established. [1]
There is hereby established a Board of Appeals of five members which shall function in a manner prescribed by § 267 of the Town Law and whose office shall be located in the office of the Town Clerk of the Town of Horseheads. The Board of Appeals shall adopt from time to time such rules and regulations as it may deem necessary to carry into effect the provisions of this chapter, and all its resolutions and orders shall be in accordance therewith. The Board of Appeals shall take minutes of all of its meetings and keep a public record of its proceedings and the vote of each member on every question.
§ 204-118 Procedure.
Any person aggrieved by any decision or determination of the Code Enforcement Officer may take an appeal to the Board of Appeals. In accordance with the provisions hereinafter contained, the Board of Appeals shall have the following authority:
Appellate jurisdiction.
To hear and decide appeals from, and review, any order, requirement, decision or interpretation made by the Code Enforcement Officer, including the issuance of building permits and certificates of occupancy and determination of the exact location of any district boundary if there is uncertainty with respect thereto.
Use variances. Where there are unnecessary hardships in the way of carrying out the strict letter of this chapter, the Board of Appeals shall have the power to vary or modify the application of any of the use regulations or provisions of this chapter so that the spirit of the chapter shall be observed. No use variance shall be granted by the Board of Appeals, however, unless it finds:
That there are special circumstances or conditions, fully described in the findings of the Board of Appeals, applying to such land or buildings in the neighborhood, that said circumstances or conditions are such that strict application of said provision of this chapter would deprive the applicant of the reasonable use of such land or buildings and that the land in question can not yield a reasonable return if used only for an activity which is permitted on said land.
That, for reasons fully set forth in the findings of the Board of Appeals, the granting of the variance is necessary for the reasonable use of the land or building and that the variance as granted by said Board is the minimum variance that will accomplish this purpose.
That the granting of the variance will be in harmony with the general purpose and intent of this chapter, and will not be injurious to the neighborhood or otherwise detrimental to the public welfare.
Area variance.
Where there are practical difficulties or special conditions which make regulations governing lot size, yard size, building height and all other regulations not specifically related to use of land or building unreasonable or impossible to comply with, the Board of Appeals shall have the power to vary or modify these regulations as long as the spirit of the regulation to be altered is observed. In granting an area variance the Board of Appeals shall find that:
There is no practical way for the applicant to accomplish intended objectives by observing the area regulations specified in this chapter.
The variance requested will not be unduly detrimental to adjoining properties.
In granting any area variance the Board of Appeals shall prescribe any conditions that it deems necessary or desirable.
Original jurisdiction.
§ 204-119 Planning Board referral.
All appeals shall be referred to the Planning Board for review as to conformance with the objectives of the Comprehensive Plan. No decision shall be made by the Board of Appeals until such Planning Board review has been completed and a report issued. If the Planning Board fails to act within 30 days, the Board of Appeals shall assume that a favorable report has been issued.
§ 204-120 Procedure.
All appeals and applications made to the Board of Appeals shall be in writing and shall be filed with the Town Clerk 60 days after the decision of the Code Enforcement Officer. Each appeal or application shall refer to the special provision of the ordinance involved and shall set forth the interpretation that is claimed, the use for which the special permit is sought, or the details of the variance that is applied for, and the grounds on which it is claimed that the variance should be granted, as the case may be.[1]
The Board of Appeals shall hold a public hearing on appeals within 60 days after receipt and give due notice of such public hearing by advertising in the official newspaper of the Town of Horseheads at least five days prior to the date thereof.
The applicant shall mail notices at least 10 days before any hearing to all property owners within 200 feet of the property under consideration and provide to the Zoning Board of Appeals an affidavit stating the names, addresses, date and a copy of letter sent.[2]
At least 10 days before any public hearing, the Zoning Board of Appeals shall mail notices thereof to the applicants and to the Regional State Park Commission having jurisdiction over any state park or parkway within 500 feet of the property affected.[3]
The Board of Appeals, before taking a final action on any special permit or variance affecting real property lying within a distance of 500 feet from the boundary of any city, village or Town or from the boundary of any existing or proposed county or state park or other recreation area or from the right-of-way of any stream or drainage channel owned by the county or for which the county has established channel lines or from the existing or proposed boundary of any county- or state-owned land on which a public building or institution is situated shall refer such matter to the Chemung County Planning Board for report and recommendation. If the County Planning Board fails to make such report within 30 days after receipt of referred matter, the Board of Appeals may act without such report. If the County Planning Board recommends modification or disapproval of a proposed action, the Zoning Board of Appeals shall not act contrary to such recommendation except by a majority vote plus one of all the members of the Zoning Board of Appeals. The Zoning Board of Appeals shall file a report of its action with the County Planning Board within 30 days. If the Zoning Board of Appeals acts contrary to a recommendation or modification or disapproval of a proposed action, the Zoning Board of Appeals shall set forth the reasons for the contrary action in the report.[4]
The Board of Appeals shall decide on appeals and on other matters referred to it within 62 days after the final hearing. Every decision shall be by resolution and shall contain a full record of the findings of the Board of Appeals in the particular case.[5]
§ 204-121 Rehearing.
Upon motion initiated by any member of the Board of Appeals and adopted by the unanimous vote of the members present, the Board of Appeals shall review at a rehearing any new information not previously reviewed which might affect the original order, decision or determination.[1]
Notice of such rehearing shall be given in the same manner as the original hearing.
By a concurring vote of all members present at such rehearing, the Board of Appeals may reverse or modify its original order, decisions or determination if it appears that the rights vested prior to such rehearing in persons acting in good faith in reliance on such original order, decisions or determination will not be prejudiced thereof.
§ 204-122 Court review.
Any person or persons jointly or severally aggrieved by any decision of the Board of Appeals or any office or board of the Town may apply to the Supreme Court for relief by a proceeding under Article 78 of the Civil Practice Law and Rules. Such action must be instituted within 30 days after the filing of a decision in the office of the Town Clerk.