Jamestown City Zoning Code
ARTICLE XI
Board of Appeals
§ 300-1101 Creation and organization.
A.
The Board of Appeals shall consist of seven members, as appointed by the Mayor and confirmed by the City Council for terms of three years. Two of the appointments shall expire every year, and no more than three regular terms shall expire in any year, so that the majority of the Board shall always be of members of at least one year's experience. The Chairman of the Board shall be designated by the Mayor. The Board shall receive no compensation for its services. All members of the Board of Appeals holding office upon the effective date of this chapter shall continue in office until the expiration of the term to which they were appointed.
B.
The City Clerk/Treasurer shall act as its secretary and shall keep the minutes, decisions, opinions and the like as a public record, certifying various copies thereof to the proper officers and departments.
[Amended 2-10-2006 by L.L. No. 2-2006; 8-28-2017; 11-25-2019 by L.L. No. 1-2020]
§ 300-1102 Meetings, minutes and rules of procedure.
A.
The meetings of the Board of Appeals shall be held at such times as the members shall determine. The Chairman may call a meeting at any time, or two members may call a meeting of the Board by filing a copy of such call with the secretary, who shall then notify the other members of the Board of the time, place and purpose of the meeting.
B.
All of the meetings of the Board shall be open to the public pursuant to Article 7 of the Public Officers Law.
C.
Unless otherwise provided by local law or ordinance, the jurisdiction of the Board of Appeals shall be appellate only and shall be limited to hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation or determination made by the administrative official charged with the enforcement of any ordinance or local law adopted pursuant to this article.
D.
The Board shall have a right to consider matters involving the public welfare in executive session but shall take no action in relation to such matters except in public sessions and by open vote.
E.
The presence of four members shall be necessary for a quorum.
F.
Copies of all petitions, minutes, decisions, opinions and the like shall be delivered to members of the Board of Appeals and the Planning Commission.
G.
The Board shall keep minutes of its proceedings showing the vote of each member upon every question of fact, including any failure to vote.
H.
The Board of Appeals, consistent with law and ordinance, may adopt rules of conduct and procedure.
§ 300-1103 Authority to request assistance.
The Board of Appeals shall have the authority to call upon any department, agency or employee of the City for such assistance as shall be deemed necessary and as shall be authorized by City Council. Such department, agency or employee may be reimbursed for any expenses incurred as a result of such assistance.
§ 300-1104 Hearing of appeals.
A.
In order to be heard by the Board of Appeals, an application for appeal shall be filed with the office of the City Clerk/Treasurer by the owner or the tenant of the property or his duly authorized agent, or by any person aggrieved, or by any officer, department, board or bureau of the City for which such appeal or application is sought, specifying the grounds for said appeal and the relief sought. Said application shall be accompanied by a fee in the amount as provided in Chapter 175, Licenses and Permits, unless it is submitted by any officer, department, board or bureau of the City, whereby no fee shall be required.
[Amended 2-10-2006 by L.L. No. 2-2006; 8-28-2017; 11-25-2019 by L.L. No. 1-2020]
B.
The Board of Appeals shall fix a reasonable time for the hearing of the appeal; however, all appeals shall be taken within 60 days after the filing of any order, requirement, decision, interpretation or determination of the administrative official charged with the enforcement of such ordinance or local law.
C.
The Board of Appeals shall give public notice thereof by publication in the official paper at least five days prior to the date of such hearing and shall, at least five days before such hearing, mail notices to all involved parties.
D.
The Board of Appeals shall likewise mail a copy of the notice of appeal at least five days before such hearing to owners of property within a radius of 100 feet of the site of the property involved in the appeal, insofar as the same may be practical. The names of the property owners shall be ascertained by the Board of Appeals or its secretary through an examination of the assessment roll.
E.
In addition to the giving of notice as aforesaid, the Building Inspector shall also cause a sign to be erected on the property involved in the appeal at least five days preceding the date of the hearing. Said sign shall state that the property upon which the sign is erected is the subject of a hearing before the Zoning Board of Appeals and shall also designate the time and place of the hearing. Said sign shall be removed from the subject property by the Building Inspector immediately after the hearing is held.
F.
The administrative officer from whom the appeal is taken shall forward all documentation constituting the record of the appealed action to the Board of Appeals.
G.
Any appeal to the Board of Appeals shall stay all proceedings in furtherance of the action appealed from.
§ 300-1105 Appeals for interpretation.
A.
The Board of Appeals shall hear and decide appeals where it is alleged that there is an error or misinterpretation in any order, requirement, decision or determination by any administrative official of the City charged with the enforcement of the provisions of this chapter.
B.
The Board of Appeals may reverse, modify or affirm, in whole or in part, any such order, requirement, decision or determination appealed; and have all the powers of the administrative official from whom this appeal is taken, provided that all decisions of the Board of Appeals be in strict compliance with the provisions of this chapter.
C.
However, the Board of Appeals shall not have any power or authority to modify, in whole or in part, decisions required of the Planning Commission by this chapter.
§ 300-1106 Appeals for use variances.
The Board of Appeals, on an appeal from the decision or determination of the administrative official charged with the enforcement of this chapter, shall have the power to grant use variances, as defined herein:
A.
No such use variance shall be granted 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 this particular district where property is located:
(1)
The applicant can not 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.
B.
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 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.
§ 300-1107 Appeals for area variances.
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:
A.
In making its determination, the 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 community. In making such determination the Board shall also consider:
(1)
Whether the granting of such variance will result in an undesirable change in the character of the neighborhood;
(2)
Whether the granting of such variance will be a detriment to nearby properties;
(3)
Whether the benefit sought by the applicant can be achieved by feasible means other than the area variance;
(4)
Whether the requested area variance is excessive;
(5)
Whether the granting of such variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and
(6)
Whether the alleged difficulty was self-created, in which consideration shall be relevant but not necessarily preclude the granting of the area variance.
B.
The Board of Appeals, 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, health, safety and welfare of the neighborhood and the community.
§ 300-1108 Appeals for special use permits.
The Board of Appeals shall hear and decide all applications for special use permits in all such cases upon which the Board of Appeals is specifically authorized to do so. All uses listed as subject to a special use permit authorized by the Board of Appeals are declared to possess characteristics of such unique and special form that each use shall be considered as an individual case. Such uses shall be deemed to be permitted uses in their respective districts, subject to the requirements hereof:
A.
Should a particular site involved in such application be deemed wholly inadequate for the proposed use, the Board of Appeals may deny the application in total.
B.
A special use permit shall be authorized by the Board of Appeals, provided that all of the following findings are made:
(1)
Such use shall be in harmony with the general purpose and intent of this chapter, taking into account the location and size of use, the nature and intensity of the operations involved in or conducted in connection with it and the size of the site in respect to streets giving access thereto;
(2)
Such use shall not tend to depreciate the value of adjacent property, taking into account the possibility of screening or other protective measures to protect adjacent properties in any R District;
(3)
Such use shall not create a hazard to health, safety or general welfare;
(4)
Such use shall not alter the essential character of the neighborhood nor be detrimental to the residents thereof; and
(5)
Such use shall not otherwise be detrimental to the public convenience or welfare.
§ 300-1109 Imposition of conditions.
The Board of Appeals shall, in the granting of both variances and special use permits, have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed use of the property. Such conditions shall be consistent with the spirit and intent of this chapter and shall be imposed for the purpose of minimizing any adverse impact such variance or special use permit may have on the neighborhood or community.
§ 300-1110 Referral to planning agency.
A.
Pursuant to § 239-m of the General Municipal Law, prior to granting any variances or special use permits the Board of Appeals shall:
(1)
Refer the matter to the Jamestown Planning Commission for comment; and
(2)
Refer the matter to the County Planning Board for comment if the variance or special use permit applies to real property which is within 500 feet of any of the following:
(a)
The boundary of any existing or proposed county or state park;
(b)
The right-of-way of any county or state parkway or thruway, expressway or highway;
(c)
The right-of-way of any county- or state-owned stream or drainage channel; or
(d)
The boundary of any county- or state-owned land on which a public building or institution is located.
B.
Within 30 days, said agency shall report its recommendation to the Board of Appeals, and, in the event of its failure to do so, the Board of Appeals may act without such a report.
§ 300-1111 Decision of appeals.
A.
The Board of Appeals shall decide upon the appeal within 62 days after the conduct of said hearing.
B.
The concurring vote of a majority of the members of the Board of Appeals shall be necessary to reverse any order, requirement, decision or determination of any such administrative official or to grant an interpretation, variance or special use permit.
C.
Every decision of the Board of Appeals shall be by resolution. Where findings are required, the decision shall set forth each required finding, supported by substantial evidence or other data considered by the Board of Appeals in each specific case, or, in the case of denial, the decision shall include the findings which are not satisfied.
D.
Each decision of the Board of Appeals shall be filed in the office of the City Clerk/Treasurer and mailed to the appellant within five business days after the day such decision is rendered.
[Amended 2-10-2006 by L.L. No. 2-2006; 8-28-2017; 11-25-2019 by L.L. No. 1-2020]
E.
The Board of Appeals shall, within seven days after any final action, file a report of the final action it has taken with the City Planning Commission and, where applicable, to the County Planning Board.
§ 300-1112 Rehearing of appeals.
No person, firm or corporation shall appeal the same determination more than once in any twelve-month period. However, the Board of Appeals may, after a unanimous vote of all members present, rehear any order, determination or decision of the Board of Appeals. Such hearing is subject to the same notification provisions as an original hearing. Upon such rehearing, the Board may reverse, modify or annul its original decision upon a unanimous vote of all members then present, provided that the Board finds that the rights vested in persons acting in good faith in reliance upon the reheard order, decision or determination will not be prejudiced thereby.
§ 300-1113 Appealing decision of Board of Appeals.
[Amended 2-10-2006 by L.L. No. 2-2006; 8-28-2017; 11-25-2019 by L.L. No. 1-2020]
In the event that the applicant wishes to appeal the decision of the Board of Appeals, said applicant shall have 30 days from the date of filing the decision in the office of the City Clerk/Treasurer in which to commence special proceedings pursuant to the provisions of Article 78 of the Civil Practice Law and Rules.
§ 300-1114 Modification of regulations.
A.
Reduction of parking spaces for places of assembly. The Board of Appeals may authorize a reduction of not more than 50% in the number of required off-street parking spaces for places of assembly when located on the same lot with other uses, provided that in accordance with the times of operation and times of peak demand, there will be no conflict in the joint use of such off-street parking.
B.
Exception from exterior side yard requirements. The Board of Appeals may modify the exterior side yard requirements for principal buildings on deep corner lots, provided that the following findings are made:
§ 300-1115 Lapse of authorization.
A.
Any variance, special use permit or modification of regulations authorized by the Board of Appeals shall be automatically revoked unless a building permit conforming to all the conditions and requirements established by the Board of Appeals is obtained within six months of the date of approval by the Board of Appeals and construction is commenced within one year of such date of approval.
B.
The Building Inspector may cause the revocation or discontinuation of any variance or special use permit for a use or structure which has been abandoned for a period of one year.
§ 300-1116 Violations; enforcement.
Failure to comply with any condition or restriction prescribed by the Board of Appeals in approving an appeal for a variance or special use permit shall constitute a violation. Such violation shall be sufficient grounds for the revocation of any variance or special use permit or for the imposition of penalties and other applicable remedies.