Jerusalem Town City Zoning Code
ARTICLE XV
Zoning Board of Appeals
§ 160-68 Creation; membership; compensation.
[Amended 12-13-2000 by L.L. No. 2-2000; 2-19-2025 by L.L. No. 1-2025]
A.
Creation. A Zoning Board of Appeals is hereby established in accordance with § 267 of the Town Law.[1]
[1]
Editor's Note: The Zoning Board of Appeals was recreated and appointed pursuant to § 267 of the Town Law 8-12-1992 by L.L. No. 1-1992.
B.
The Zoning Board of Appeals shall consist of five members each appointed to a staggered five-year term.
C.
Appointment. The Town Board shall appoint the members of the Zoning Board of Appeals and shall designate the chairperson thereof. In the absence of a chairperson, the Zoning Board of Appeals may designate a member to serve as acting chairperson. No person who is a member of the Town Board shall be eligible for membership on such Zoning Board of Appeals. Of the members of the Zoning Board of Appeals first appointed, one shall hold office for the term of one year; one for the term of two years; one for the term of three years; one for the term of four years; and one for the term of five years from and after his appointment; provided, however, that such Town Board may, by resolution, increase the number of members of the Zoning Board of Appeals to seven, and, thereafter, such additional members shall be first appointed for terms of two and four years, respectively. Their successors, including such additional members as may be appointed by the Town Board, shall be appointed for terms of five years from and after the expiration of the terms of their predecessors in office.
D.
Removal. The Town Board shall have the power to remove any member of the Zoning Board of Appeals for cause.
E.
Vacancies. Vacancies shall be filled by the Town Board. If a vacancy shall occur otherwise than by the expiration of the term, it shall be filled by appointment for the unexpired term.
F.
Compensation. The Town Board may provide for compensation to be paid to Zoning Board of Appeals members, experts, clerks, a secretary and for such other expenses as may be necessary and proper.
G.
Alternate members.
(1)
Legislative intent. This subsection authorizes the appointment of and establishes the terms, duties and powers of alternate members of the Zoning Board of Appeals of the Town of Jerusalem.
(2)
Declaration of policy. It is sometimes difficult to have a quorum on the Zoning Board of Appeals because members are ill, on an extended vacation or have a conflict of interest as to such specific matter before the Board. In such instances, official business cannot be conducted which may delay matters or impede adherence to required time limits. The use of alternate members in such instances is hereby authorized pursuant to the provisions of this subsection.
(3)
Definitions. As used in this subsection, the following terms shall have the meanings indicated:
ALTERNATE MEMBER
A person appointed by the Town Board to serve in place of a member who is unable to participate on an application or matter before the Zoning Board of Appeals, as provided herein.
MEMBER
A person appointed by the Town Board to serve on the Zoning Board of Appeals.
ZONING BOARD
The Zoning Board of Appeals of the Town of Jerusalem as established by the Town Board pursuant to the provisions of § 267 of the Town Law.
(4)
Alternate members authorized.
(a)
The Town Board is hereby authorized to appoint two alternate members to the Zoning Board of Appeals, each for a term of not more than three years to expire on December 31 of the third year after the date of appointment.
(b)
The Chairperson of the Zoning Board of Appeals may designate an alternate member to substitute for a member when such member is unable to participate on an application or matter before the Board because of conflict of interest, illness or extended vacation. If the Chairperson is unable to participate, the Vice Chairperson may designate the substitute. Such designation shall be entered into the minutes of the Zoning Board of Appeals meeting at which time substitution is made.
(c)
An alternate member who has been designated to serve in lieu of a regular member as to a particular matter shall possess all the powers and responsibilities of a regular member of the Board and shall continue to serve on the Board as to that matter until the matter has been finally determined or until the expiration of his or her term of office.
(d)
All provisions of state law relating to the eligibility of members, vacancy in office, removal, compatibility of office and service on other boards, as well as provisions of a local law or ordinance relating to training, continuing education, compensation and attendance shall also apply to alternate members.
(5)
Suppression of Town Law. This subsection is adopted pursuant to the provisions of § 10 of the Municipal Home Rule Law and § 10 of the Statute of Local Governments. The Town Board intends hereby to modify the provisions of § 267 of the Town Law relating to the appointment of members to the Zoning Board of Appeals.
(6)
Miscellaneous.
(a)
This subsection shall be deemed to supersede and repeal any other Local Laws to the extent they are inconsistent herewith.
(b)
Nothing herein shall be deemed to be a waiver or restriction upon any rights and powers available to the Town of Jerusalem to further regulate the subject matter of this subsection.
§ 160-69 Meetings; oaths; minutes.
A.
Meetings. All meetings of the Zoning Board of Appeals shall be held at the call of the Chairman and at such other times as such Zoning Board may determine. All meetings of such Zoning Board of Appeals shall be open to the public.
B.
Oaths. The Chairman or, in his absence, the acting Chairman may administer oaths and compel the attendance of witnesses.
C.
Minutes. The Zoning Board of Appeals shall keep minutes of its proceedings, showing the vote of each member upon every question, or if absent or failing to vote, indicating said fact, and shall also keep records of its examinations and other official actions. Each rule, regulation, every amendment or repeal thereof, and every order, requirement, decision or determination of the Zoning Board of Appeals shall immediately be filed in the office of the Town Clerk and shall be a public record.
§ 160-70 Powers.
The Zoning Board of Appeals shall have the following powers;
A.
Administrative review. To hear and decide appeals from and review any order, requirement, decision or determination made by the Code Enforcement Officer or other administrative officer in carrying out or enforcing any provision of this chapter. The concurring vote of a majority of the members of the Zoning Board of Appeals shall be necessary to reverse any order, requirement, decision or determination of any administrative official or to decide in favor of the applicant any matter upon which it is required to pass under any such ordinance.
B.
Special use permits. To hear and decide applications for special use permits as specified in Article X of this chapter and to authorize issuance of special use permits as specifically provided therein. A majority vote of the members of the Zoning Board of Appeals shall be necessary to grant a special use permit.
C.
Variances. The Zoning Board of Appeals shall have the power, after public notice and hearing and in accordance with the requirements of law and this chapter, to grant use variances and area variances as those terms are defined herein. A majority vote of the members of the Zoning Board of Appeals shall be necessary to grant a variance. Where an action is the subject of a referral to the Yates County Planning Board, the voting provisions of § 239-m of the General Municipal Law shall apply.
[Amended 12-9-1992 by L.L. No. 2-1992; 2-15-2012 by L.L. No. 1-2012]
§ 160-70.1 Variances; procedure.
[Added 2-15-2012 by L.L. No. 1-2012]
A.
Use variances.
(1)
If a use variance is granted, the applicant shall obtain site plan review approval from the Planning Board prior to commencing the use and prior to obtaining a Building Permit.
(2)
No use variance shall be granted by the Zoning Board of Appeals without a showing by the applicant that otherwise applicable zoning regulations and restrictions have caused unnecessary hardship.
(a)
Unnecessary hardship. In order to prove such unnecessary hardship the applicant is required to demonstrate to the Zoning Board of Appeals that, with respect to every permitted use under the zoning regulations for the particular district where the property is located, each of the following four criteria is satisfied:
[1]
The applicant cannot realize a reasonable return on the entire parcel of property, and such 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 involved;
[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.
(b)
Reasonable rate of return. In evaluating whether the applicant can realize a reasonable rate of return, the Zoning Board of Appeals shall examine whether the entire original or expanded property holdings of the applicant are incapable of producing a reasonable rate of return (and not just the site of the proposed project). No use variance shall be granted unless, in addition to satisfying all other applicable provisions of law and this chapter, the Zoning Board of Appeals finds that the applicant has clearly demonstrated, by detailed "dollar and cents proof," the inability to obtain a reasonable return for the entire parcel (and not just the site of the proposed project) and for each and every permitted use in the district (including those uses permitted by special use permit).
(c)
Unique hardship. No use variance shall be granted unless, in addition to satisfying all other applicable provisions of law and this chapter, the Zoning Board of Appeals finds that the entire parcel of which the project is a part possesses unique characteristics that distinguish it from other properties in the area.
(d)
Essential character of the neighborhood. In making its determination of whether the proposed project will alter the essential character of the neighborhood, the Zoning Board of Appeals shall take into account factors that are of vital importance to the citizens of the Town including, without limitation, the rural residential, agricultural and historic character of the Town; its irreplaceable recreation and tourism sites; the extent of hazard to life, limb or property may result from the proposed project; health impacts; the social and economic impacts of traffic congestion, noise, dust, odors, emissions, solid waste generation and other nuisances; the impact on property values; and whether the applicant will use a style of development that will result in degradation to the air quality, water quality or scenic and natural resources of the Town. In order to find that the proposed project does not alter the essential character of the neighborhood, the Zoning Board of Appeals shall interpret the public interest in said essential character of the neighborhood to require, at a minimum, that the project will not do any of the following:
[1]
Pose a threat to the public safety, including public health, water quality or air quality;
[2]
Cause an extraordinary public expense; or
[3]
Create a nuisance.
(e)
Self-created hardship. The Zoning Board of Appeals may find that the applicant suffers from a self-created hardship in the event that the Board finds that:
[1]
The applicant's inability to obtain a reasonable return on the property as a whole results from having paid too much or from a poor investment decision;
[2]
The applicant previously divided the property and is left with only a portion which suffers from some unique condition for which relief is sought and which did not apply to the parcel as a whole; or
[3]
When the applicant purchased the property, he or she knew or should have known the property was subject to the zoning restrictions.
(3)
In addition to the application requirements from time to time established pursuant to law and this chapter, an application for any use variance shall contain a typewritten narrative explaining what the application is for, and how the project meets or exceeds all of the criteria for a use variance, including:
(a)
Competent financial evidence. Competent financial evidence containing reasonable specification of the nature and factual particulars of such claim, and articulating the basis for the applicant's claim, and including, at a minimum (as to the entire parcel of which the proposed project is a part):
[1]
Date of acquisition;
[2]
The purchase price;
[3]
Present value of the property;
[4]
The amount of real estate taxes;
[5]
The amount of mortgages or liens and other expenses;
[6]
The asking price for the property when it had been offered for sale;
[7]
The costs of demolishing any existing structures on the property;
[8]
Cost of erecting a new building(s) for each and every permitted use in the zoning district (including uses allowed by special use permit);
[9]
Efforts to market the property; and
[10]
[10] A schedule of all other property in common ownership at either the date of the enactment of this chapter or thereafter.
(b)
Competent financial evidence must include "dollars and cents proof" such as appraisals, economic studies, and any other evidence supporting the applicant's contention that the desired relief is appropriate, including appraisals relating to any alleged diminution of all or substantially all of the fair market value of property. For the purposes hereof, common ownership means all other interests in property either located within the Town or contiguous to the Town that is held by the any of the applicants (if more than one), whether such ownership is of a legal or equitable interest, in whole or in part, contiguous or not, and whether such property interest is held by any of the applicants through a legal or equitable interest in a(nother) corporation, partnership, trust, business, entity, association, fund, joint venture, or individually.
(c)
Unique nature of the property. The applicant must provide evidence demonstrating the unique nature of parcel as a whole. The fact that the improvements already existing at the time of the application are old, obsolete, outmoded or in disrepair or the fact that the property is then unimproved shall not be deemed to make the plight of the property unique or to contribute thereto. Exceptional topographic conditions are an example of a factor demonstrating the unique nature of the property.
(d)
Alteration of the essential character of the neighborhood. The applicant must demonstrate that the proposed project will not change the essential character of the neighborhood with regard to physical, economic, social or environmental elements. Adverse impacts to the essential character of the neighborhood include, but are not limited to, decreased quality or increased quantity of stormwater runoff, increased soil erosion, increased traffic congestion, decreased road quality, impairment of the scenic or rural character of roads, increased noise, dust, odor and/or glare, reduced wildlife habitat, decreased air quality, decreased water quality, impairment of the viewshed, creation of solid wastes, negative impacts on sustainability efforts, increased social costs, increased emergency response times, negative impacts to public infrastructure, decreased property values, and negative impacts on the health of area residents.
(e)
Hardship not self-created. In order to show that the hardship is not self-created, the applicant must demonstrate that either:
[1]
When the property was purchased the zoning restrictions from which a use variance is now sought were not in existence or did not otherwise apply; or
[2]
Some other change has occurred since the applicant's purchase which makes the use nonconforming, as long as the change was not caused by the applicant.
(4)
The Zoning Board of Appeals, in the granting of use variances, shall grant only the minimum variance that it shall deem necessary and adequate to allow an economically beneficial use of the property, and at the same time preserve and protect the essential character of the neighborhood and the health, safety and welfare of the community.
(5)
The Zoning Board of Appeals, in the granting of use variances, shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed project. 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 use variance may have on the neighborhood or community. Such conditions may include, but are not limited to, landscaping, lighting, access and egress, signs, screening, architectural features, location and layout of buildings, limitations upon the use or characteristics of the use which are reasonably related to the public health, safety and general welfare and as may be necessary to carry out the intent of this chapter. If the applicant refuses to accept such requirements and conditions, the use variance shall be denied.
(6)
In addition to all other application requirements from time to time established pursuant to law and this chapter, the following reports shall be required to be submitted in connection with any appeal or application for a use variance concerning what is otherwise an explicitly prohibited use (as defined in § 160-141). The purpose of these reports in the context of otherwise explicitly prohibited uses is to assist the Zoning Board of Appeals in its determination as to the impact of a proposed project on the Town and/or the essential character of the neighborhood and/or to determine whether the proposed project complies with the requirements of this chapter:
(a)
Environmental Assessment Form. A completed draft of an Environmental Assessment Form, Part I.
(b)
Description of surrounding uses. The approximate location of all neighboring residential, hamlet, park, recreational, and agricultural areas, as well as all county-designated unique natural areas and locally designated open space, environmental, scenic, and historic areas, and critical environmental areas (if any) within a two-mile radius of the perimeter of the site of the proposed use.
(c)
Traffic impact report. A traffic impact report containing:
[1]
The proposed traffic circulation plan, the projected number of motor vehicle trips to enter or leave the site, estimated for daily and peak hour traffic levels;
[2]
Existing and proposed daily and peak traffic hour levels as road capacity levels;
[3]
A determination of the area of impact of traffic to and from the proposed project;
[4]
The proposed traffic routes to the nearest intersection with an arterial highway, including gross weights and heights of vehicles;
[5]
The projected traffic flow pattern including vehicular movements at all major intersections likely to be affected by the proposed project;
[6]
The impact of this traffic upon existing abutting public and private ways in relation to existing road capacities;
[7]
A traffic impact analysis of the effects of the proposed project on the transportation network in the Town using passenger car equivalents;
[8]
Articulation of the effects and impacts of the proposed project on traffic based on existing conditions and projected future background traffic on the state, county, and Town road system;
[9]
Evaluation of whether the resulting traffic conditions are likely to hinder the passage of police, fire and emergency response vehicles, or degrade the quality of life, and/or otherwise contribute to hazardous traffic conditions; and
[10]
Determination of whether there is sufficient road frontage so that any vehicle leaving the site may turn into the lane of traffic moving in the desired direction and be channeled within such lane before crossing the nearest intersection or proceeding along the road and any vehicle entering the property may turn out of the nearest lane of traffic without interfering with other traffic.
(d)
Road impact report. An evaluation of:
[1]
Appropriate roadway geometry, including required road widths, bridge widths, starting and stopping sight distances, intersection sight distances, horizontal and vertical curves along the proposed traffic routes;
[2]
The adequacy of existing pavement structures along the proposed traffic routes to accommodate the full weight load of any high-impact trucks likely to be used in connection with the proposed project; and
[3]
Impacts to the rural or scenic character of any roads along the proposed traffic route.
(e)
Transportation plan. A description of ingress and egress through the proposed project site through which equipment and supplies will be delivered and which will provide access during and after construction, and identification of any roads, streets, intersections, bridges, and other facilities along the proposed traffic route that do not meet New York State Department of Transportation standards. Such plan shall describe any anticipated improvements to existing roads, bridges, or other infrastructure, any new road or access construction, measures which will be taken to avoid damaging access/traffic routes and measures that will be taken to restore damaged routes following construction, and measures to maintain the scenic and/or rural characteristics of such roads.
(f)
Noise impact report. A report on the following topics:
[1]
The existing audible conditions at the project site to identify a baseline sound presence and preexisting ambient noise, including seasonal variation;
[2]
A description and map of sound-producing features of the proposed project from any noise-generating equipment and noise-generating operations that will be conducted in connection with the proposed project site, including noise impacts from truck traffic travelling within the Town to and from the proposed project;
[3]
For the noise generated by construction and use of the proposed project, the range of noise levels and the tonal and frequency characteristics expected, and the basis for the expectation;
[4]
A description and map of the existing land uses and structures including any sensitive sound receptors (i.e., residences, hospitals, libraries, schools and places of worship, parks, areas with outdoor workers) within one mile of the project parcel boundaries (said description shall include the location of the structure/land use, distances from the proposed project, and expected decibel readings for each receptor);
[5]
The report shall cover low-frequency, A-weighted, infrasound, pure tone, and repetitive/impulse noise; and
[6]
The report shall describe the project's proposed noise-control features, including specific measures proposed to protect workers and mitigate noise impacts for sensitive receptors.
(g)
Visual assessment. A visual presentation of how the site of the proposed project will relate to and be compatible with the adjacent and neighboring areas, within a two-mile radius of the perimeter of the site of the proposed project. This presentation shall include computerized photographic simulation showing the site during construction and fully developed and demonstrating any visual impacts from strategic vantage points. Color photographs of the proposed site from at least two locations accurately depicting the existing conditions shall be included. The study shall also indicate the color treatment of the facility's components and any visual screening incorporated into the project that is intended to lessen visual prominence.
(h)
Report of natural gas and/or petroleum extraction, exploration or production wastes and other wastes. A report of:
[1]
A description of natural gas and/or petroleum extraction, exploration or production wastes (as that term is defined at § 160-141) and other solid wastes, industrial wastes, hazardous wastes and pollutants expected to be produced, stored, injected, discarded, discharged, disposed, released, or maintained on the project site;
[2]
A description of controls and practices to eliminate or minimize release all such materials into the environment; and
[3]
A plan for ultimate disposal of such materials whether on or off-site.
(i)
Sustainability analysis. A discussion of:
[1]
The extent of the use of nonrenewable resources during the initial and continued phases of the proposed project;
[2]
The expected duration of the initial and continued phases of the proposed project; and
[3]
The extent to which the proposed project may contribute to an irreversible commitment to the continuation of this proposed use by future generations.
(j)
Compatible uses report. A discussion of characteristics of the proposed project that may decrease the Town's and/or the neighborhood's suitability for other uses such as residential, commercial, historical, cultural, tourism, recreational, environmental or scenic uses.
(k)
Fiscal impact assessment. An assessment describing the adverse effects and impacts on Town revenue and costs necessitated by additional public facility and service costs likely to be generated by the proposed project.
(l)
Fire prevention, equipment failure and emergency response report. A report containing:
[1]
Description of the potential fire, equipment failures and emergency scenarios associated the proposed project that may require a response from fire, emergency medical services, police or other emergency responders;
[2]
An analysis of the worst-case disaster associated with the proposed project and the impact of such a disaster upon the health, safety and welfare of the inhabitants of the Town and their property;
[3]
Designation of the specific agencies that would response to potential fires, equipment failures, accidents or other emergencies;
[4]
Description of all emergency response training and equipment needed to response to a fire, accident, equipment failure or other emergency, including an assessment of the training and equipment available to local agencies; and
[5]
The approximate or exact location of all fire, police, and emergency response service facilities within a five-mile radius of the perimeter of the site of the proposed use; and a detailed fire control and pollution prevention and emergency response plan.
(m)
Public facilities and services assessment. An assessment describing:
[1]
Whether current Town public facilities and services, including water supply, fire protection, school services, recreation facilities, police protection, roads and stormwater facilities, are adequate for the proposed project (taking into account all other uses that have been permitted or are currently operating in the Town);
[2]
A comparison of the capacity of the public services and facilities to the maximum projected demand that may result from the proposed project (in determining the effect and impact of the proposed project on fire, police, and emergency services, the review shall take into consideration response times, and the number and location of available apparatus and fire, police and emergency service stations that are manned by full time professional service personnel; and where applicable, calculation of response time shall also include the time it takes volunteer emergency personnel to get to their stations); and
[3]
A review of the impact of the proposed project on the safety of all children going to and from school by car, bus, bicycle, and walking during and outside of school zone hours and whether safety measures such as signaled cross walks, elevated sidewalks, green space buffers for pedestrians/bikes where established walking/biking route overlap/run along intended truck routes so as to prevent accidents.
(n)
Property value assessment. A property value analysis, prepared by a licensed appraiser in accordance with industry standards, regarding the potential impact of the project on the value of properties adjoining the project site.
(o)
Health impact assessment. A human health impact assessment that identifies ways in which the proposed project could adversely affect the health of Town residents and a priority list of recommendations to minimize the potential health impacts of the proposed project. The health impact assessment shall include:
[1]
A risk assessment of possible impact of chemical exposure on the health of residents, including the chemical abstract service number of all chemicals proposed to be used or generated at the project site;
[2]
An assessment of possible health effects due to industrial operations in non-heavy-industrial zoned areas;
[3]
An assessment of possible health effects due to community changes including the presence of an industrial activity in a previously non-heavy-industrial area, a perceived loss of shared community ideals and cohesion, declining property values, impacts to the education system and sudden changes in population numbers, demographics and customs; and
[4]
Proposed remedies to address principal findings.
(p)
Impacted agency and utility recommendations. A written recommendation from every "involved agency" and "interested agency," as those terms are defined in 6 NYCRR 617.2(t) and (u), respectively, as amended, and from every federal, state, county, Town and other agency, as well as any utility, determined by the Zoning Board of Appeals to be affected by the proposed project setting forth whether they support or do not support the proposed project and their reasons therefor.
[Added 4-21-2021 by L.L. No. 1-2021]
B.
Area variances.
(1)
In making a determination whether to grant, grant conditionally, or deny an application for an area variance, the Zoning Board of Appeals shall take into consideration the benefit to the applicant if the area variance is granted, and balance this benefit against the detriment to the health, safety and welfare of the neighborhood or community by making such grant. In making such determination the Board shall consider each of the following factors: 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; whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; whether the requested area variance is substantial; whether the proposed area variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and whether the alleged difficulty was self-created; which consideration shall be relevant to the decision of the Board of Zoning Appeals, but which consideration shall not necessarily preclude the granting of the area variance.
(2)
The Zoning Board of Appeals, in the granting of area variances, shall grant the minimum area 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)
In addition to the application requirements from time to time established pursuant to law and this chapter, applications for an area variance shall contain a typewritten narrative explaining what the application is for, and how the project meets or exceeds all of the criteria for an area variance.
(4)
The Zoning Board of Appeals shall, in the granting of area variances, 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 area variance may have on the neighborhood or community. If the applicant refuses to accept such requirements and conditions, the area variance shall be denied.
(5)
In addition to the application requirements from time to time established pursuant to law and this chapter, applications for an area variance shall contain a written recommendation from every "involved agency" and "interested agency," as those terms are defined in 6 NYCRR 617.2(t) and (u), respectively, as amended, and from every federal, state, county, Town and other agency, as well as any utility, determined by the Zoning Board of Appeals to be affected by the proposed project setting forth whether they support or do not support the requested area variance and their reasons therefor.
[Added 4-21-2021 by L.L. No. 1-2021]
§ 160-71 Referral of matters to County Planning Board.
In accordance with the policy and procedures provided for by Chapter 24, Article 12-B, § 239-l and § 239 of the General Municipal Law,[1] any special use permit or variance affecting real property lying within a distance of 500 feet of any boundary of the Town of Jerusalem or from the boundary of any existing or proposed county or state park or other recreational area; or from the right-of-way of any existing or proposed county or state parkway, throughway, expressway, road or highway; or from the existing or proposed right-of-way of any stream or drainage channel lines; or from the existing or proposed boundary line of any county- or state-owned land in which a public building or institution is situated shall be referred to the Yates County Planning Board. The term "proposed" shall be deemed to include only those recreation areas, parkways, throughways, expressways, roads or highways which are shown on a county plan of Yates County adopted pursuant to § 239-d, Subdivision 2, of the General Municipal Law. If the Yates County Planning Board fails to report within 30 days after receipt of a full statement of such referred material, the Zoning Board of Appeals may act without such report. If the Yates County Planning Board disapproves of the proposal or recommends modifications thereof, the Zoning Board of Appeals shall not act contrary to such disapproval or recommendations, except by a vote of a majority plus one of all members thereof and after the adoption of a resolution setting forth the reason for the contrary action.
[1]
Editor's Note: See General Municipal Law §§ 239 and 239-l.
§ 160-72 Procedures relative to appeals.
[Amended 1-8-2003 by L.L. No. 1-2003]
A.
Who may appeal. An appeal to the Zoning Board of Appeals for administrative review or variance may be taken by any person, firm or corporation aggrieved or by any governmental officer, department, board or bureau affected by any decision of the Code Enforcement Officer, based in whole or in part upon the provisions of this chapter. Such an appeal shall be taken by filing with the Zoning Board of Appeals a notice of appeal, specifying the grounds thereof. The Code Enforcement Officer shall forthwith transmit to the Zoning Board of Appeals all papers constituting the record upon which the action appealed from was taken.
B.
Time of appeal. Said notice of appeal shall be filed within 60 days from the date upon which the notice of refusal of a building permit or refusal of a certificate of occupancy is mailed by the Code Enforcement Officer, and failure to file notice of appeal within 60 days shall constitute a waiver of the right of appeal.
C.
Stay of proceedings. An appeal stays all proceedings in furtherance of the action appealed from, unless the Code Enforcement Officer from whom the appeal is taken certifies to the Zoning Board of Appeals, after the notice of appeal shall have been filed with him, that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order, which may be granted by the Zoning Board of Appeals or by a court of record, on application, a notice to the Code Enforcement Officer, and on due cause shown.
§ 160-73 Hearings; notices; decisions; costs.
A.
Hearing. The Zoning Board of Appeals shall fix a reasonable time for the hearing of any application for variance, the hearing of an appeal for administrative review or the application for a special use permit.
B.
Notice. The Zoning Board of Appeals shall give public notice of any application for a variance, for the hearing of appeal for administrative review or for the hearing of any application for a special use permit in the following manner:
[Amended 2-20-2008 by Ord. No. 1-2008]
(1)
By the publication in the official paper of a notice of such hearing at least 10 business days prior to the date thereof
(2)
By mail.
(a)
By mailing notices of such hearing at least 10 business days before the hearing to:
[1]
The parties.
[2]
The regional state park commission having jurisdiction over any state park or parkways within 500 feet of the property affected by such appeal.
[3]
The clerk of an adjacent town or village located within 500 feet of the property affected by such appeal.
[4]
All persons, firms or corporations owning property or residing within 200 feet of the location of the property affected by such appeal.
[5]
The Yates County Planning Board when required by § 239-m of the General Municipal Law.
(b)
This mailing shall be by certified mail, without return receipt.
(3)
The notice shall contain the following information:
(a)
The name of the applicant.
(b)
The location of the property.
(c)
The relief requested in specific detail to inform the public of the actual relief, if granted. For area variance applications, this notice shall state, at a minimum, the dimensional or physical requirements of this chapter the applicant wants to vary along with a statement of how, specifically, the applicant wants to vary such requirements. For use variance applications, this notice shall state, at a minimum, the specific use the applicant wants to conduct on the property that is not permitted by this chapter.
[Amended 4-21-2021 by L.L. No. 1-2021]
(d)
The time and place of the meeting at which the application will be heard.
(e)
A statement that the full application may be examined at the Town office and the times when the office is open for that purpose.
C.
Decisions. At the hearing, any party may appear in person or by agent or by attorney, and the Zoning Board of Appeals shall decide the application for variance, appeal for administrative review or the application for a special permit within 60 days after the final hearing, as provided by Town Law, § 267, Subdivision 5.
D.
Costs. All costs of such publication and notice shall be paid by the applicant.
§ 160-74 Time limits for action.
If the variance is granted or the issuance of a permit is finally approved, or other action by the appellant or applicant is authorized, the necessary permits shall be subject to the terms of § 160-65F. Should the appellant or applicant fail to comply with these provisions, it shall be conclusively presumed that the applicant or appellant has waived, withdrawn or abandoned his appeal or his application, and such permissions, variances and permits to him granted shall be deemed automatically rescinded by the Zoning Board of Appeals.
§ 160-75 Scope of powers.
A.
In exercising the above-mentioned powers, such Zoning Board of Appeals may, in conformity with the provisions of this Article, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and shall make such order, requirement, decision or determination as in its opinion ought to be made regarding the premises and, to that end, shall have the powers of the officer from whom the appeal was taken. Notice of such decision shall be given forthwith to all parties in interest.
B.
The Zoning Board of Appeals does not have the power to permit a use prohibited by this chapter.
§ 160-76 Appeal of actions taken by Board.
Any person or person jointly or severally aggrieved by any decision of the Zoning Board of Appeals or of any officer, department, board or bureau of the Town, may apply to the Supreme Court for relief by a proceeding under Article 78 of the Civil Practice Law and Rules, and:
A.
It must be instituted within 30 days after the filing of a decision in the office of the Town Clerk.
B.
The Court may take evidence or appoint a referee to take such evidence as it may direct, and report the same, with its findings of fact and conclusions of law, if it shall appear that testimony is necessary for the proper disposition of the matter.
C.
The Court, at Special Term, shall itself dispose of the causes on the merits, determining all questions which may be presented for determination.