Johnstown Town City Zoning Code
ARTICLE XII
Zoning Board of Appeals
§ 84-56 General rules.
General rules - appeals, variances. Appeals from orders, decisions, requirements, interpretations, determinations of Code Enforcement Officer. The Zoning Board of Appeals is vested with the authority to interpret the provisions of this chapter on a written appeal from a written decision, determination, order, requirement or interpretation made by the Code Enforcement Officer. As such, the Zoning Board of Appeals may reverse or affirm, wholly or partly, or may modify the written decision, determination, order, requirement or interpretation appealed from, and shall make such decision, determination, order, requirement, or interpretation as in its opinion ought to have been made in the matter by the Code Enforcement Officer. Such action by the Zoning Board of Appeals shall be referred to herein as an interpretation. In so doing, the Zoning Board of Appeals shall have all the powers of the administrative official from whose written decision, determination, order, requirement, or interpretation the appeal is taken.
Authorization for Zoning Board of Appeals to grant variances. In accordance with Section 267-b of the Town Law of the State of New York, the Zoning Board of Appeals shall have the power, upon appeal from a determination by the Code Enforcement Officer, and after public notice and hearing, to vary or modify the application of any of the provisions of this chapter relating to the use, construction, or alteration of structures or the use of land, so that the spirit of this chapter is observed, public safety and welfare secured, and substantial justice done. The Zoning Board of Appeals shall also have the power to vary or modify the dimensional or area requirements and restrictions of this chapter upon referral from the Planning Board and without a written decision or determination made by the Code Enforcement Officer in the case of a site plan, special use permit or subdivision application that the Planning Board has before it. The specific standards for the grant of use and area variances are set forth below. The definitions of use and area variances are set forth in Article XV of this chapter.
Method of appeal. Such appeal may be taken by any person aggrieved by the written decision, determination, order, requirement or interpretation made by the Code Enforcement Officer or by an officer, department, board or bureau of the Town. The determination of whether an applicant is aggrieved shall be determined by the Zoning Board of Appeals, after hearing, as part of the appeal process set forth below.
Use variances.
The Zoning Board of Appeals, on appeal from a decision or determination of Code Enforcement Officer, shall have the power to grant use variances, authorizing a use of the land which otherwise would not be allowed by this chapter.
No use variance shall be granted without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship. To prove unnecessary hardship the applicant shall demonstrate that for each and every permitted use under the zoning regulations for the particular district where the property is located:
The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;
The alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the land use area or neighborhood;
The requested use variance, if granted, will not alter the essential character of the neighborhood;
The alleged hardship has not been self-created.
The Zoning Board of Appeals, in granting use variances, shall grant the minimum variance that it deems 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.
The Zoning Board of Appeals shall consider any agricultural data statement and whether the variance would have an undue adverse impact on the farm operations identified by the agricultural data statement.
Imposition of conditions. The Zoning Board of Appeals shall, in granting area variances, impose such reasonable conditions and restrictions as are related to and incidental to the proposed use of the property or the period of time such variance shall be in effect. 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 the variance may have on the neighborhood or community.
Area variances.
The Zoning Board of Appeals shall have the power, upon an appeal from a determination of the Code Enforcement Officer, or upon the referral from the Planning Board with respect to a site plan, special use permit or subdivision application it has before it, that the applicant's proposal can not be approved by reason of its failure to meet the dimensional or area regulations of this chapter, to grant area variances from the area or dimensional requirements of this chapter.
In making its determination, the Zoning Board of Appeals 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 of such grant. In making this determination the Board shall also consider:
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 variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or land use area or overlay area; and
Whether the alleged difficulty was self-created, which shall be relevant to the decision of the Board, but which shall not necessarily preclude the granting of the area variance.
The Zoning Board of Appeals, in granting of area variances, shall grant the minimum variance that it deems necessary and adequate, while preserving and protecting the character of the neighborhood and the health, safety, and welfare of the community.
Imposition of conditions. The Zoning Board of Appeals shall, in granting area variances, impose such reasonable conditions and restrictions as are related to and incidental to the proposed use of the property or the period of time such variance shall be in effect. 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 the variance may have on the neighborhood or community.
Procedure for appeals-application.
Time of appeal. An appeal from an order, requirement, decision, interpretation or determination of the Code Enforcement Officer, shall be taken within 60 days after the filing in the Town Clerk's office of such order, requirement, decision, interpretation or determination of the Code Enforcement Officer. In the case of an application for an area variance from a site plan, special use permit or subdivision application before the Planning Board, the appeal shall be taken within 60 days of the date that the Planning Board determined that an area variance is required.
Placement of agenda. In order for an appeal to be placed on the Zoning Board of Appeal's meeting agenda, the required application materials shall be submitted to the Town Clerk at least 14 days prior to the date of the Zoning Board of Appeal's meeting.
Application requirements. In order for an appeal, whether variance or interpretation, to be commenced, the applicant shall submit at least one original and seven copies of the following together with whatever other information the Zoning Board of Appeals deems appropriate:
A Town of Johnstown Zoning Board of Appeals application form.
A plot plan drawn to scale with accurate dimensions providing information sufficient to enable the Board to make an informed decision, and an agricultural data statement as defined below.
A narrative describing the existing and/or proposed use and operation together with the justification for the requested variance or interpretation.
A short-form or long-form SEQRA Environmental Assessment Form (EAF) with Part 1 fully completed by the applicant (a long-form EAF is required for all SEQRA Type I actions, but the Zoning Board of Appeals may require a long-form EAF for unlisted actions if the Board deems that the additional information contained on the long-form would be helpful and appropriate under the circumstances of the appeal).
The application fee as established by the Town Board, and an escrow deposit for reimbursement of cost of Town consultants (if required) pursuant to § 84-9 of this chapter.
The Zoning Board of Appeals may waive or add any requirements for an application submission if it deems appropriate in order to accomplish the purposes set forth herein.
Forward application. Upon submission of an application for a variance or interpretation that appeals a decision, determination or order of the Code Enforcement Officer, the Code Enforcement Officer shall forward to the Zoning Board of Appeals a complete copy of the file on the property that is the subject of the appeal and all the papers constituting the record upon which the action appealed from was taken.
Procedures for hearing and review.
Determining completeness of application. At the first meeting at which an application is first presented as an agenda item, the Zoning Board of Appeals shall determine whether the application is complete for purposes of commencing the review process. If an application is determined to be incomplete, the Zoning Board of Appeals shall notify the applicant in writing as to what aspects of the application submittal are lacking or are otherwise insufficient to start the process. The time-frames for Zoning Board of Appeals action during the review process shall not commence until the submission of a fully complete application with supporting documents and materials and the determination by the Zoning Board of Appeals that the application is complete.
Planning Board recommendation. The Zoning Board of Appeals, in its discretion, may request the Planning Board to make a recommendation on such matter and such recommendation shall become part of the record but shall not be binding upon the Zoning Board of Appeals.
Stay upon appeal. An appeal shall stop all proceedings relating to the action appealed from, unless the Code Enforcement Officer certifies to the Zoning Board of Appeals that by reason of facts stated in the certificate a stay would, in his or her opinion, cause imminent peril to life or property. In that 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 competent jurisdiction. The application for a stay shall be on notice to the Code Enforcement Officer and with due cause shown.
Compliance with state environmental quality review act. The Zoning Board of Appeals shall comply with the provisions of the State Environmental Quality Review Act. The following actions of the Zoning Board of Appeals do not require review under the State Environmental Quality Review Act; Granting of individual setback and lot line variances; granting of an area variance(s) for a single-family and a two-family dwelling; and appeals involving only interpretations of the Zoning Law and not variances other than those area variances previously mentioned.
Referral to County Planning Department. In the case of a variance application and upon receipt of application materials it deems to be complete, the Zoning Board of Appeals shall refer to the County Planning Department any application for a variance affecting real property within 500 feet of the boundary of the Town of Johnstown, the boundary of any existing or proposed county or state park or other recreational area, the boundary of any existing or proposed county or state roadway, the boundary of any existing or proposed right-of-way for a stream or drainage channel owned by the county for which the county has established channel lines, the boundary of any existing or proposed county or state-owned land on which a public building or institution is situated, or the boundary of a farm operation within an agricultural district as defined in Article 25AA of the Agriculture and Markets Law, pursuant to General Municipal Law, Article 12-B, Sections 239-1 and 239-m, as amended. No action shall be taken on applications referred to the County Planning Department until its recommendation has been received, or 30 days have elapsed after its receipt of the complete application, unless the County and Town agree to an extension beyond the thirty-day requirement for the county Planning Department's review. A majority-plus-one vote of the Planning Board shall be required to grant any special use permit which receives a recommendation of disapproval from the county Planning Department because of the referral process specified above, along with a resolution setting forth the reasons for such contrary action.
Notice and hearing on appeal.
Schedule. The Zoning Board of Appeals shall schedule and hold a public hearing on the appeal or other matter referred to it within 62 days of the date that the application for the appeal is considered complete by the Zoning Board of Appeals. The time in which a public hearing shall be held may be lengthened only upon consent of the Applicant and Zoning Board of Appeals.
Public notice. At least five days prior to the date of such hearing, the Zoning Board of Appeals shall give public notice by causing the publication of a notice of such hearing in the official newspaper and by mailing a notice thereof to all adjoining property owners and to any other property owners in the affected area that the Zoning Board of Appeals may require to be notified.
§ 239-m Review. In the case of a hearing held on an application on a property that is located within 500 feet of an adjacent municipality, the Zoning Board of Appeals shall give notice of the hearing to the Clerk of the adjacent municipality, by either mail or electronic transmission, at least 10 days prior to the hearing pursuant to General Municipal Law § 239-m.
Expenses. The cost of sending or publishing any notices relating to such appeal, or a reasonable fee relating thereto, shall be borne by the appealing party and shall be paid to the Zoning Board of Appeals prior to the hearing of such appeal.
Testimony. Upon the hearing, any party may appear in person, or by agent or attorney. The Zoning Board of Appeals may require testimony to be made under oath.
Time of decision. The Zoning Board of Appeals shall decide the appeal within 62 days after the conduct of said hearing. The time within which the Zoning Board of Appeals must render its decision may be extended by mutual consent of the applicant and the Board.
Filing of decision. The decision or notes of the Zoning Board of Appeals on the appeal shall be filed in the Office of Town Clerk within 10 business days after the day such decision is rendered, and a copy thereof mailed to the applicant. The minutes, as approved by the Zoning Board of Appeals, shall be filed in the Town Clerk's Office within 10 business days of the meeting at which the minutes were approved.
Rehearing. A motion for the Zoning Board of Appeals to hold a rehearing to review any order, decision or determination of the Board not previously reheard may be made by any member of the Board. A unanimous vote of all members of the Board then present is required for such rehearing to occur. Such rehearing is subject to the same notice provisions as an original hearing. Upon such rehearing the Board may reverse, modify or annul its original order, decision or determination upon the unanimous vote of all members then present, provided 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.
General conduct of business.
The Zoning Board of Appeals may employ such clerical or other staff or consulting assistance as may be necessary, provided the Town Board has approved the applicant and makes such appointment and it shall not incur expenses beyond the amount of appropriations made available by the Town Board for such purposes.
The Zoning Board of Appeals shall have the power to promulgate written rules of procedure, by-laws, and forms in order to fulfill its responsibilities under this chapter.
All meetings of the Zoning Board of Appeals shall be held at the call of the chairperson and at such other times as the Board may determine. The chairperson or, in his or her absence, the acting chairperson may administer oaths and compel the attendance of witnesses. Meetings of the Zoning Board of Appeals shall be open to the public as required in Article Seven of the Public Officers Law of the State of New York.
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 such fact, and shall also keep records of its examinations and other official actions. The concurring vote of a majority of all members shall be necessary to take action on any matter before it.
Filing requirements. Every rule, regulation, every amendment or repeal thereof, and every order, requirement, decision or determination of the Zoning Board of Appeals shall be filed in the Town Clerk's Office within 10 business days and shall be a public record.
Expiration of appeal decision.
Termination or lapse of variance. Any variance that is not exercised within one year of the date it is issued shall lapse without further hearing by the Zoning Board of Appeals. Likewise, unless otherwise specified by the Zoning Board of Appeals, a decision on any appeal shall expire if the appellant fails to obtain any necessary building or other permit or approval within one year of the date of such decision.
Interpretations binding. Interpretations made by the Zoning Board of Appeals shall not lapse unless reconsidered by the Zoning Board of Appeals and shall be binding on all Boards and officials of the Town.