Kirkland City Zoning Code

A. The Zoning Board of Appeals, which has been previously established, IS continued in accordance with the provisions of § 267 of the Town Law.

B. Appointment of members. The Town Board, pursuant to the powers granted by this article, shall appoint a Board of Appeals consisting of five members, each to serve for a term of five years, and shall designate the Chairperson thereof. In the absence of a Chairperson, the Board of Appeals may designate a member to serve as Acting Chairperson. The Town Board may provide for compensation to be paid to experts, clerks and a secretary and provide for such other expenses as may be necessary and proper, not exceeding the appropriation made by the Town Board for such purpose. In making such appointments, the Town Board may require Board of Appeals members to complete training and continuing education courses in accordance with any local requirements for the training of such members.

C. Appropriation for Zoning Board of Appeals. The Town Board is hereby authorized and empowered to make such appropriation as it may see fit for Zoning Board of Appeals expenses. The Zoning Board of Appeals shall have the power and authority to employ experts, clerks and a secretary and to pay for their services and to provide for such other expenses as may be necessary and proper, not exceeding in all the appropriation that may be made therefor by the Town Board for such Zoning Board of Appeals.

D. Town Board members ineligible. No person who is a member of the Town Board shall be eligible for membership on such Board of Appeals.

E. Terms of members first appointed. In the creation of a new Board of Appeals or the reestablishment of terms of an existing Board, the appointment of members to the Board shall be for terms so fixed that one member’s term shall expire at the end of the calendar year in which such members were initially appointed. The remaining members’ terms shall be so fixed that one member’s term shall expire at the end of each year thereafter. At the expiration of each original member’s appointment, the replacement member shall be appointed for a term which shall be equal in years to the number of members of the Board.

F. Terms of members now in office. Members now holding office for terms which do not expire at the end of a calendar year shall, upon the expiration of their term, hold office until the end of the calendar year, and their successors shall then be appointed for terms which shall be equal in years to the number of members of the Board.

G. Increasing membership. Any Town Board may, by local law, increase a three-member Board of Appeals to five members. Additional members shall be first appointed for single terms as provided by resolution in order that the terms of the members shall expire in each of five successive years, and their successors shall thereafter be appointed for full terms of five years. No such additional member shall take part in the consideration of any matter for which an application was on file with the Board of Appeals at the time of his or her appointment.

H. Decreasing membership. A Town Board which has increased the number of members of the Board of Appeals to five may, by local law, decrease the number of members of the Board of Appeals to three to take effect upon the next two expirations of terms. Any Board of Appeals which, upon the effective date of this section has seven members, may continue to act as a duly constituted Zoning Board of Appeals until the Town Board, by local law, reduces such membership to three or five. However, no incumbent shall be removed from office except upon the expiration of his or her term.

I. Vacancy in office. If a vacancy shall occur otherwise than by expiration of term, the Town Board shall appoint the new member for the unexpired term.

J. Removal of members. The Town Board shall have the power to remove, after public hearing, any member of the Zoning Board of Appeals for cause. Any Zoning Board of Appeals member may be removed for noncompliance with minimum requirements relating to meeting attendance and training as established by the Town Board by local law.

K. Chairperson duties. All meetings of the Board of Appeals shall be held at the call of the Chairperson and at such other times as such Board may determine. Such Chairperson, or in his or her absence, the Acting Chairperson, may administer oaths and compel the attendance of witnesses.

The Zoning Board of Appeals shall adopt rules of procedure governing the organization of the Board and the conduct of its meeting.

A. Meetings of such Zoning Board of Appeals shall be open to the public to the extent provided in Article 7 of the Public Officers Law. Such 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. Meetings of the Board shall be held as provided in the rules of procedure adopted by the Board.

B. 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 office of the Town Clerk within five business days of the issuance of the written decision and shall be a public record.

C. Assistance to Zoning Board of Appeals. Such Board shall have the authority to call upon the Town Building Inspector, Fire Chief, Highway Superintendent, other local and county officials and its designated private consultants, in addition to representatives of federal and state agencies, including but not limited to the United States Department of Agriculture Soil Conservation Service, the New York State Department of Transportation and the New York State Department of Environmental Conservation. Such department, agency or employee may be reimbursed by the applicant for any expenses incurred as a result of such assistance. Should the Board decide that the services of a private consultant are needed during the course of the project review, the associated costs incurred for the private consultants’ services shall be paid in full by the applicant prior to any hearing which the applicant seeks.

A. Orders, requirements, decisions, interpretations and determinations. The Zoning Board of Appeals may reserve or affirm, wholly or partly, or may modify the order, requirement, decision, interpretation or determination appealed from and shall make such order, requirement, decision, interpretation or determination as in its opinion ought to have been made in the matter by the administrative official charged with the enforcement of such ordinance or local law and to that end shall have all the powers of the administrative official from whose order, requirement, decision, interpretation or determination of the appeal is taken. 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 the Building Inspector, or any such other administrative official, or to grant a use variance or area variance. Such appeal may be taken by any person aggrieved, or by an officer, department, board or bureau of the Town.

B. Time of appeal. Such appeal shall be taken within 60 days after the filing of any order, requirement, decision, interpretation or determination of the Building Inspector or any other administrative official charged with the enforcement of such ordinance or local law by filing with such Building Inspector or other administrative official and with the Zoning Board of Appeals a notice of appeal, specifying the grounds thereof and the relief sought. The Building Inspector or other administrative official from whom the appeal is taken shall forthwith transmit to the Zoning Board of Appeals all the papers constituting the record upon which the action appealed was taken.

C. Hearing on appeal. The Zoning Board of Appeals shall fix a reasonable time for the hearing of the appeal or other matter referred to it and give public notice of such hearing by publication in a paper of general circulation in the Town at least five days prior to the date thereof. The cost of sending or publishing any notices relating to such an appeal shall be borne by the appealing party and shall be paid to the Board prior to the hearing of such appeal. Upon the hearing, any party may appear in person or by agent or attorney.

An appeal shall stay all proceedings in furtherance of the action appealed from, unless the Building Inspector or other administrative official charged with the enforcement of such ordinance or local law, from whom the appeal was taken, certified to the Zoning Board of Appeals, after the notice of appeal shall have been filed with the Building Inspector or other administrative official, 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 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, on notice to the Building Inspector or other administrative official from whom the appeal is taken and on due cause shown.

The Zoning Board of Appeals shall have the following powers and duties prescribed by statute and this chapter:

A. Definitions. As used III this section, the following terms shall have the meanings indicated:

AREA VARIANCE – The authorization by the Zoning Board of Appeals for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations.

USE VARIANCE – The authorization by the Zoning Board of Appeals for the use of land for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations.

B. Interpretation. The Zoning Board of Appeals may, on appeal from a determination of the Building Inspector, hear and decide on questions where it is alleged that there is an error in any order, requirement, decision or determination made by the Building Inspector involving the interpretation of any provision of this chapter.

C. Orders, requirements, decisions, interpretations or determinations. The Zoning Board of Appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, interpretation or determination appealed from and shall make such order, requirement, decision, interpretation or determination as in its opinion ought to have been made in the matter by the administrative official charged with the enforcement of such ordinance or local law and to that end shall have all the powers of the administrative official from whose order, requirement, decision, interpretation or determination the appeal is taken.

D. Use variances.

(1) The Zoning Board of Appeals, on appeal from the decision or determination of the administrative official charged with the enforcement of such ordinance or local law, shall have the power to grant use variances, as defined herein.

(2) No such use variance shall be granted by a Zoning Board of Appeals 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 Zoning Board of Appeals that for each and every permitted use under the zoning regulations for the particular district where the property is located:

(a) The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence.

(b) The alleged hardship relating to the property in question is unique and does not apply to a substantial portion of the district or neighborhood.

(c) The requested use variance, if granted, will not alter the essential character of the neighborhood.

(d) The alleged hardship has not been self-created.

(3) The Zoning 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.

E. Area variances.

(1) 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 such ordinance or local law, to grant area variances as defined herein.

(2) 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 by such grant. In making such determination, the Board shall also consider:

(a) 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.

(b) Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance.

(c) Whether the requested area variance is substantial.

(d) Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.

(e) Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the Zoning Board of Appeals, but shall not necessarily preclude the granting of the area variance.

(3) The Zoning Board of Appeals, in the granting of the 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.

F. Imposition of conditions. The Zoning Board of Appeals shall, in the granting of both use variances and 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 and/or the period of time such variance will 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 such variance may have on the neighborhood or community.

G. Approval of special use permits,

(1) Definition of “special use permit.” As used in this section, the term “special use permit” shall mean an authorization of a particular land use which is not a permitted as-of-right use in a zoning ordinance, but may be approved by the Zoning Board of Appeals if it complies with conditions imposed by the ordinance to assure that the proposed use is in harmony with such zoning ordinance and will not adversely affect the neighborhood if such conditions are met. Furthermore, the Zoning Board of Appeals may restrict or deny such permit should it find that the conditions described at Subsection G(4) are not met. A special use permit shall not be granted as a matter of right.

(2) Approval of special use permits. The Zoning Board of Appeals may grant special use permits as set forth in this chapter. The Zoning Board of Appeals may refer the matter to the Planning Board for site plan review or condition its approval on Planning Board approval of the site plan. The Planning Board, upon such referral, may institute the SEQR review process.

(3) Application for area variance. Notwithstanding any provision of law to the contrary, where a proposed special use permit contains one or more features which do not comply with the zoning area regulations, application may be made to the Zoning Board of Appeals for an area variance pursuant to § 267-b of the Town Law, without the necessity of a decision or determination of an administrative official charged with the enforcement of the zoning regulations.

(4) Conditions attached to the issuance of special use permits. The Zoning Board of Appeals shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed special use permit. These may include, but not necessarily be limited to, the following:

(a) The use shall be of such location, size and character that it will be in harmony with the appropriate and orderly development of the district in which it is situated and will not be detrimental to the orderly development of adjacent districts.

(b) The location and size of the use, the nature and intensity of the operations involved in or conducted in connection therewith, its site layout and its relation to streets giving access to it shall be such that traffic to and from the use and the assembly of persons in connection with it will not be hazardous or inconvenient to the neighborhood or conflict with the normal traffic of the neighborhood. In applying this standard, the Board shall consider, among other things, convenient routes of pedestrian traffic thoroughfares and to street and road intersections and the general character and intensity of development of the neighborhood.

(c) The location and height of the building, the location, nature and height of walls and fences and the nature and extent of landscaping on the site shall be such that the use will not hinder or discourage the proper development and use of adjacent land and building or impair the value itself. Upon its granting of said special use permit, any such conditions must be met in connection with the issuance of permits by applicable enforcement agents or officers of the Town.

(d) It shall be the burden upon any applicant seeking a special use permit to establish that the proposed use is in harmony with this chapter and will not adversely affect the neighborhood.

(5) Waiver of conditions. The Town Board may further empower the Zoning Board of Appeals to, when reasonable, waive any preestablished requirements for the approval, approval with modifications or disapproval of special use permits submitted for approval. Any such waiver, which shall be subject to appropriate conditions set forth in the ordinance or local law adopted pursuant to this section, may be exercised in the event that any such requirements are found not to be requisite in the interest of the public health, safety or general welfare or inappropriate to a particular special use permit.

(6) Public hearing and decision on special use permits. The Zoning Board of Appeals shall conduct a public hearing within 62 days from the day an application is received on any matter referred to it under this section. Public notice of said hearing shall be printed in a newspaper of general circulation in the Town at least five days prior to the date thereof. The Zoning Board of Appeals shall decide upon the application within 62 days after the 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. The decision of the Zoning Board of Appeals on the application after the holding of the public hearing shall be filed in the office of the Town Clerk within five business days after the day such decision is rendered, and a copy thereof mailed to the applicant.

(7) Notice to applicant and county, metropolitan or regional planning agency. At least 10 days before such hearing, the Zoning Board of Appeals shall mail notices thereof to the applicant and to the county, metropolitan or regional planning agency, as required by § 239-m of the General Municipal Law, which 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.

(8) Compliance with State Environmental Quality Review Act. The Zoning Board of Appeals shall comply with the provisions of the State Environmental Quality Review Act under Article 8 of the Environmental Conservation Law and its implementing regulations as codified in 6 NYCRR 617.

A. Time of decision. The Zoning Board of Appeals shall decide upon 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.

B. Filing of decision and notice. The decision of the Zoning Board of Appeals on the appeal shall be filed in the office of the Town Clerk within five business days after the day such decision is rendered, and a copy thereof mailed to the applicant.

C. Notice to park commission or planning agency. At least five days before such hearing, the Zoning Board of Appeals shall mail notices thereof to the parties; to the regional state park commission having jurisdiction over any state park or parkway within 500 feet of the property affected by such appeal; and to the county, metropolitan or regional planning agency, as required by § 239-m of the General Municipal Law, which 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.

D. Compliance with State Environmental Quality Review Act. The Zoning Board of Appeals shall comply with then provisions of the State Environmental Quality Review Act under Article 8 of the Environmental Conservation Law and its implementing regulations as codified in 6 NYCRR 617.

E. The Board shall also retain in its files a copy of each decision, which files shall be available for inspection by the public. Each decision shall set forth fully the reasons for the decision of the Board and the findings of fact on which the decision was based. Such findings and reasons shall include references to the standards of subsections of this article where the appeal is for a variance or a special permit.

F. At its discretion, the Zoning Board of Appeals may require the applicant receiving a variance or special permit to file, in proper form for filing, a copy of the Board’s decision granting such variance or special permit in the office of the Oneida County Clerk.