Marion Town City Zoning Code
ARTICLE VI
Governing Review Boards
§ 308-31 General provisions.
Practical difficulties or unnecessary hardships may result from enforcement of the strict letter of any provisions of any state or local laws, ordinances, codes, rules or regulations adopted by the Town of Marion, in an effort to promote the health, safety and general welfare of the public. In addition, certain uses and activities may be sufficiently different in terms of their nature, location and potential effect on the environment to warrant special review and evaluation. Therefore, boards have been established to govern, review, interpret, modify, vary, approve or disapprove matters brought before it, all in keeping with the spirit of the law, ordinance, or code as may apply. Designated boards of review are identified as follows:
A.
Zoning Board of Appeals. (See § 308-32.)
B.
Town Planning Board. (See § 308-34.)
C.
Wayne County Planning Board. (See § 308-35.)
D.
New York State Regional Board of Review. (See § 308-33 and Section 1205.2 of Title 19 of NYCRR.)[1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
§ 308-32 Zoning Board of Appeals.
A.
Creation, appointment, and organization. A Board of Appeals is hereby created. Said Board shall consist of five members appointed by the Town Board, from which the Town Board shall designate a Chairman. No person who is a member of the Town Board shall be eligible for membership for such Board of Appeals. Of the members of the Board first appointed: one shall hold office for a term of one year; one shall hold office for a term of two years, one shall hold office 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. Their successors shall be appointed for the term of five years from and after the expiration of the terms of their predecessors in office. If a vacancy shall occur otherwise than by expiration of term, it shall be filled by the Town Board by appointment for the unexpired term. The Board of Appeals shall appoint a secretary and shall prescribe rules for the conduct of its affairs.[1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
B.
Powers and duties of the Zoning Board of Appeals. The Board of Appeals shall have all the powers and duties prescribed by Chapter 62, § 267, of the Town Law of the State of New York and by this chapter which are more particularly specified as follows:[2]
(1)
Interpretation and review. The Zoning Board of Appeals shall decide any question involving the interpretation of any provisions of this chapter, including a determination of the exact location of any district boundary if there is uncertainty with respect thereto. The Zoning Board of Appeals shall review and make recommendation to the Town Board wherein there are any proposed amendments or changes to the Zoning Ordinance. (See § 308-5B.) An interpretation or review does not require a public hearing.
(2)
Appeal. The Zoning Board of Appeals shall hear and decide on all appeal applications wherein the applicant disagrees with the Code Enforcement Officer's interpretation of any provision of this chapter in the administration of his duties. A public hearing shall be held. [See § 308-32C(3)].
(3)
Use variances.
(a)
Where there is unnecessary hardship in the way of carrying out the strict letter of this chapter, the Board of Appeals shall have the authority to vary or modify the application of any of the use regulations or provisions of this chapter so that its spirit shall be observed. A use variance shall require a public hearing and shall not be granted by the Board of Appeals unless it finds:
[1]
That, for reasons set forth in the findings of the Board of Appeals, no permitted use of the land in question will yield a reasonable return to the owner; and
[2]
That unique circumstances exist for the land or building in question which are not generally found throughout the district and which deprive the applicant of the reasonable use of such building or land; and
[3]
That the granting of the variance will be in harmony with the general purpose and intent of this chapter, and will not be injurious to the neighborhood or otherwise detrimental to the public welfare; and
[4]
That the hardship claimed is not self-created.
(b)
In granting any use variance, the Board of Appeals shall prescribe any conditions that it deems necessary or desirable.
(4)
Area variances.
(a)
Where there are practical difficulties or special conditions which make regulations governing lot size, yard size, building height and all other regulations not specifically related to use of land or building unreasonable or impossible to comply with, the Board of Appeals shall have the authority to vary or modify these regulations as long as the spirit of the regulation to be altered is observed. An area variance shall require a public hearing and shall not be granted by the Zoning Board of Appeals unless it shall find:
[1]
That the owner of the property is experiencing financial hardship or economic injury because of such regulations;
[2]
That there is no practical way for the applicant to accomplish the intended objective by observing the area regulations specified in this chapter; and
[3]
That the variance requested will not be unduly detrimental to adjoining properties; and
[4]
That the variance requested is the minimum necessary to grant relief; and
[5]
That the problem to be solved is not self-created.
(b)
Proof of the ability to improve access to solar radiation for energy uses may be grounds for granting an area variance. In granting any area variance, the Board of Appeals shall prescribe any conditions that it deems necessary or desirable.
(5)
Temporary permits. To hear and decide upon applications for such permits as may be specified in this chapter.
(6)
Special permits.
(a)
The Zoning Board of Appeals shall review all special permit applications and authorize issuance of any special permit when, in the opinion of the Zoning Board of Appeals, its authorization would be consistent with § 308-46, concerning general and specific requirements.
(b)
The Zoning Board of Appeals shall hold a public hearing in conformance with § 308-32C(3) of this chapter.
(c)
Any land use activity not specifically allowed by inclusion in § 308-42, Schedule I, of this chapter is specifically prohibited except that a land use activity which is, in the opinion of the Zoning Board of Appeals, similar to one listed in Schedule I may be permitted by special permit. (See §§ 308-41 and 308-46.)
(d)
Special permit shall be reviewed by appropriate board as per § 308-32B(9) and (10).
(7)
Flood hazard law. To hear and decide upon applications for zoning and building permits, affected by flood zones and consistent with requirements outlined in Chapter 153, Flood Damage Prevention.
(8)
Environmental review. If, in the judgment of the Zoning Board of Appeals, the granting of a variance or special permit could have a significant environmental impact including considerations such as noise, heat, odor, vibration, surface drainage, traffic, etc., no such permit shall be approved until an environmental assessment and declaration, guided by the provisions of Part 617 of the regulations of the New York State Department of Environmental Conservation and any local law enacted pursuant thereto has been made. (See Environmental Conservation Law, Article 8, SEQR.)
(9)
Referral to County Planning Board. Before final action is taken on any use variance or special permit affecting real property lying within a distance of 500 feet from the boundary of any village or any adjacent town, or from the boundary of any existing or proposed county or state park or other recreation area, or from the right-of-way of any existing or proposed county or state road or highway, or from the existing or proposed right-of-way of any stream or drainage channel owned by the county or for which the county has established channel lines, or from the existing or proposed boundary of any county or state owned land on which a public building or institution is situated, such matter shall be referred to the Wayne County Planning Board for report and recommendation. If the County Planning Board fails to make such report within 30 days after receipt of referred matter, the Board of Appeals, as appropriate, may act without such report. If the County Planning Board disapproves the proposal, or recommends modification thereof, the Board of Appeals may act contrary to such disapproval or recommendation only by a vote of a majority plus one of all the members thereof. The Board of Appeals shall file a report of its action on such application with the County Planning Board within seven days after such action is taken.
(10)
Referral to Town Planning Board.
(a)
Before final action is taken on any use variance or when a site plan review is specified in Schedule I of this chapter, such matter shall be referred to the Town of Marion Planning Board for a review and recommendation. If the Planning Board fails to make a recommendation within 30 days after receipt of referred matter, the Board of Appeals may act without such recommendation. [See § 308-34B(2)].
(b)
The Zoning Board of Appeals may act contrary to the Town Planning Board's recommendation; however, in so doing the Appeals Board shall set forth the reasons for such contrary action.
[2]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
C.
Zoning Board process and procedure.
(1)
Form and content.
(a)
All appeals, area or use variance, request for interpretation, and applications for special permits shall be made to the Zoning Board of Appeals on forms prescribed by the Board and available from the Building and Zoning Department.
(b)
Applications shall include the following:
[1]
Completed application form:
[a]
Referencing the specific provisions of the ordinance and laws involved.
[b]
Exactly setting forth the interpretation claimed or the use sought.
[c]
Specifying the grounds on which a variance is claimed and should be granted.
[2]
Seven copies of all graphic, supportive and related details to enable the Zoning Board of Appeals a full understanding of the appeal sought.
[3]
One copy of a completed environmental assessment short form.
[4]
Fees pursuant of § 308-30, Fees, deposits and securities.
[5]
Any Town Engineer review pertinent to application. [See § 308-26A(2)(b).]
(2)
Review and scheduling.
(a)
Application submittal.
[1]
All applications shall be submitted to the Building and Zoning Department no later than the 10th of the month for review and processing.
[2]
The Code Enforcement Officer shall review all the information submitted and if complete and appropriate shall distribute copies to appropriate boards for their review and comment.
(b)
Scheduling. The Planning/Zoning Board Secretary shall schedule date and time for application reviews and public hearings before the appropriate boards.
[1]
Special permits and use variances shall be scheduled for the following month's regularly scheduled meeting of the Planning Board and Zoning Board of Appeals.
[2]
Area variances, appeals and interpretations may be scheduled for the same month in which the application has been submitted.
(3)
Public hearings (Zoning Board of Appeals).
(a)
The Board of Appeals shall hold a public hearing on all appeals, variances and special permits transmitted to it within 60 days from the filing of an appeals with the Code Enforcement Officer and shall decide each appeal within 62 days after the final hearing. Any party may appear in person or be represented by an agent or attorney at such hearing. The Board of Appeals decision shall be filed in the office of the Town Clerk within five business days after the day such decision is rendered and be a public record. The Board of Appeals may, in conformance with the provisions of this chapter, reverse or affirm, wholly or partly or modify the order, requirement, decision or determination appealed from or may make such order, requirement, decision or determination in accordance with the provisions hereof. (See Town Law Chapter 62, § 267-a.)[3]
[3]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
(b)
The hearing for any application or appeal may be adjourned for a reasonable period for the purpose of causing such further notice as deemed proper to be served upon such other property owners as may be interested in said application or appeal.
(c)
Notice of Board hearing:
[1]
The Board of Appeals shall give public notice of the hearing on any matter referred to it by publication of a notice of such hearing in the official paper at least five days prior to the date thereof.
[2]
The Board of Appeals shall send notice of the hearing on any matter referred to it to the applicant and the Wayne County Planning Board when applicable. [See § 308-32B(9).] The applicant shall notify all property owners within 200 feet of the property to be affected by said appeal at least five days prior to the date of such hearing. The applicant's notifications shall be in writing by certified mail or by personal service. The applicant shall furnish proof of such notification in writing and properly notarized at the time of the hearing.
(d)
Rehearing.
[1]
A request for a rehearing shall be made to the Zoning Board of Appeals in the same manner as the original application. A rehearing shall be scheduled only upon motion initiated by any member of the Board of Appeals and adopted by the unanimous vote of the members present, but not less than a majority of all members.
[2]
Upon motion initiated by any member of the Board of Appeals and adopted by the unanimous vote of the members present, but not less than a majority of all members, the Board of Appeals shall review at a rehearing any new information not previously reviewed which might affect the original order, decision or determination and change of circumstances not available at the previous hearing.
[3]
Notice of such rehearing shall be given in the same manner as the original hearing.
[4]
By a concurring vote of all members present at such rehearing, the Board of Appeals may reverse or modify its original order, decision or determination, but only if it appears that the rights vested prior to such rehearing in persons acting in good faith in reliance on such original order, decision or determination will not be prejudiced thereby.
(4)
Board decisions. Zoning Board decisions shall be rendered within 62 days after the final hearing, and the decision shall be filed in the office of the Town Clerk within five business days after such decision is rendered. Every decision of the Board shall be by resolution or motion, each of which shall contain a full record of the findings of the Board in the particular case. The Board 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 originals of which shall be on file in the office of the Town Clerk. All meetings shall be open to the public.
[Amended 10-12-1993[4]]
[4]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
(5)
Filing. The Building and Zoning Department shall be the office of the Board of Appeals and every rule, regulation, amendment or repeal thereof and every order, requirement, decision or determination of the Board shall be filed in said office as required by Chapter 62, Article 16, § 267, of the Town Law of the State of New York.
(6)
Appeal to Supreme Court. Any person or persons, jointly or severally grieved by any decision of the Board of Appeals or any officer, department, board or bureau of the Town, may apply to the Supreme Court for review by a proceeding under Article 78 of the Civil Practice Law and Rules. Such proceeding shall be instituted within 30 days after the filing of a decision in the office of the Town Clerk.
§ 308-33 Regional Boards of Review; powers of review.
A.
Creation, appointment, and organization. Five regional Boards of Review have been established to serve designated counties within the State of New York. Each Regional Board consists of five members appointed by the Secretary of State, one of whom shall be a registered architect licensed in the State of New York, one a professional engineer licensed in the State of New York, one of whom shall have a background in building code enforcement, one of whom shall have a background in fire prevention, and one shall be a businessman or lawyer. Each member shall be a resident in the region of the board to which he is appointed. Term of appointments and further creation and organization information may be found in 9 NYCRR Part 1205. [1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
B.
Powers and duties.
(1)
The Regional Board shall have power to vary or modify in whole or part any provisions or requirements of the Uniform Code in cases where strict compliance with such provisions or requirements would entail practical difficulties or unnecessary hardships or otherwise be unwarranted; provided, however, that any such variance or modification will not substantially adversely affect provisions for health, safety and security and that equally safe and proper alternatives are provided.
(2)
Whenever it is claimed that the Code Enforcement Officer misconstrued the Uniform Code in approving or disapproving any application or granting or refusing to grant any permit or certificate of occupancy, the person affected may appeal from the decision of the Code Enforcement Officer to the Regional Board of Review in accordance with Part 1205 of the New York Code of Rules and Regulations entitled "Uniform Code: Variance Procedures" as promulgated by the New York Department of State.[2]
[2]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
(3)
When varying or modifying a provision or requirement of the Uniform Code, the Board shall find that, in the particular case before it, strict compliance with the provisions or requirements:
(a)
Would create an undue economic burden;
(b)
Would not achieve its intended objective;
(c)
Would inhibit achievement of some other state or federal policy;
(d)
Would be physically or legally impossible;
(e)
Would be unnecessary in light of alternatives which insure the achievement of the intended objective or which, without a loss in the level of safety, achieve the intended objective more efficiently, effectively or economically; or
(f)
Would entail a change so slight as to produce a negligible additional benefit consonant with the purposes of the code.
(4)
In cases before a Regional Board on appeal, the Board may fashion suitable remedies so as to do justice between the parties, including but not limited to:
(a)
Where an order or determination has been made, sustaining, reversing or modifying, in whole or part, such order or determination; and
(b)
Where an order or determination has not been made within a reasonable time, making any such order or determination and directing that any permits, authorization or other documents be issued.
C.
Process and procedure. Shall follow the forms, content and scheduling, including fees, public hearings, and decisions as prescribed in Title 19 NYCRR Part 1205.
[Amended 6-11-2018 by L.L. No. 1-2018]
§ 308-34 Marion Planning Board.
A.
Creation, appointment, and organization.
(1)
The Planning Board is established by the Marion Town Board and shall consist of five members appointed for terms as follows: 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, one for the term of five years. Upon expiration of the term of each member, his/her reappointment or the appointment of his/her successor shall be for the term of seven years. If a vacancy shall occur, other than the expiration of the term, it shall be filled by the Town Board by appointment for the unexpired term. The Planning Board shall appoint a secretary and shall prescribe rules for the conduct of its affairs.
[Amended 6-11-2018 by L.L. No. 2-2018; 12-14-2020 by L.L. No. 3-2020]
(2)
The Town Board shall designate a member of said Planning Board to act as Chairman thereof, or, on failure to do so, the Planning Board shall elect a Chairman from its own members. No person who is a member of the Town Board shall be eligible for membership of such Planning Board.
B.
Powers and duties.
(1)
Adopt rules and regulations. The Planning Board may adopt rules and regulations in respect to procedure before it and in respect to any subject matter over which it has jurisdiction under Town Law, or any other statute, after a public hearing by the Planning Board and subject to the approval of the Town Board.
(2)
Acting Review Board. The Planning Board shall act as a review board when directed by this chapter (§ 308-42, Schedule I, Authorization Key No. 2) or when requested by other governing boards. Site plans or other matters referred to the Planning Board for comment and recommendation shall be reviewed as to the environmental impact and consistency with the Town's Comprehensive Plan and any existing proposed or planned development within the subject area. If the Planning Board fails to make a recommendation within 30 days, after receipt of referred matter, the referring board may act without such recommendation. [See §§ 308-13A and 308-32B(10).]
(3)
Approve site plans and certain uses when specified in this chapter. (See § 308-42, Schedule I.)
(a)
In addition to approval of site plans, plats showing lots, blocks or sites governed under the Marion Subdivision Regulations (See Chapter 245, Subdivision of Land.), the Town Planning Board shall have authority to review and approve, approve with modifications or disapprove site plans and certain uses as specified in § 308-42, Schedule I, Authorization Key No. 3. In so doing, the Planning Board shall make determination in accordance with specified conditions governing those uses as set forth in this chapter.
(b)
Site plans shall be prepared to specifications set forth in § 308-28.
(c)
Before final action, the Planning Board shall hold a public hearing as per § 308-34C(3).
(4)
Comprehensive Plan.
(a)
The Planning Board may prepare and change a Comprehensive Plan for the development of the entire area of the Town, which Comprehensive Plan shall show desirable streets, bridges and tunnels and the approaches thereto, viaducts, parks, public reservations, roadways in parks, sites for public buildings and structures, zoning districts, pierhead and bulkhead lines, waterways and routes of public utilities and such other features existing and proposed as will provide for the improvement of the Town and its future growth, protection, and development, and will afford adequate facilities for the public housing, transportation, distribution, comfort, convenience, public health, safety and general welfare of its population.
(b)
Any application may be denied, if the Planning Board feels such application is contrary or inconsistent with the duly adopted Comprehensive Plan.
C.
Planning Board process and procedures.
(1)
Form and content.
(a)
All applications for review and approval made to the Planning Board shall be on forms prescribed by the Board and available from the Building and Zoning Department.
(b)
Applications shall include the following:
[1]
Seven copies of all graphic, supportive and related details, to enable the Planning Board a full understanding of the project including a site plan per § 308-28B.
[2]
A copy of a completed environmental assessment short form.
[3]
A copy of the Town Engineer review and comments as per § 308-26A(2)(b).
[4]
Fees pursuant to § 308-30, Fees, deposits and securities.
(2)
Review and scheduling.
(a)
Application submittal.
[1]
All applications shall be submitted to the Building and Zoning Department no later than the 10th of the month for processing.
[2]
The Code Enforcement Officer shall review all information submitted and, if the application is complete, shall distribute copies to all appropriate governing boards.
(b)
Scheduling.
[1]
The Planning/Zoning Board Secretary shall schedule a date and time to meet with the Planning Board.
[2]
Public hearings as required by §§ 308-34C(3) and 308-42, Schedule I, Column 3, shall be scheduled after the Planning Board makes its initial review of the application.
(3)
Public hearing (Planning Board). The Planning Board shall hold a public hearing when directed by this chapter [See §§ 308-34B(3)(c) and 308-42, Schedule I, Column 3.] and shall fix a time for the hearing within 62 days from the day an application is received by the Board. The Planning Board shall give public notice thereof, by publication in the official newspaper of such hearing at least five days prior to the date thereof, and shall decide the same within 62 days after such hearing or after the application has been filed if no hearing has been held; provided, however, the time within which the Planning Board must render its decision may be extended by mutual consent of the applicant and the Planning Board. Nothing herein shall preclude the holding of a public hearing on any such matter on which a public hearing is not so required.[1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
(4)
Board recommendations, decisions and filing.
(a)
Recommendations. When the Planning Board acts as a review board (See § 308-34B.), the Board shall make a written report of its recommendation within 30 days after receipt of referred matter, report shall be available to the applicant and appropriate boards, and shall include the following:
[1]
Environmental impact.
[2]
Relation and impact to proposed development.
[3]
The impact on existing character of the present use.
[4]
Consistency with Comprehensive Plan.
(b)
Decision. When the Planning Board acts as an authorized board per §§ 308-34B(3) and 308-42, Schedule I, Column 3, the Board shall render its decision within 62 days of the final public hearing and shall:[2]
[1]
Render decisions by resolution or motion each of which shall contain a full record of the findings of the Board in a particular case.
[2]
The Board shall keep minutes of its proceedings.
[3]
All meetings shall be open to the public.
[4]
The applicant shall be mailed a copy of the Board decision.
[2]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
(c)
Filing. The Building and Zoning Department shall be the office of the Planning Board. All rules, regulations, decisions or determinations of the Board shall be filed in said office.
(5)
Appeal to Supreme Court. Any person aggrieved by any decision of the Planning Board or any officer, department, board or bureau of the Town may apply to the Supreme Court for review by a proceeding under Article 78 of the Civil Practice Law and Rules. Such proceedings shall be instituted within 30 days after the filing of a decision in the office of the Town Clerk.
§ 308-35 Wayne County Planning Board.
A.
General. It is in the public interest that certain classes of zoning and planning actions by a city, town or village, as proposed by the agencies thereof having jurisdiction, be reviewed by the County Planning Board for the county in which such municipality is located, as an aid in coordinating such zoning actions and planning among municipalities by bringing pertinent inter-community and countywide considerations to the attention of the aforesaid municipal agencies having jurisdiction. Such considerations shall include compatibility of various land uses with one another; traffic-generating characteristics of various land uses in relation to the effect of such traffic on other land uses and the adequacy of existing and proposed thoroughfare facilities; impact of proposed land uses on existing and proposed county or state institutional or other uses; protection of community character as regards predominant land uses, population density, and relation between residential and nonresidential areas; community appearance; drainage; community facilities; official development policies; municipal and county, as may be expressed through Comprehensive Plans, capital programs, or regulatory measures; and such other matters as may relate to the public convenience, to governmental efficiency, and to the achieving and maintaining of a satisfactory community environment.
B.
Powers and duties.
(1)
Review board. Each municipal body which has jurisdiction to adopt or amend zoning regulations, approve site plans, or to issue special permits or grant variances pursuant to such regulations shall, before taking final action on certain of such matter, refer the same to the County Planning Board. The terms "special permit" and "site plan" shall be deemed to include any special permit, use permit, exemption or other special authorization which a Board of Appeals, Planning Board, or legislative body is authorized to issue under the provisions of any zoning ordinance. Referrals shall include:
(a)
Any municipal zoning regulation, or any amendment thereof, which would change the district classification of or the regulations applying to real property lying within a distance of 500 feet from the boundary of any city, village, or town, or from the boundary of any existing or proposed county or state park or other recreation area, or from the right-of-way of any existing or proposed county or state parkway, thruway, expressway, road or highway, or from the existing or proposed right-of-way of any stream or drainage channel owned by the county or for which the county has established channel lines, or from the existing or proposed boundary of any county or state owned land on which a public building or institution is situated; and
(b)
Any special permit, site plan or variance affecting such real property within such distance of 500 feet. The term "proposed" shall be deemed to include only those recreation areas, parkways, thruways, expressways, roads or highways which are shown on a county adopted plan.
(2)
Reports and recommendations. Within 30 days after receipt of a full statement of such referred matter, the County Planning Board shall report its recommendations thereon to the referring municipal agency, accompanied by a full statement of the reasons for such recommendation. If the County Planning Board fails to report within such period of 30 days, the municipal agency having jurisdiction to act may do so without such report. If the Planning Board disapproves the proposal, or recommends modification thereof, the municipal agency having jurisdiction shall not act contrary to such disapproval or recommendation except by a vote of a majority plus one of all the members thereof and after the adoption of a resolution fully setting forth the reasons for such contrary action.
C.
Application. Shall be made on forms prescribed by the Wayne County Planning Board and shall be completed by the Marion Building and Zoning Department.