Minden Town City Zoning Code
ARTICLE XII
Zoning Board of Appeals
§ 90-62 Creation, appointment and organization.
Membership.
A Zoning Board of Appeals is hereby established in accordance with Article 16, § 267 of the New York State (NYS) Town Law. It shall consist of five members, each to serve for a term of five years. The term of office of the members of the Board of Appeals and the manner of their appointment shall be in accordance with the provisions of Article 16, § 267 of the NYS Town Law. A member of the Board of Appeals shall not at the same time be a member of the Town Board. Vacancies occurring on the Board shall be filled for such unexpired period only.
The Town Board shall designate its Chairperson and shall provide for such expenses as may be necessary and proper. In the absence of a Chairperson, the Zoning Board of Appeals members may designate a member to serve as acting Chairperson.
The Town Board shall have the power to remove any member of the Zoning Board of Appeals for cause and after a legally noticed public hearing.
Powers.
The Zoning Board of Appeals shall have the duties, rights, powers and functions conferred upon it by § 267 of Article 16 of the NYS Town Law, and any other provisions of law applicable to appeals to review any order, requirement, decision, interpretation, or determination made by the administrative official charged with the enforcement of this chapter.
Hearing appeals. The jurisdiction of the Board of Appeals shall be appellate and shall include hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation, or determination made by the Code Enforcement Officer. Such appeal may be taken by any person aggrieved, or by an officer, department, board or bureau of the Town.
§ 90-63 Conduct of business, procedures, actions.
Conduct of business.
The Zoning Board of Appeals may employ such clerical or other staff as may be necessary, provided that it shall not incur expenses beyond the amount of appropriations made available by the Town Board for such purposes.
Meetings, minutes, records. Meetings of the Zoning Board of Appeals shall be open to the public to the extent provided in Article 7 of the New York State Public Officer's Law (the Open Meetings Law). The 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.
Filing requirements. Every rule, regulation, every amendment or repeal thereof, and every order, requirement, decision or determination of the Board of Appeals shall be filed in the office of the Town Clerk within five business days and shall be a public record.
Assistance to Zoning Board of Appeals. The Board shall have the authority to call upon any professional to assist in its review of the application which shall provide the Board with necessary technical information required for the Board to carry out its duties. All expenses shall be incurred by the applicant.
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 the New York State Town Law and 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.
Time of appeal. An appeal shall be taken within 60 days after the filing of any order, requirement, decision, interpretation or determination of the Code Enforcement Officer, by filing with such officer and with the Board of Appeals, a notice of appeal, specifying the grounds thereof and the relief sought on forms prescribed by the Zoning Board of Appeals. All applications for variances shall be in writing on forms established by the Zoning Board of Appeals and available from the Code Enforcement Officer. Such application shall refer to the specific provision of this chapter involved and shall specify the grounds for the variance requested, the interpretation claimed, or for the reversal of an order, requirement, decision or determination of an administrative official. It shall establish the details of why the variance should be granted. The Code Enforcement Officer shall transmit to the Zoning Board of Appeals all the papers constituting the record upon which the action appealed from was taken.
If an agricultural data statement has been submitted, the Clerk of the Zoning Board of Appeals shall, upon receipt of the variance application, mail written notice of the application to the owners of land as identified by the appellant in the agricultural data statement. Such notice shall include a description of the proposed variance and its location. The cost of mailing the notice shall be borne by the appellant.
Stay upon appeal. An appeal shall stay all proceedings in furtherance of the action appealed from, unless the Code Enforcement Officer certifies to the Board of Appeals, after the notice of appeal shall have been filed with the 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 administrative official from whom the appeal is taken and on due cause shown.
Hearing on appeal. The Board of Appeals shall schedule a public hearing within 62 days upon receipt of a completed application. The Zoning Board of Appeals shall 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 appeal, or a reasonable fee relating thereto, shall be borne by the appealing party and shall be paid to the board prior to the hearing of such appeal. The Zoning Board of Appeals shall notify the applicant of the date of the public hearing at least 15 days in advance of such hearing. Upon the hearing, any party may appear in person, or by agent or attorney. In addition to the public notice of a hearing, notice shall be given in writing to all property owners of the land included in such proposed change, and the land immediately adjacent extending 500 feet therefrom, and the land directly opposite thereto extending 500 feet from the street or highway frontage of such opposite land, as said property owners and addresses appear on the latest completed assessment roll of the Town.
The Board of Appeals may 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 in the premises and to that end shall have all the powers of the officer from whom the appeal is taken.
Notice to County Planning Board. At least five days before such hearing, the Zoning Board of Appeals shall mail notices thereof to the parties to the county planning board as required by § 239-m of the New York State (NYS) General Municipal Law. This notice shall be accompanied by a full statement of the proposed action, as defined in Subdivision 1 of § 239-m of the NYS General Municipal Law. No action shall be taken on variances referred to the County Planning Board until its recommendation has been received, or 30 days have elapsed after its receipt of the full statement of the proposed variance, unless the county and Town agree to an extension beyond the 30-day requirement for the County Planning Board's review. A majority-plus-one vote shall be required to approve any variance which receives a recommendation of disapproval from the County Planning Board, along with a resolution setting forth the reasons for such contrary action.
Time of decision on appeal. The Board of Appeals shall decide upon the appeal within 62 days after the closing of the public 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 Zoning Board of Appeals.
Voting requirements and decisions.
Decision of the Board. Every decision of the Zoning Board of Appeals shall be by resolution, each of which contains a full record of the findings of the Zoning Board of Appeals in the particular case. A decision shall be made within 62 days of the close of the public hearing. Every motion or resolution of a Board of Appeals shall require for its adoption the affirmative vote of a majority of all the members of the Board of Appeals as fully constituted regardless of vacancies or absences. Where an action is the subject of a referral to the county planning agency the voting provisions of § 239-m of the NYS General Municipal Law shall apply.
Default denial of appeal. In exercising its appellate jurisdiction only, if an affirmative vote of a majority of all members of the Board is not attained on a motion or resolution to grant a variance or reverse any order, requirement, decision or determination of the Code Enforcement Officer within the time allowed, the appeal is denied. The Board may amend the failed motion or resolution and vote on the amended motion or resolution within the time allowed without being subject to the rehearing process as set forth this section.
Each resolution shall be filed in the office of the Town Clerk by case number under one or another of the following headings: interpretations, use variances and area variances; together with all documents pertaining thereto. The Zoning Board of Appeals shall notify the Town Board and the Planning Board of each variance granted under the provisions of this chapter.
Filing of decision and notice. The decision of the 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.
Compliance with State Environmental Quality Review Act (SEQRA). The Board of Appeals shall comply with the provisions of SEQRA under Article 8 of the New York State Environmental Conservation Law and its implementing regulations as codified in Title 6, Part 617 of the New York Code of Rules and Regulations.
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.
Permitted action by Board of Appeals.
Appeals, orders, requirements, decisions, interpretations determinations. The 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 the chapter 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.
Use variances.
The Board of Appeals, on appeal from the decision or determination of the administrative official charged with the enforcement of the chapter, shall have the power to grant use variances, as defined in this chapter.
No use variance shall be granted by a Board of Appeals without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship. The applicant shall have the burden of proving unnecessary hardship to the satisfaction of the Zoning Board of Appeals. The Zoning Board of Appeals shall not determine that an applicant has successfully proved unnecessary hardship unless it determines that the applicant has demonstrated that, for each and every permitted use under the zoning regulations for the particular district where the property is located, the following four criteria have been met for each such permitted use:
That the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;
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;
That the requested use variance, if granted, will not alter the essential character of the neighborhood; and
That the alleged hardship has not been self-created.
The Board of Appeals, in the granting of use variances, shall grant the minimum variance that it shall deem necessary and adequate to address the unnecessary hardship proven by the applicant, and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.
Area variances.
The Zoning Board of Appeals shall have the power, upon an appeal from a decision or determination of the administrative official charged with the enforcement of this chapter, to grant area variances as defined in 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 by such grant. In making such 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 district; and
Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the Board of Appeals, but shall not necessarily preclude the granting of the area variance.
The Board of Appeals, in the granting of area variances, shall grant the minimum variance that it shall deem necessary and adequate and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.
Imposition of conditions. The 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. 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.
Interpretation. Upon appeal from a decision by an administrative official, to decide any question involving the interpretation of any provision of this chapter, including determination of the exact location of any district boundary if there is uncertainty with respect thereto.
Court review of Board decisions.
Any person or persons jointly or severally aggrieved by any decision of the Zoning Board of Appeals may apply to the Supreme Court for review by a proceeding under Article 78 of the New York State Civil Practice Law and Rules and § 267-c of the New York State Town Law.
Expiration of appeal decision. 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 permit within 12 months of the date of such decision.
Grant of variance. The grant of a variance shall serve as authorization for the Code Enforcement Officer to issue a project permit, provided that the project complies with all applicable provisions of this chapter and other applicable regulations.