Montour Town City Zoning Code
ARTICLE IX
Zoning Board of Appeals
§ 175-49 Establishment and membership.
A.
There is hereby established a Zoning Board of Appeals ("Zoning Board") having the powers authorized under the New York State Town Law. Said Zoning Board shall consist of five members of staggered terms, including a Chairperson, appointed by the Town Board. Appointments shall be in accordance with the New York State Town Law, and an appointment to a vacancy occurring prior to the expiration of a term shall be for the remainder of the unexpired term. In the absence of a Town Board appointment of a Chairperson, the Zoning Board may designate a member to serve as Acting Chairperson. The Town Board may also provide for compensation to be paid to experts, clerks and a secretary and provide for such other expenses as may be necessary and proper.
[Amended 5-14-2013 by L.L. No. 1-2013[1]]
[1]
Editor's Note: This local law also repealed original § 100-67B, regarding Zoning Board and Planning Board joint meetings, which immediately followed this subsection.
B.
Members of the Zoning Board shall complete at least four hours of training per calendar year at training sessions approved by the Town Board and satisfying state-mandated training requirements. Certificates evidencing completion of the required four hours of training shall be filed by all Zoning Board members with the Town Clerk before December 31 of each year.
[Amended 5-14-2013 by L.L. No. 1-2013]
C.
The Town Board deems it essential that Zoning Board members are available and present at all scheduled Zoning Board meetings. Failure of any Zoning Board member to be present for at least 75% of the Zoning Board meetings held in a calendar year shall be grounds for removal for cause of the Zoning Board member following a public hearing as required under of the New York State Town Law. As provided therein, the Town Supervisor following removal of any Zoning Board member shall appoint a new member for the unexpired terms of the member so removed.
§ 175-50 Powers and duties.
A.
The Zoning Board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, interpretation or determination as in its opinion ought to have been made in the matter by the administrative official(s) charged with the enforcement of this chapter, and, to that end, shall have all powers of the administrative official(s) from whose order, requirement, decision, interpretation or determination the appeal is taken.
B.
Use variances.
(1)
The Zoning Board, on appeal from the decision or determination of the administrative officials charged with the enforcement of this chapter, shall have the power to grant use variances, as defined herein.
(2)
No such use variance shall be granted by a Zoning Board without a showing by the applicant that applicable regulations and restrictions of this chapter have caused unnecessary hardship. In order to prove such unnecessary hardship the applicant shall demonstrate to the Zoning Board that:
(a)
He or she cannot realize a reasonable return, provided 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; and
(d)
The alleged hardship has not been self-created.
(3)
The Zoning Board, 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.
C.
Area variances.
(1)
The Zoning Board shall have the power, upon an appeal from a decision or determination of the administrative officials charged with the enforcement of this chapter, to grant area variances as defined herein.
(2)
In making its determination, the Zoning Board 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 Zoning 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; and
(e)
Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the Zoning Board, but shall not necessarily preclude the granting of the area variance.
(3)
The Zoning Board, 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.
D.
The Zoning Board 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 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 such variance may have on the neighborhood or community.
§ 175-51 Procedures.
A.
All meetings of the Zoning Board 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.
B.
Meeting of the Zoning Board shall be open to the public to the extent provided in Article 7 of the Public Officers Law. 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.
C.
Every rule, regulation, every amendment or repeal thereof, and every order, requirement, decision or determination of the Zoning Board shall be filed in the office of the Town Clerk within five business days and shall be a public record. Every decision of the Zoning Board shall be made by resolution and include findings establishing the basis of the decision.
D.
The Zoning Board shall have the authority to call upon any department, agency or employee of the Town for such assistance as shall be deemed necessary and as shall be authorized by the Town Board. It shall also have authority to refer matters to the Town Planning Board for review and recommendation prior to making a decision.
E.
Except as otherwise provided herein, the jurisdiction of the Zoning Board shall be appellate only and shall be limited to hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation, or determination made by the administrative officials charged with the enforcement of this chapter. The concurring votes of five members of the Zoning Board shall be necessary to reverse any order, requirement, decision or determination of any such 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.
F.
Such appeal shall be taken within 60 days after the filing of any order, requirement, decision, interpretation or determination of the administrative officials charged with the enforcement of this chapter by filing with such administrative official and with the Zoning Board a notice of appeal, specifying the grounds thereof and the relief sought. The administrative official(s) from whom the appeal is taken shall forthwith transmit to the Zoning Board all the papers constituting the record upon which the action appealed from was taken.
G.
An appeal shall stay all proceedings in furtherance of the action appealed from, unless the administrative official charged with the enforcement of such ordinance or local law, from whom the appeal is taken, certifies to the Zoning Board, after the notice of appeal shall have been filed with the administrative office, 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 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.
H.
The Zoning Board shall fix a reasonable time, no more than 62 days following application, 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 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. The hearing shall be conducted in accordance with rules of the Zoning Board. Such rules shall permit cross-examination by parties, provide for evidentiary procedures and allow for rehearings on the unanimous vote of the members present.
I.
The Zoning Board shall decide upon the appeal within 62 days after the conduct of said hearing. The time within which the Zoning Board must render its decision may, however, be extended by mutual consent of the applicant and the Board.
J.
The decision of the Zoning Board 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.
K.
At least five days before such hearing, the Zoning Board 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 Schuyler County Planning Commission, as required by §§ 239-m and 239-nn of the General Municipal Law. No Zoning Board decision shall be made except in conformance with such 239-m and 239-nn procedures, including requirements for an affirmative vote of no less than five members of the Board if it shall determine to approve an application which the county has recommended it disapprove or modify.