New Hartford Town City Zoning Code
ARTICLE XIV
Zoning Board of Appeals
§ 118-126 Creation; appointment; organization.
[Amended 11-7-2024 by L.L. No. 6-2024]
A Zoning Board of Appeals is hereby created in accordance with Article 16, § 267, of the Town Law. Said Board shall consist of seven members appointed by the Town Board. Members shall be residents of the Town of New Hartford. The Town Board, by resolution, shall fix the members' terms so that one member's term shall expire at the end of each year for seven calendar years. At the expiration of each original member's appointment, the replacement member shall be appointed for a term of seven years. The Town Board shall annually designate the Chairman of the Board of Appeals, while the Board of Appeals shall annually designate its Secretary and may prescribe reasonable rules in addition to those provided herein for the conduct of its affairs. All members are subject to removal by the Town Board for just cause after public hearing. All Board of Appeals members shall complete a minimum of four hours of Town-Board-approved training per year as required by § 267 of the Town Law. The Town Board shall have the authority to designate two alternate members for said Board to be called upon to attend meetings as may be requested by the Chairperson of said Board. Members and alternate members of the Zoning Board of Appeals shall be paid their attendance fee prorata based upon meetings actually attended, members and alternate members may be terminated by the Town Board in the instance they miss two meetings in any year absent good cause within the sole distraction of the Town Board.
§ 118-127 Powers and duties.
The Board of Appeals shall have all the powers and duties prescribed by law and by this chapter, which are more particularly specified as follows:
Interpretation. To hear and decide on questions where it is alleged that there is an error in any order, requirement, decision or determination made by the Code Enforcement Officer involving the interpretation of any provision of this chapter or on request by an administrative official, board or agency or resident of the Town, to decide any of the following questions:
Determination of the meaning of any portion of the text of this chapter or of any conditions or requirements specified or made under the provisions of this chapter.
Determination of the exact location of any district boundary shown on the Zoning Map.[1]
[1]
Editor's Note: The Zoning Map is included as an attachment to this chapter.
Variances. To authorize, upon appeal from a decision of the Code Enforcement Officer charged with the enforcement of this chapter, variances from the terms of this chapter. Variances may apply to either the area, bulk, height and density requirements (area variance) or the use requirements (use variance) for a structure or parcel. The criteria to be applied by the Zoning Board of Appeals for review of each type of variance are as follows:
Use variances.
No use variance shall be granted by the 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 Board of Appeals that, 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 district or neighborhood;
The requested use variance, if granted, will not alter the essential character of the neighborhood; and
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.
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.
Whether the alleged difficulty was self-created, which 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.
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 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.
§ 118-128 Procedures.
The Zoning Board of Appeals shall act in strict accordance with the procedures specified by § 267 of the Town Law and this chapter.
Meetings. Meetings shall be held at the call of the Chairperson or at such other times as the Board of Appeals may determine. A quorum shall consist of four members, but in order to issue an interpretation, reverse a decision of the Code Enforcement Officer or authorize a variance, an affirmative vote of at least four members shall be required. A favorable vote of a majority plus one shall also be required if the action taken is contrary to an advisory recommendation received from the Oneida County Department of Planning, under the provisions of § 239-m of the General Municipal Law. The Board shall keep minutes of its proceedings showing the vote of each member upon each question and shall keep records of its examinations and other official actions. All meetings of the Board of Appeals shall be open to the public.
Application and fee. All appeals and requests made to the Board shall be in writing, on forms prescribed by the Board. All appeals shall be filed with the Board within 60 days of the action appealed from and shall be accompanied by the applicable fee in accordance with the fee schedule established and annually reviewed by the Town Board. Every appeal or request shall refer to the specific provision of this chapter that is involved and shall precisely set forth either the interpretation that is claimed or the details of the variance that is applied for and the grounds on which it is claimed that such variance should be granted.
Public notice and hearing. The Board shall fix a reasonable time and place for a public hearing on any such appeal or request, of which hearing date the appellant shall be given notice and at which hearing he/she shall appear in person or by agent. Additionally, notice shall be provided as follows:
By publishing at least five calendar days prior to the date thereof a legal notice in the official newspaper of the Town.
By requiring the applicant to provide notice of the public hearing and data regarding the substance of the appeal to the owners of all property abutting that held by the applicant and all other owners within 500 feet, or such additional distances that the Board of Appeals may deem advisable, of the land involved in such appeal. Notice shall be provided by certified mail at least five calendar days prior to the hearing, with compliance with this notification procedure certified to by a United States Postal Service receipt. The names of owners notified shall be taken as such appear on the last completed tax roll of the Town.
Required referral. A full statement of any appeal that meets the referral requirements of § 239-m of the General Municipal Law shall also be referred not less than five days prior to the public hearing to the Oneida County Department of Planning. No action shall be taken by the Board of Appeals on such appeal until an advisory recommendation has been received from said Board or 30 calendar days have elapsed since the Board received such full statement.
Decisions. Every decision of the Board of Appeals on an appeal or request shall be made within 62 days of the close of the hearing by the Board, shall be recorded in accordance with standard forms adopted by the Board, shall fully set forth the circumstances of the case and shall contain a full record of the findings on which the decision is based. Every decision shall be by resolution of the Board, with each such decision being filed in the office of the Town Clerk within five business days thereof. The Board shall also notify the Code Enforcement Officer and the Secretary of the Planning Board of its decision in each case. If applicable, a report on the action taken shall also be filed within 30 calendar days of said action with the Oneida County Department of Planning.
Attachment of conditions. In all cases where the Board of Appeals grants a variance from the strict application of the requirements of this chapter, it shall be the duty of the Board of Appeals to attach such conditions and safeguards as may be in accordance with the spirit and intent of this chapter.
Effect of appeal. Unless the Code Enforcement Officer determines there exists an imminent peril to either life or property, an appeal stays all proceedings in furtherance by either the Town or appellant related to the action which is the subject of the appeal.
Expiration of approval. Unless construction or use is commenced and diligently pursued within one calendar year from the date of the granting of a variance, such variance shall become null and void without further hearing and notification by the Board of Appeals.
Strict compliance. All the provisions of this chapter relating to actions of the Board of Appeals shall be strictly adhered to. The Board of Appeals, as a body of limited jurisdiction, shall act in full conformity with all provisions of law and of this chapter and in strict compliance with all limitations contained therein; provided, however, that if the procedural requirements set forth in this chapter have been substantially observed, no applicant or appellant shall be deprived of the right of application or appeal.
§ 118-129 Compliance with State Environmental Quality Review Act.
The Zoning Board of Appeals shall comply with the provisions of the State Environmental Quality Review Act (SEQRA).