Newfane Town City Zoning Code
ARTICLE XIII
Board of Appeals
§ 270-13.1 Organization and general procedure.
A.
There shall be a Board of Appeals. Said Board shall consist of seven members. The method of appointment, terms of office, and tenure of its members shall be as prescribed by law.
B.
The Board shall have all the powers and duties prescribed by law and by this chapter.
C.
The Board shall appoint a Secretary and shall prescribe rules for the conduct of its affairs.
D.
All meeting of the Board of Appeals shall be open to the public. A quorum shall consist of four members.
E.
Every decision by the Board shall be by resolution, and shall contain a full record of the findings of the Board in the particular case.
§ 270-13.2 Application and public hearing procedure.
A.
Applications for any action by the Board of Appeals shall be submitted in the form required by the Board and filed in the municipal office.
B.
The Board shall fix a time and place for a public hearing thereon, and shall provide for the giving of notice at least five days prior to the date thereof, as follows:
[Amended 6-28-2023 by L.L. No. 4-2023]
(1)
By publishing a notice in the official newspaper and sending a notice by regular first-class mail to the owners of properties within 300 feet of the property affected by the proposed application, including properties on the opposite side of the street or highway.
(2)
(Reserved)[1]
[1]
Editor's Note: Original Subsection 13-2-2.2, requiring an applicant to erect a sign regarding the appeal, was repealed 9-28-2016 by L.L. No. 1-2016.
(3)
If the land involved in an application is within 500 feet of the boundary of any other municipality, notice of the public hearing shall also be mailed to the municipal clerk of such other municipality.
C.
Notice of the public hearing and a description of the applicant's proposal shall be mailed to the Niagara County Economic Development and Planning Commission, in any case where the land involved in an application is within 500 feet of:
(1)
The boundary of any other municipality.
(2)
Any state or county park or other recreation area.
(3)
The right-of-way of any federal, state, or county parkway, thruway, expressway, or other controlled-access highway.
(4)
The right-of-way of any stream or drainage channel owned by the county or for which the county has established channel lines.
(5)
The boundary of any state- or county-owned land on which a public building or institution is situated.
D.
No action shall be taken on applications referred to the Niagara County Economic Development and Planning Commission until the Commission's recommendation has been received, or 30 days have elapsed after the Commission received the full statement on the applicant's proposal.
E.
A record shall be established of all variances granted pursuant to action of the Board of Appeals under this chapter. Each case shall be identified by a sequential numbering system and alphabetically by applicant's name. Said files shall be available for public inspection.
F.
The Board shall keep minutes of its proceeding showing the vote of each member upon every question, or if absent or failing to vote, indicating such fact. The Board shall keep records of its examinations and official actions, all of which shall be a public record.
G.
Building permits authorized by Board of Appeals action on variance cases shall be obtained within 90 days and shall automatically expire if construction under the permit is not started within 90 days of issuance and completed within one year. Extensions of these periods may be granted by the Board of Appeals where good cause is shown.
H.
The fee for variance applications to the Board of Appeals shall be as established by resolution of the Town of Newfane Town Board and on file in the Building Office.
[Amended 5-26-1999]
§ 270-13.3 Appeals on interpretation of Zoning Ordinance and Map.
The Board of Appeals shall, upon appeal, hear and decide:
A.
Any matter where the applicant alleges that the Building Inspector was in error in refusing to issue a building permit or certificate of occupancy, as a result of misinterpreting the meaning, intent or application of any section or part of this chapter.
B.
Any matter where the applicant alleges that the Building Inspector was in error in his determination as to the exact location of a district boundary line on the Zoning Map that forms a part of this chapter.
C.
Any matter which the Building Inspector appeals on grounds of doubt as to the meaning or intent of any provision of this chapter or as to the location of a district boundary line on the Zoning Map.
§ 270-13.4 Variances.
A.
The Board of Appeals shall have the power in passing on appeals where, as a result of exceptional physical conditions connected with a particular site, there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this chapter that would deprive the owner of the reasonable use of the land or building involved, to vary or modify the application of the regulations or provisions of this chapter.
B.
Guiding principles.
(1)
Every decision by the Board of Appeals granting a variance shall clearly set forth the nature and extent of such variance.
(2)
Every variance granted by the Board of Appeals may be made subject to such conditions and safeguards as the Board shall deem to be applicable to the particular case. Violations of such conditions or safeguards that are a part of the Board's decision shall be deemed a violation of this chapter punishable under the provisions of § 270-14.10.
(3)
Any variance granted by the Board of Appeals pursuant to the provisions of this section shall be construed to be a nonconforming use.
C.
General studies. For every such variance in the strict application of any provision of this chapter, the Board of Appeals shall determine that:
(1)
Strict application of this chapter would cause practical difficulties or unnecessary hardships, which, under the circumstances, are so severe as to deprive the applicant of the reasonable use of such land or buildings approaching confiscation thereof.
[Amended 5-26-1999]
(2)
Such practical difficulties or unnecessary hardships are unique and are not shared by all properties in the vicinity.
(3)
Such practical difficulties or unnecessary hardships are not self-imposed.
(4)
Such variance is the minimum variance that will relieve such practical difficulties or unnecessary hardships.
(5)
Such variance is in spirit of the general purposes and intent of this chapter as stated in Article I.
(6)
Such variance is so designed as to provide reasonable consideration to, among other things, the character of the neighborhood or district, the conservation of property values in the vicinity, and the guidance of building development in accordance with the Comprehensive Plan.
(7)
Such variance does not involve substantial detriment to the public welfare, nor substantially impair the intent and purpose of the zone plan and of this chapter.
D.
Specific types of variances. In the instances of the following types of variances, the Board of Appeals is hereby specifically empowered to grant the variance pursuant to the guiding principles and the general standards stated in Subsections B and C and to the following provisions:
(1)
With respect to lots lying across district boundary lines: to grant a permit, in appropriate cases, where the lot of the appellant, as such lot existed on the effective date of this chapter, lies across the boundary of two districts, for the extension into the more restrictive district of a lawful conforming use permitted in the less restrictive district, but for a distance not exceeding 50 feet measured at right angles to such district boundary line.
(2)
With respect to nonconforming uses, buildings and lots:
(a)
To grant a permit for the enlargement or extension of a nonconforming use or building on the lot occupied by such use or building on the effective date of this chapter, provided that:
[1]
Such enlargement or extension was arranged, intended or designed for such nonconforming use or building on the effective date of this chapter.
[2]
Such enlargement or extension shall not exceed in all 50% of the replacement cost of the existing building on the effective date of this chapter, exclusive of foundations.
[3]
All parking and truck loading requirements of Article X are complied with.
(b)
To grant a permit for the reconstruction, structural alteration, restoration or repair of a building or structure used for a nonconforming use, to an extent exceeding in aggregate 50% of the replacement cost of such building or structure, exclusive of foundations.
(c)
To grant a certificate of occupancy for a change in a nonconforming use, provided that:
[1]
The Board of Appeals shall have made a determination that such change will be beneficial to the general neighborhood.
[2]
Such change be made subject to such reasonable conditions and safeguards as the Board of Appeals may stipulate.
(3)
With respect yard requirements: to grant a variance modifying the yard requirements of a nonconforming lot which qualifies under the terms of § 270-12.3D as to ownership, but where compliance with the dimensional provisions of this chapter is infeasible.
(4)
With respect to fences: to grant a permit, in appropriate cases, for a higher fence or wall than the maximum heights stipulated in § 270-9.9.
(5)
With respect to accessory parking and truck loading spaces:
(a)
To waive the requirements of §§ 270-10.2, 270-10.3 and 270-10.4 for off-street parking and truck loading spaces, in whole or in part, in a case where the municipality owns or operates a public parking and/or truck loading area within 500 feet of the lot, and where the Board of Appeals determines that there is no need for additional facilities.
(b)
To waive the requirements of §§ 270-10.2, 270-10.3 and 270-10.4 for off-street parking and/or loading spaces, in whole or in part, after making a finding that the normal application of such requirements is infeasible because:
[1]
The lot has too restricted an area, unusual dimensions, shape or topographic character.
[2]
No other suitable and adequate lot can reasonably be put to such use within 500 feet of the property to which said parking and/or truck loading spaces are accessory.
(c)
To permit a reduction in the number of off-street parking spaces and/or truck loading spaces originally required and installed for a particular use pursuant to §§ 270-10.2, 270-10.3 and 270-10.4 and in cases where the Board of Appeals determines that, by reason of diminution in number of dwelling units or residents, or in floor area, seating capacity or area, number of employees, or change in other factors determining the demand for such spaces, the proposed reduction in available space will be consistent with the requirements of §§ 270-10.2, 270-10.3 and 270-10.4 and further provided that the area so withdrawn from these uses remains in reserve for potential future increases in need.
(6)
With respect to temporary building permits:
(a)
To grant a temporary building permit for a period not to exceed one year for a nonconforming building, structure or use incidental to a building or other construction project, including such uses as the storage of building supplies and machinery, a real estate office or model houses located on or near a tract of land where individual properties are being offered for sale, provided that:
[1]
Such temporary permit shall be issued only upon written agreement by the owner or his agent to remove such building, structure or use to convert it to a conforming use upon the expiration of the permit.
[2]
Such permit shall be subject to such reasonable conditions as the Board of Appeals shall determine to be necessary to protect the public health, safety, morals or general welfare.
(b)
Such permit may be renewed annually, at the direction of the Board of Appeals, for not more than two additional years.