Ogdensburg City Zoning Code
ARTICLE XVII
Administration and Enforcement
§ 221-81 Code Enforcement Officer and Zoning Administration Officer.
[Amended 10-22-2007 by Ord. No. 10-2007]
The Code Enforcement Officer shall have the power and duty to enforce the provisions of this chapter. The Zoning Administration Officer shall have the power and duty to administer the provisions of this chapter.
A.
Application. The Code Enforcement Officer shall review all applications and, if the proposal fully complies with all applicable requirements of this chapter and Chapter 97,[1] and if no site plan review is required, a permit shall be issued. If the applicant's plans do not meet the requirements of this chapter, the application must be denied. The Code Enforcement Officer must enforce the strict letter of the law, and is not authorized to use discretionary judgment. Inspections shall be made as are necessary to ensure compliance with this chapter.
B.
Referral to City Planning Board. Any application for a change of zoning district or use that requires site plan review shall be forwarded by the Code Enforcement Officer to the Director of Planning and Development for review by the Planning Board, along with all supporting documentation.
C.
Referral to the Zoning Board of Appeals. An applicant, after having been denied a building permit, or an aggrieved party in cases of a question of interpretation, may appeal the Code Enforcement Officer's decision or determination to the Zoning Board of Appeals (ZBA) for a variance or an interpretation. Should an appeal be requested, the Code Enforcement Officer shall notify the Director of Planning and Development of the request and forward the completed variance form along with all necessary supporting information to the ZBA.
D.
Duties of the Code Enforcement Officer. In addition to general enforcement of this chapter, the duties of the Code Enforcement Officer shall include, but are not limited to:
(1)
Review of applications and issuance of permits.
(2)
On-site inspection of construction and development to ensure compliance with permits and approved site plans.
(3)
Complaint review and follow-up.
(4)
Maintenance of all zoning records and permits open to the public.
(5)
Provide assistance to the Director of Planning and Development, the Planning Board or Zoning Board of Appeals, when requested, to assist each in fulfilling their responsibilities, duties and projects.
(6)
Prepare and present an annual written report to the City Council and the City Planning Board every January or at the request of the Planning Board describing and enumerating actions taken and permits issued over the previous year. Such report shall separately list the number of permits issued for newly constructed residences, conversions, commercial uses and industrial uses.
(7)
At the request of the Director of Planning and Development, attend meetings of the Planning Board and the Zoning Board of Appeals.
E.
Duties of the Zoning Administrative Officer. In addition to general administration of this chapter, the duties of the Zoning Administrative Officer shall include, but are not limited to:
(1)
Attend all meetings of the Planning Board and Zoning Board of Appeals, except where the Chairperson decides the Zoning Administrative Officer's attendance is not needed.
§ 221-82 Planning Board.
A.
Authority. As authorized by § 27 of the General City Law, there shall be a Planning Board consisting of five members, holding staggered three-year terms, appointed by the and City Council. Additionally, pursuant to § 27(16) of the General City Law, one alternate member may be appointed by the Mayor and City Council to substitute for a regular member of the Planning Board in the event that a regular member is unable to participate in matters before the Planning Board because of a conflict of interest, illness or other absence.
[Amended 5-27-2008 by L.L. No. 5-2008; 3-27-2017 by Ord. No. 5-2017]
B.
Members.
[Amended 5-27-2008 by L.L. No. 5-2008]]
(1)
Appointment. Planning Board and alternate members shall be appointed by the Mayor and City Council, who shall have authority to remove any member for cause after a public hearing.
[Amended 11-10-2014 by Ord. No. 16-2014]
(2)
Removal. Members may be removed by the Mayor and City Council for cause and after a public hearing has been held. Cause for removal may include, but shall not be limited to, unexcused absences from two consecutive regularly scheduled meetings, failure to fulfill general attendance requirements or failure to complete prescribed training. The Director of Planning and Development shall notify the City Manager in writing on or about December 1 in any year, or at any other time if warranted, of any member who fails to comply with the minimum requirements for meeting attendance and/or training in any calendar year. In the event a member of the Planning Board has failed to complete the minimum attendance and/or training requirements set forth in this chapter, then the Mayor and City Council may remove such member for cause as herein provided:
[Amended 11-10-2014 by Ord. No. 16-2014]
(a)
Notice. Such members shall be mailed a written notice specifying the nature of the failure of such member to meet the minimum requirements regarding training and attendance.
(b)
Public hearing. Such notice shall specify a date, not less than 10 nor more than 30 days from the date of mailing such notice, when the Mayor and City Council shall convene and hold a public hearing on whether or not such member should be removed from service on such Board. Such notice shall also specify the time and place of such hearing.
[Amended 11-10-2014 by Ord. No. 16-2014]
(c)
Public notice. Public notice of such hearing shall be published in a paper of general circulation within the town at least 10 days prior to the date of the public hearing.
(d)
Conduct of hearing. The public hearing on the charges shall be conducted before the Mayor and City Council during a City Council meeting. The member shall be given an opportunity to present evidence and to call witnesses to refute the charges. A record of such hearing shall be made. The decision of the Mayor and City Council shall be in writing and shall set forth specific findings with respect to each charge against such member. Said decision and findings shall be filed in the office of the City Clerk and mailed by certified mail, return receipt, to the member within five business days of such filing.
[Amended 11-10-2014 by Ord. No. 16-2014]
(e)
Action by the Mayor and City Council. Following the hearing and upon a finding that such member has not met the minimum attendance and/or training established by this chapter, the Mayor and City Council may:
[Amended 11-10-2014 by Ord. No. 16-2014]
[1]
Remove such member from the Planning Board; or
[2]
Issue a written reprimand to such member without removing such member from such Board; or
[3]
Take no action if the Mayor and City Council shall find the reasons for failing to meet the minimum meeting attendance and/or training requirements are excusable because of illness, injury or other good and sufficient cause.
[Amended 11-10-2014 by Ord. No. 16-2014]
(f)
Nothing contained herein shall be deemed to limit or restrict the Mayor and City Council's authority to remove a member from the Planning Board for cause for reasons other than as enumerated herein. The procedural rules established under this section shall govern any hearing to remove a member for such cause.
[Amended 11-10-2014 by Ord. No. 16-2014]
(g)
In the event of the removal of a member for cause, such act shall not nullify any action or vote taken by said member as a member of the Planning Board.
(3)
Eligibility.
(a)
No member of the Zoning Board of Appeals shall be eligible for membership on the Planning Board.
(b)
No elected official shall be eligible for membership on the Planning Board.
(c)
No member of the Planning Board shall hold any paid position with the City.
(d)
Full-time residency in the City of Ogdensburg is required.
(e)
No person shall be disqualified from serving as a member of the Planning Board by reason of serving as a member or employee of the St. Lawrence County Planning Board or Department.
(f)
Any person who shall fail to be in compliance with the training and/or attendance requirements shall be ineligible for reappointment to this Board.
(4)
Vacancy. If a vacancy shall occur other than by expiration of a term, it shall be filled by appointment for the unexpired term by the Mayor and City Council.
[Amended 11-10-2014 by Ord. No. 16-2014]
(5)
Attendance.
(a)
All members of the Planning Board shall be required to attend a minimum of 75% of the Board meetings scheduled within a calendar year. Additionally, no member shall be absent, without excuse, for more than two consecutive regularly scheduled meetings.
(b)
Noncompliance with minimum requirements relating to attendance at meetings shall be deemed a proper cause for removal from office.
(6)
Training.
(a)
All members of the Planning Board shall complete a minimum of five hours of relevant training within one year from the date of their initial appointment to the Planning Board. Thereafter, each member shall complete four hours of relevant training in each subsequent year of membership. Training sessions which relate to the duties of members of the Planning Board may include, but shall not be limited to, programs offered by the New York State Department of State, New York State Planning Federation, New York State Department of Environmental Conservation, St. Lawrence County Planning Department, New York State Conference of Mayors, and other such entities, as well as in-house updates, seminars, or other web-based training as may be approved and recommended by the Director of Planning and Development, the City Manager, and/or prescribed by the City Council by resolution or as required under § 27(7-a) of the General City Law.
(b)
The costs of such seminars, workshops or continuing education courses so designated shall be a City charge. Members shall also be reimbursed for travel and meal expenses according to the administrative regulations. In order to be eligible for cost assumption and expense reimbursement, such training session shall be approved in advance by the Director of Planning and Development and the City Manager.
(c)
Noncompliance with minimum requirements relating to training shall be deemed a proper cause for removal from office.
C.
Officers, expenses and rules.
(1)
Officers. The Mayor and City Council shall designate a member of the Planning Board to act as Chairperson or, on failure to do so, the Planning Board shall elect a Chairperson from its own members. In addition, the Planning Board shall elect a Vice Chairperson to act in the Chairperson's absence.
[Amended 11-10-2014 by Ord. No. 16-2014]
(2)
Expenses. The Planning Board shall have the power and authority to employ experts, clerks and a secretary, and to pay for their services and such other expenses as may be necessary and proper, not exceeding in all the appropriation that may be made by the City Council for the Planning Board. The City Council may also provide for compensation to be paid to the members of the Planning Board.
(3)
Rules. The Planning Board may adopt rules for its operations as may be necessary to carry out its duties under this chapter. In particular, the Board shall conduct itself according to the following:
(a)
Meetings. The Planning Board shall have regularly scheduled meetings or shall meet at such other times as the Chairperson determines. The Planning Board may also advertise and hold public hearings when it desires. Notice of all public hearings shall be published in the official paper at least five days prior to the date of the meeting. All meetings of the Planning Board shall be open to the public.
(b)
Records. The Board shall keep minutes of its proceedings. All decisions of the Board shall be recorded in the minutes which shall fully set forth the reasons for the decision of the Board and the findings of fact on which the decision was based, and such record of every official determination of the Board shall be filed in the office of Planning and Development as a public record.
(c)
Quorum and voting. Attendance by a majority of the Board's fully authorized membership, not the number of filled positions, satisfies a quorum to make official decisions. All decisions shall be made by at least a majority vote of the full membership. In site plan and special permit applications referred to the County Planning Board, which recommends denial or approval with modifications, a majority plus one vote of the Board's full membership shall be required to act contrary to the County Planning Board's recommendation; however, the Planning Board may deny any application by a simple majority vote of its full membership.
D.
Powers and duties. The Planning Board shall have all the powers and duties prescribed by law and this chapter. The primary responsibility of the Planning Board is to advise the City Council, City staff and other agencies and boards on matters affecting community development. In particular, the powers of the Planning Board are:
(1)
Community plan. The Planning Board may prepare a community plan as will provide for the improvement of the City and its future growth, protection and development, and will afford adequate facilities for housing for all income levels, transportation, distribution, comfort, convenience, public health, safety and segments of the common general welfare of its population.
(2)
Land use regulations. The Planning Board may draft and recommend the adoption or amendment of land use regulations to the City Council.
(3)
Review subdivisions. The Planning Board may approve, conditionally approve or disapprove subdivision plans for the purpose of providing for the orderly and wise development of the City and affording adequate facilities for housing, transportation, distribution, comfort, convenience, safety and the health and welfare of its population.
(4)
Review site plans. The Planning Board may review and approve, approve with modifications or disapprove site plans according to standards set forth in this chapter.
(5)
Official Map. The Planning Board shall review and make a recommendation to the City Council, within 30 days of such referral, to change or add to the Official Map of the City so as to lay out new streets, highways or parks or to widen or close existing streets, highways or parks. The City Council's adoption or revision of the Official Map does not obligate the City to commence condemnation proceedings to acquire land in the bed of a street as shown on the map, nor does it compel the City to open a street shown on the map.
(6)
Report on referred matters. The Planning Board may report on all matters referred to it by the Zoning Board of Appeals and the City Council, including proposed amendments to this chapter.
(7)
Investigations and reports. The Planning Board shall have authority to make investigations, maps and reports and recommendations relating to the planning and development of the City as it deems desirable, provided that the total expenditures of such actions shall not exceed the appropriations for its expenses.
(8)
Special permits. After public notice and hearing, site plan review by the County Planning Board, proof of receipt of all applicable federal and state permits and after taking into consideration the public health, safety and general welfare and subject to appropriate conditions and safeguards, a special permit may be granted.
E.
Appeals. Any person aggrieved by any decision of the Planning Board may apply to the Supreme Court for review under Article 78 of Civil Practice Law and Rules. Such proceedings shall be instituted within 30 days after filing of a decision in the office of the City Clerk. Costs shall not be allowed against the Planning Board unless it shall appear to the Court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from.
§ 221-83 Zoning Board of Appeals; appeals procedure.
A.
Authority. As authorized by § 81 of the General City Law, there shall be a Zoning Board of Appeals (ZBA) consisting of five members, holding staggered three-year terms, appointed by the Mayor and City Council. Additionally, pursuant to § 81(11) of the General City Law, one alternate member may be appointed by the Mayor and City Council to substitute for a regular member of the Zoning Board of Appeals in the event that a regular member is unable to participate in matters before the Zoning Board of Appeals because of a conflict of interest, illness or other absence.
[Amended 5-27-2008 by L.L. No. 5-2008; 11-10-2014 by Ord. No. 16-2014; 6-12-2017 by Ord. No. 9-2017]
B.
Members.
[Amended 5-27-2008 by L.L. No. 5-2008; 11-10-2014 by Ord. No. 16-2014]
(1)
Appointment. Members of the Zoning Board of Appeals and alternate members shall be appointed by the Mayor and City Council, who shall have the authority to remove any member for cause after a public hearing.
(2)
Removal. Members may be removed by the Mayor and City Council for cause and after a public hearing has been held. Cause for removal may include, but shall not be limited to, unexcused absences from two consecutive regularly scheduled meetings, failure to fulfill general attendance requirements or failure to complete prescribed training. The Director of Planning and Development shall notify the City Manager in writing on or about December 1 in any year, or at any other time if warranted, of any member who fails to comply with the minimum requirements for meeting attendance and/or training in any calendar year. In the event a member of the Zoning Board of Appeals has failed to complete the minimum attendance and/or training requirements set forth in this chapter, then the Mayor and City Council may remove such member for cause as herein provided:
(a)
Notice. Such members shall be mailed a written notice specifying the nature of the failure of such member to meet the minimum requirements regarding training and attendance.
(b)
Public hearing. Such notice shall specify a date, not less than 10 or more than 30 days from the date of mailing such notice, when the Mayor and City Council shall convene and hold a public hearing on whether or not such member should be removed from service on such Board. Such notice shall also specify the time and place of such hearing.
[Amended 11-10-2014 by Ord. No. 16-2014]
(c)
Public notice. Public notice of such hearing shall be published in a paper of general circulation within the town at least 10 days prior to the date of the public hearing.
(d)
Conduct of hearing. The public hearing on the charges shall be conducted before the Mayor and City Council during a City Council meeting. The member shall be given an opportunity to present evidence and to call witnesses to refute the charges. A record of such hearing shall be made. The decision of the Mayor and City Council shall be in writing and shall set forth specific findings with respect to each charge against such member. Said decision and findings shall be filed in the office of the City Clerk and mailed by certified mail, return receipt, to the member within five business days of such filing.
[Amended 11-10-2014 by Ord. No. 16-2014]
(e)
Action by the Mayor and City Council. Following the hearing and upon a finding that such member has not met the minimum attendance and/or training established by this chapter, the Mayor and City Council may:
[Amended 11-10-2014 by Ord. No. 16-2014]
[1]
Remove such member from the Zoning Board of Appeals; or
[2]
Issue a written reprimand to such member without removing such member from such Board; or
[3]
Take no action if the Mayor and City Council shall find the reasons for failing to meet the minimum meeting attendance and/or training requirements are excusable because of illness, injury or other good and sufficient cause.
[Amended 11-10-2014 by Ord. No. 16-2014]
(f)
Nothing contained herein shall be deemed to limit or restrict the Mayor and City Council's authority to remove a member from the Zoning Board of Appeals for cause for reasons other than as enumerated herein. The procedural rules established under this section shall govern any hearing to remove a member for such cause.
[Amended 11-10-2014 by Ord. No. 16-2014]
(g)
In the event of the removal of a member for cause, such act shall not nullify any action or vote taken by said member as a member of the Zoning Board of Appeals.
(3)
Eligibility.
(a)
No member of the Planning Board shall be eligible for membership on the Zoning Board of Appeals.
(b)
No elected official shall be eligible for membership on the Zoning Board of Appeals.
(c)
No member of the Zoning Board of Appeals shall hold any paid position in the City.
(d)
Full-time residency in the City of Ogdensburg is required.
(e)
No person shall be disqualified from serving as a member of the Zoning Board of Appeals by reason of serving as a member or employee of the St. Lawrence County Planning Board or Department.
(f)
Any person who shall fail to be in compliance with the training and/or attendance requirements shall be ineligible for reappointment to this Board.
(4)
Vacancy. If a vacancy shall occur other than by expiration of a term, it shall be filled by appointment for the unexpired term by the Mayor and City Council.
[Amended 11-10-2014 by Ord. No. 16-2014]
(5)
Attendance.
(a)
All members of the Zoning Board of Appeals shall be required to attend a minimum of 75% of the Board meetings scheduled within a calendar year. Additionally, no member shall be absent, without excuse, for more than two consecutive regularly scheduled meetings.
(b)
Noncompliance with minimum requirements relating to attendance at meetings shall be deemed a proper cause for removal from office.
(6)
Training.
(a)
All members of the Zoning Board of Appeals shall complete a minimum of five hours of relevant training within one year from the date of their initial appointment to the Zoning Board of Appeals. Thereafter, each member shall complete four hours of relevant training in each subsequent year of membership. Training sessions which relate to the duties of members of the Zoning Board of Appeals may include, but shall not be limited to, programs offered by the New York State Department of State, New York State Planning Federation, New York State Department of Environmental Conservation, St. Lawrence County Planning Department, New York State Conference of Mayors, and other such entities, as well as in-house updates, seminars, or other web-based training as may be approved and recommended by the Director of Planning and Development and the City Manager and/or prescribed by the City Council by resolution or as required under § 81(7-a) of the General City Law.
(b)
The costs of such seminars, workshops or continuing education courses so designated shall be a City charge. Members shall also be reimbursed for travel and meal expenses according to the administrative regulations. In order to be eligible for cost assumption and expense reimbursement, such training session shall be approved in advance by the Director of Planning and Development.
(c)
Noncompliance with minimum requirements relating to training shall be deemed a proper cause for removal from office.
C.
Officers, expenses and rules.
(1)
Officers. The Mayor and City Council shall appoint the Zoning Board of Appeals Chairperson. The ZBA membership shall elect a Vice Chairperson to act as the Chairperson when the appointed Chairperson is absent.
[Amended 11-10-2014 by Ord. No. 16-2014]
(2)
Expenses. The City Council shall provide an appropriation to the ZBA to cover necessary expenses, including the means for the ZBA to provide proper notice of and maintain a record of its meetings and public hearings. The City Council may also provide for compensation to be paid to the members of the Zoning Board of Appeals.
(3)
Rules. The ZBA may adopt rules for its operations as may be necessary to carry out its duties under this chapter. In particular, the Board shall conduct itself according to the following:
(a)
Meetings. All meetings and hearings of the ZBA shall be held at the call of the Chairperson and at such other times as a majority of the members of the full Board may determine. Public notice of all meetings shall be published in the official paper at least 10 days prior to the date of the meeting or hearing. All meetings of the ZBA shall be open to the public.
(b)
Records. The Board shall keep minutes of its proceedings, showing the vote of each member upon every question put to vote or, if absent or failing to vote, indicating said fact. All decisions of the Board shall be recorded in the minutes which shall fully set forth the reasons for the decision of the Board and the findings of fact on which the decision was based, and such record of every official determination of the Board shall be filed in the office of Planning and Development as a public record.
(c)
Voting. A concurring vote of four members of the Zoning Board of Appeals shall be necessary to reverse any order, requirement, decision or determination of the Director of Planning and Development or the Code Enforcement Officer. In variance applications referred to the County Planning Board, which recommends denial or approval with modifications, a majority plus one vote of the Board's full membership shall be required to act contrary to the County Planning Board's recommendations; however, the ZBA may deny any application by a simple majority vote of its full membership.
[Amended 10-22-2007 by Ord. No. 10-2007]
(d)
Eligible applicants. An application for an appeal from any decision made by the Director of Planning and Development or the Code Enforcement Officer may be initiated by any person or party aggrieved or by an officer, department or board of the City. An application for a variance may only be made by the property owner or with written permission of the property owner. An appeal for an interpretation or variance may be made only after a determination and notification of action is taken by the Director of Planning and Development or the Code Enforcement Officer, except where such appeal is instituted by an official of the City or the Planning Board.
[Amended 10-22-2007 by Ord. No. 10-2007]
(e)
Rehearing. The ZBA may rehear any order, decision or determination of the Board previously reviewed upon a motion initiated by any member of the Board and adopted by the unanimous vote of the members present, but not less than a majority of all the members. Upon such rehearing, held with notice given as for the original hearing, the Board may reverse, modify or annul its original decision by a unanimous vote of the members present.
D.
Procedure.
(1)
Application. Appeals and applications made to the ZBA shall be in writing on forms available from the Director of Planning and Development or the Code Enforcement Officer. Every application shall refer to the specific provision of the regulations involved and shall exactly set forth the interpretation that is applied for or demonstrate a practical difficulty or unnecessary hardship for variance applications. The Director of Planning and Development or the Code Enforcement Officer shall transmit to the Board all of the records concerning the case which is being appealed.
[Amended 10-22-2007 by Ord. No. 10-2007]
(2)
Time limit for appeals. All appeals of decisions of the Director of Planning and Development or the Code Enforcement Officer shall be applied for within 30 days after filing of a decision in the office of the City Clerk.
[Amended 10-22-2007 by Ord. No. 10-2007]
(3)
Referrals. Appeals may be referred to the City Planning Board for a nonbinding recommendation at the request of the Zoning Board of Appeals. Where an appeal for a variance involves lands within 500 feet of an adjoining municipality, state or county highway or state- or county-owned land on which a public building is situated, the appeal shall be referred to the Saint Lawrence County Planning Board and acted upon in accord with the provisions of § 239 of the General Municipal Law.
(4)
Public hearing. The ZBA shall fix a reasonable time for a public hearing in connection with an appeal and shall give public notice by publication in the official newspaper at least 10 days prior to that date. Additionally, notice of the public hearing shall be mailed to the applicant and to all owners of property which lie adjacent to or within 100 feet for an area variance or 300 feet for a use variance of the property in question at least five days before such hearing.
(5)
Decision and notification. Within 60 days from the date of any public hearing the Board shall render a determination on any appeal and notify the applicant, in writing, within five working days of the date of the determination. The ZBA shall further notify the Director of Planning and Development or the Code Enforcement Officer, City Clerk and Planning Board of the action taken on any application.
[Amended 10-22-2007 by Ord. No. 10-2007]
(6)
Expiration of variance. Unless construction is commenced and diligently pursued within six months of the date of granting a variance, such variance shall become null and void unless, upon application and receipt, an extension is granted by the ZBA.
(7)
Appeal from decision of the Zoning Board of Appeals. Any person aggrieved by any decision of the Zoning Board of Appeals may apply to the Supreme Court for relief under Article 78 of the Civil Practice Law and Rules. Such proceeding must be instituted within 30 days after the filing of a decision in the office of the City Clerk.
E.
Powers and duties. The Zoning Board of Appeals shall have all the powers and duties prescribed by law and this chapter. In particular, the powers of the ZBA are:
(1)
Interpretation: To decide any question involving the interpretation of any provision of this chapter, including determination of the exact location of any zoning district boundary or any other determination made in the application and administration of this chapter. Such interpretation shall be considered and rendered by the Board only upon application or appeal following a determination made by the Director of Planning and Development or the Code Enforcement Officer, unless requested by an officer of the City or the Planning Board.
[Amended 10-22-2007 by Ord. No. 10-2007]
(2)
Variances.
(a)
Variances may be granted to modify or vary the strict application of any of the requirements of this chapter so that the spirit of this chapter shall be observed, public safety and welfare secured and substantial justice done where strict application would result in a practical difficulty or unnecessary hardship that would deprive the owner of the reasonable use of the land or building involved. The unnecessary hardship or practical difficulty must relate to the land, not the applicant, as all variances run with the land. A hardship or difficulty which is merely personal to the current owner of real property will not justify the granting of a variance which runs with the land. Variances granted are subject to site plan review according to Article XV.
(b) AREA VARIANCE USE VARIANCE
Definitions. As used in this section, the following terms shall have the meanings indicated:
[Amended 1-23-1995 by Ord. No. 1-1995]
The authorization by the Zoning Board of Appeals for the use of land in manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations, such as minimum lot size, minimum lot width, minimum setbacks, off-street parking requirements or sign limitations.
The authorization by the Zoning Board of Appeals for the use of land for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations.
§ 221-84 Standards for granting variances.
[Amended 1-23-1995 by Ord. No. 1-1995]
Following are the standards for granting use and area variances based upon New York State case law through 1993:
A.
Use variance standards. To grant approval for a use variance request, the applicant must show that an unnecessary hardship exists with using the property in strict compliance with this chapter. No such use variance shall be granted by the Zoning Board of Appeals without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship. In determining whether an unnecessary hardship exists, the ZBA's findings must establish that each and every of the following tests is met:
(1)
Reasonable return. The applicant must demonstrate an inability to realize a reasonable return under any of the uses permitted by this chapter. There must be dollars-and-cents proof of the property's inability to earn a reasonable return; failure to realize the highest return is not considered a hardship. Proof required to show dollars-and-cents proof is not met by a simple statement by the applicant, or on the part of a realtor, that the land will not at this time attract a buyer or developer for a purpose consistent with this chapter. The New York Court of Appeals has stated that dollars-and-cents proof may be shown by the following items:
(a)
The amount paid for the parcel of land in question;
(b)
The current value of the parcel;
(c)
The maintenance expenses;
(d)
The amount of taxes on the land;
(e)
The amount of mortgages and other encumbrances, such as liens on the property;
(f)
Income from the land; and
(g)
Other facts relevant to the particular circumstances of the case.
(2)
Uniqueness. The hardship is unique to this parcel and is not general throughout the zoning district. The applicant must prove that there are certain features or conditions of the parcel that make it possible to earn a reasonable return without some adjustment of the zoning regulations as they apply to the applicant's property. If features or conditions are generally applicable throughout the district, a variance should not be granted. If the hardship is common throughout the area, relief should be accomplished by amendment to this chapter rather than by granting a variance.
(3)
Character. The applicant must prove that the requested modification will not change the character or quality of the neighborhood. In addition, the spirit of this chapter should be preserved. Reviewing the purpose statements of the zoning district for consistency with the proposed use is one way to determine whether the character of the neighborhood is preserved and the spirit of this chapter is upheld.
(4)
Self-created hardship. If the hardship complained of is self-imposed, then the variance request may be denied. An applicant who acquires land or proposes to acquire land for a purpose known to be prohibited by this chapter creates his or her own hardship. Even if the applicant did not actually learn of the prohibition at the time of purchase he or she is nevertheless charged with knowing the restrictions on use.
B.
The Zoning Board of Appeals, in 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 variance standards. In making its determination, the Zoning Board of Appeals shall take into consideration the benefit to the applicant if the variance is granted, as weighted against the detriment to the health, safety and welfare of the neighborhood or community by such grant. In making such determination the Board shall consider:
(1)
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.
(2)
Whether the benefit sought by the applicant can be achieved by some method feasible for the application to pursue, other than an area variance.
(3)
Whether the requested area variance is substantial.
(4)
Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.
(5)
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.
D.
The Zoning Board of Appeals, in 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.
E.
Following are some of the public purposes:
(1)
Protect the health and safety of residents.
(2)
Secure safety from the spread of fire and provide access for emergency equipment.
(3)
Protect the rights of landowners and residents to adequate light, air and sunshine.
(4)
Prevent the overcrowding of land and capacity of the streets.
(5)
Protect the value of property by prohibiting the intrusion of inappropriate large, overshadowing structures.
(6)
Uphold the prevailing community character and form of the neighborhood.
(7)
Protect adjacent properties from detrimental impacts.
(8)
Reserve unbuilt areas for street widening.
F.
Imposition of conditions. The Zoning 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 the Zoning Ordinance and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.
§ 221-85 (Reserved) [1]
[1]
Editor's Note: Former § 221-75, Enforcement, was repealed 10-22-2007 by Ord. No. 10-2007.
§ 221-86 Building permit required.
[Added 6-27-2005 by Ord. No. 6-2005; 10-22-2007 by Ord. No. 10-2007]
A.
In addition to a permit required pursuant to Chapter 97,[1] any one, or a combination of the following, shall require a building permit:
(1)
The construction, erection or placement of any building or structure unless expressly exempted from this chapter.
(2)
The expansion, addition or alteration of a building or structure that would in any way alter its exterior dimensions, its interior structural members or the provision for entrance or exit.
(3)
The introduction of any new, additional, changed or expanded use.
(4)
The alteration of any shoreline or major landform or the stripping of topsoil for commercial purposes or in the preparation of a site for uses that have not yet received a required building permit.
(5)
The deposit, removal, storing or excavation of rock, sand, dirt, gravel, clay or other like materials in the amount of more than 100 cubic yards in all districts on any lot or parcel for the purpose of altering existing grades except as otherwise exempted in § 221-76B(2).
B.
Permits issued pursuant to this section shall be governed by the following:
(1)
The permit shall include as a condition thereof a finished grade plan which will not adversely affect the adjacent land and as a condition thereof shall regulate the type of fill and general maintenance of the site and adjacent area.
(2)
Exceptions.
(a)
Foundations and basements. No separate permit shall be required for the deposit, excavation, removal, or storage of rock, sand, dirt, gravel, clay or other like material for the purpose of the foundation, cellar or basement of some immediately pending structure to be erected, built, or placed thereon contemporaneously with or immediately following such excavation, removal, or storage, providing a building permit has been issued.
(b)
Road construction. No permit shall be required for such excavations, deposit, removal, or storage of rock, sand, dirt, gravel, clay, other like material as may be required by the state or City authorities, their agents or private utility companies franchised by the City in connection with the construction or maintenance of roads, streets and highways.
§ 221-87 Applications.
[Amended 10-22-2007 by Ord. No. 10-2007]
An application for a building permit shall be submitted in writing to the Code Enforcement Officer along with the required submission fee. An application for a special permit or a variance shall be submitted in writing to the Zoning Administration Officer along with the required submission fee. The application should satisfy the City submission requirements, which are available from the Department of Fire, Division of Codes, and/or the Department of Planning and Development.
§ 221-88 Issuance or denial of building permit.
[Amended 10-22-2007 by Ord. No. 10-2007]
The Code Enforcement Officer, or his or her designee, shall, within 10 days after receiving a complete and properly prepared application, either issue or deny a building permit. If an application requires site plan review by the Planning Board, the planning and development staff shall refer the application to the Planning Board along with a report of any deficiencies with the proposal. If a building permit is denied, the reasons for such denial shall be forwarded to the applicant in writing.
§ 221-89 (Reserved) [1]
[1]
Editor's Note: Former § 221-79, Expiration of building permits, was repealed 10-22-2007 by Ord. No. 10-2007.
§ 221-90 Certificates of occupancy and certificates of compliance.
[Amended 10-22-2007 by Ord. No. 10-2007]
A certificate of occupancy or a certificate of compliance shall be required for any work that is the subject of a building permit issued pursuant to Chapter 97[1] or pursuant to this chapter. Said certificate shall comply with Chapter 97 and this chapter. Said permit shall be issued by the Code Enforcement Officer unless this Code requires otherwise. In such event, said certificate shall be issued jointly by the Director of Planning and Development and the Code Enforcement Officer. No certificate of occupancy shall be issued for a building or a use subject to site plan review by the Planning Board unless in conformance with the approved site plan and approved by the Director of Planning and Development. No certificate of occupancy shall be issued for a building or a use permitted subject to a variance granted by the Zoning Board of Appeals except in accordance with all conditions which may be prescribed by such Board and approved by the Director of Planning and Development.
§ 221-91 Appeals.
The Zoning Board of Appeals shall hear and decide appeals from, and review any order, decision or determination made in administering or enforcing this chapter.
A.
Zoning Board of Appeals. All appeals for relief from the application of this chapter in matters of interpretations or requests for an area variance or use variance shall be directed to the Zoning Board of Appeals which shall function as prescribed in § 221-73 of this chapter. Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this chapter, the Zoning Board of Appeals shall have the power to vary the requirements of the regulations so that the spirit of the law shall be observed, public safety and welfare secured and substantial justice done.
B.
Court review. Any person or persons, jointly or severally aggrieved by any decision of the Planning Board, Zoning Board of Appeals, City Council or any officer of the City concerning this chapter may have the decision reviewed in the manner provided by Article 78 of the Civil Practice Law and Rules, provided that the proceeding is commenced within 30 days after the receipt of written notice of the decision. Costs shall not be allowed against the City unless it appears to the Court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from.
§ 221-92 Complaints; investigation.
A.
Citizen complaint. Any person may file with the Code Enforcement Officer a written signed complaint against any alleged violation of this chapter.
[Amended 10-22-2007 by Ord. No. 10-2007]
B.
Investigation. As directed by the Planning Board, Zoning Board of Appeals, the Zoning Administration Officer, the Director of Planning and Development or the City Council or by receipt of a signed, written citizen complaint, the Code Enforcement Officer, or his or her designee, shall make an investigation into the alleged violation. Depending upon findings of fact, a correction notice, stop-work order or other penalty or remedy may be issued to the liable person or persons as appropriate.
[Amended 10-22-2007 by Ord. No. 10-2007]
C.
Persons liable. The owner, tenant or occupant of any building or land or part thereof and any architect, builder, contractor, agent or other person who participates in, assists, directs, creates or maintains any situation that is contrary to the requirements of this chapter shall be held responsible for the violation and suffer the penalties and be subject to the remedies provided.
D.
Procedures upon discovery of violations.
(1)
If the Zoning Enforcement Officer, or his or her designee, finds that any provision of this chapter are being violated, the person or persons responsible for such violation shall be sent a written notice indicating the nature of the violation and ordering the action necessary to correct it.
(2)
The final written notice (the initial written notice may be the final notice) shall state what action the City's representative intends to take if the violation is not corrected and shall advise that such decision may be appealed to the Zoning Board of Appeals in accordance with § 221-73.
(3)
In cases where delay would seriously threaten the effective enforcement of this chapter or pose a danger to the public health, safety or welfare, the administration may seek enforcement without prior written notice by invoking any of the penalties or remedies authorized below.
§ 221-93 Stop-work orders.
[Amended 10-22-2007 by Ord. No. 10-2007]
Stop-work orders. In addition to the authority granted in Chapter 97,[1] a stop-work order may be issued to preclude the continued and further violation of this chapter or to protect the public's health or safety. Such stop-work order shall stay all activity in conjunction with any violation of this chapter. Any stop-work order will stipulate that within 30 days a permit or certificate shall be obtained noting compliance with this chapter. If such permit or certificate is not obtained by the responsible party or the work continues in violation of the stop-work order, action by the City will be initiated to compel compliance, using such penalties or remedies as hereafter provided for.
§ 221-94 Revocation of permits.
A.
A building or special use permit may be revoked by the Zoning Enforcement Officer, or his or her designee, in accordance with the provisions of this section, if the permit recipient fails to develop or maintain the property in accordance with plans submitted, the requirements of this chapter or any additional requirement lawfully imposed by the permit- issuing board.
B.
Before a permit may be revoked, notice and hearing requirements for hearings of the Zoning Board of Appeals (see § 221-73, Zoning Board of Appeals, appeals procedure) shall be complied with. The notice shall inform the permit recipient of the alleged grounds for the revocation.
C.
The burden of presenting evidence sufficient to authorize the permit-issuing authority to conclude that a permit should be revoked shall be upon the party advocating that position. The burden of persuasion shall also be upon that party. A motion by the permit-issuing board shall include, insofar as practicable, a statement of the specific reasons or findings of fact that support the motion.
D.
Before a building or special use permit may be revoked, the permit recipient shall be given 10 days' notice of intent to revoke the permit and shall inform the recipient of the alleged reasons for the revocation and of his or her right to obtain an informal hearing on the allegations. If the permit is revoked, a written statement of the decision along with the reasons for the action shall be provided to the permittee in writing.
E.
No person may continue to make use of land or buildings in the manner authorized by any building or special use permit after such permit has been revoked in accordance with this section.
§ 221-95 Judicial review.
Any person or persons, jointly or severally aggrieved by any decision of the Planning Board, Zoning Board of Appeals or City Council concerning this chapter, may have the decision reviewed in the manner provided by Article 78 of the Civil Practice Law and Rules, provided that the proceeding is commenced within 30 days after filing of the decision with the City Clerk. Costs shall not be allowed against the City unless it appears to the Court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from.