Orchard Park Town City Zoning Code
ARTICLE IX
Administration and Enforcement
§ 144-63 General procedures.
A.
General sequence of steps. All persons desiring to undertake any new construction, structural alteration or changes in the use of a building or lot shall apply to the Zoning Officer for a building permit by filling out the appropriate application form and by submitting the required fee. The Zoning Officer will then either issue or refuse the building permit or refer the application to the Town Board or the Zoning Board of Appeals. After the building permit has been received by the applicant, he may proceed to under-take the action permitted in the building permit and, upon completion of such action, shall apply to the Zoning Officer for a certificate of occupancy. If the Zoning Officer finds that the action of the applicant has been taken in accordance with the building permit, he will then issue a certificate of occupancy allowing the premises to be occupied.
B.
Building permit types. Under the terms of this chapter, the following classes of building permits may be issued:
(1)
Permitted use. A building permit for a permitted use may be issued by the Zoning Officer on his own authority, except commercial or industrial uses require Town Board approval.
(2)
Special uses. A building permit for a special use may be issued by the Zoning Officer after review by the Planning Board and upon the order of the Town Board.
(3)
Building permit after an appeal or a request for a variance. A building permit may be issued by the Zoning Officer upon the order of the Zoning Board of Appeals and after a public hearing held by the Board of Appeals for the purpose of deciding upon an appeal or a request for a variance.
C.
Violations.
(1)
Compliants of violations. Whenever a violation of this chapter occurs, any person may file a complaint in regard thereto. All such complaints must be in writing and shall be filed with the Zoning Officer, who shall properly record such complaint and immediately investigate and report thereon to the governing body.
(2)
Penalties for offenses. A violation of this chapter is an offense punishable by a fine not exceeding $250 for any offense and/or imprisonment not exceeding 15 days. Each week that a violation is permitted shall constitute a separate offense.
(3)
Procedure for abatement of violations. In case any building or structure is erected, constructed, reconstructed, altered, repaired, converted or maintained, or any building, structure of land is used, in violation of this chapter or of any ordinance or regulation made under authority conferred hereby, the governing body or the Zoning Officer or a police officer or other proper official, in addition to other remedies, may institute any appropriate action or proceedings to prevent the occupancy of said building, structure or land or to prevent any illegal act, conduct, business or use in or about such premises.
D.
Appeals.
(1)
Procedure for appellant.
(a)
An appeal to the Zoning Board of Appeals from any ruling of any administrative officer administering any portion of this chapter may be taken by any person aggrieved or by an officer, board or bureau of the town affected thereby. Such appeal shall be taken to the Zoning Board of Appeals by filing with the Secretary thereof a notice of appeal, specifying the grounds therefor.
(b)
All applications and appeals made to the Board of Appeals shall be in writing on forms prescribed by the Zoning Officer. Every application or appeal shall refer to the specific provision of this chapter and shall exactly set forth the interpretation that is claimed, the plans for a special use or the details of the variance that is applied for, in addition to the following information:
[1]
The name and address of the applicant or appellant.
[2]
The name and address of the owner of the district lot to be affected by such proposed change or appeal.
[3]
A brief description and location of the district lot to be affected by such proposed change or appeal.
[4]
A statement of the present zoning classification of the district lot in question, the improvements thereon and the present use thereof.
[5]
A reasonably accurate description of the present improvements and the additions or changes intended to be made under the application, indicating the size of such proposed improvements, material and general construction thereof. In addition, there shall be attached a plot plan of the real property to be affected, indicating the location and size of the lot and size of improvements thereon and proposed to be erected thereon.
(2)
Procedure for Zoning Officer.
(a)
The notice of appeal in any case where a permit has been granted or denied by the Zoning Officer shall be filed within such time as shall be prescribed by the Zoning Board of Appeals under general rule, after notice of such action granting or denying the permit has been mailed to the applicant. The Zoning Officer shall forthwith transmit to the Zoning Board of Appeals all papers constituting the record upon which the action appealed from was taken or, in lieu thereof, certified copies of said papers.
(b)
It shall be competent for the Zoning Officer to recommend to the Zoning Board of Appeals a modification or reversal of his action in cases where he believes substantial justice requires the same but where he has not himself sufficient authority to grant the relief sought.
(c)
Procedure for the Zoning Board of Appeals. The Zoning Board of Appeals shall decide each appeal within a reasonable time. Upon the hearing, any party may appear in person or be represented by an agent or attorney. The Zoning Board of Appeals's decision shall be immediately filed in its office and be a public record. In the exercise of its functions upon such appeals or upon exceptions, the Zoning Board of Appeals may, in conformity with the provisions of this chapter, reverse or affirm, wholly or partly, or modify the order, requirement, decision or determination appealed from, or may make such order, requirement, decision or determination in accordance with the provisions hereof.
(d)
Expiration of appeal decision. A decision on any appeal or request for a variance shall expire if the applicant fails to obtain any necessary building permit or comply with the conditions of said authorized permit within 12 months from the date of authorization thereof. The Zoning Board of Appeals, in its judgment of the special circumstances presented by a particular case, shall have the ability to reduce the expiration time to not less than six months if it believes said reduction is in the interest of public health safety or general welfare.
[Amended 6-20-2007 by L.L. No. 2-2007]
(e)
Stay of proceedings. An appeal shall stay all proceedings in furtherance of the action appealed from unless the Zoning Officer certifies to the Zoning Board of Appeals, after the notice of appeal shall have been filed, that by reason of facts stated in the certificate a stay would, in his 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 the Supreme Court on application, on notice to the Zoning Officer and on due cause shown.
(f)
Appeal from decision of Zoning Board of Appeals. All decisions of the Zoning Board of Appeals are subject to court review in accordance with the applicable laws of the State of New York.
E.
Public hearings and notice.
(1)
The Zoning Board of Appeals shall fix a reasonable time for the hearing of the appeal or other matter referred to it and give public notice thereof by the publication in the official paper of a notice of such hearing at least five days prior to the date thereof and shall at least five days before such hearing, mail notices thereof to the following officials, persons and owners of properties involved and in accordance with the requirements of § 267 of Article 16, Chapter 62 of the Consolidated Laws of the State of New York:[1]
(a)
When appealing action of the Zoning Officer. In case of an appeal alleging error or misinterpretation in any order or other action by the Zoning Officer, the following persons shall be notified: the appellant and the person or persons, if any, who benefit from the order, requirement, regulation or determination.
(b)
When appealing for variance. In case of an appeal for a variance, the following persons shall be notified: All owners of property within 500 feet of the nearest line of property for which the variance use is sought and to such other owners as the Chairman of the Zoning Board of Appeals may direct. Notices to owners of the property abutting the property for which the variance is sought shall be sent via first-class mail.
[Amended 10-7-1992]
[1]
Editor's Note: See now Town Law §§ 267, 267-a, 267-b and 267-c.
(2)
Adjournment of hearing. Upon the day for hearing any application or appeal, the Zoning Board of Appeals may adjourn the hearing for a reasonable period for the purpose of causing such further notice as it deems proper to be served upon such other property owners as it decides may be interested in said application or appeal.
(3)
Required interval for hearings on applications and appeals after denial. Whenever the Board, after hearing all the evidence presented upon an application or appeal under the provisions of this chapter, denies the same, the Zoning Board of Appeals shall refuse to hold further hearings on the said or substantially similar application or appeal by the same applicant, his successor or assign for a period of one year except and unless the Zoning Board of Appeals shall find and determine from the information supplied by the request for a rehearing that changed conditions have occurred relating to the promotion of the public health, safety, convenience, comfort, prosperity and general welfare and that a reconsideration is justified. Such rehearing would be allowable only upon a motion initiated by a member of the Zoning Board of Appeals and adopted by the unanimous vote of the members present but not less than a majority of all members.
F.
Fees. Fees for the issuance of permits, appeals, amendments and other zoning actions shall be paid to the town at the office of the Zoning Officer upon the filing of an application and in accordance with the schedule of fees established by the Town Board.
§ 144-64 Zoning Officer.
This chapter shall be enforced by the Zoning Officer, who shall be appointed by the Town Board. No building permit or certificate of occupancy shall be issued by him except where all the provisions of this chapter have been complied with.
A.
Building permits.
(1)
General. No building or structure shall be erected, added to or structurally altered until a permit therefor has been issued by the Zoning Officer. Except upon a written order of the Zoning Board of Appeals, no such building permit or certificate of occupancy shall be issued for any building where said construction, addition or alteration or use thereof would be in violation of any of the provisions of this chapter.
(2)
Information necessary for application. There shall be submitted with all applications for building permits two copies of a layout or plot plan drawn to scale showing the actual dimensions of the lot to be built upon, the exact size and location on the lot of the building and accessory buildings to be erected and such other information as may be necessary to determine and provide for the enforcement of this chapter. The information must be duly sworn to by the owner of record of the real estate for which such permit is sought.
(3)
Public record. One copy of such layout or plot plan shall be returned when approved by the Zoning Officer, together with such permit, to the applicant upon the payment of a fee as indicated in this chapter. The second copy, with a copy of each application with accompanying plan, shall become a public record after a permit is issued or denied.
(4)
Records. The Building Inspector shall:
(a)
Maintain in the office of the Town Clerk files of all applications for building permits with plans and for certificates of occupancy, and records of all building permits and certificates of occupancy issued by him, which records shall be maintained under the supervision of the Town Clerk and shall be open to public inspection.
(b)
Keep a record of every identifiable violation of any of the provisions of this chapter that comes to his attention and the action taken on such violation, which records shall be public records.
(c)
File a monthly report summarizing for the period since his last previous report all building permits and certificates of occupancy issued by him and all violations of this chapter which have come to his attention, together with the action taken by him on such violations or the action proposed to be taken. A copy of each such report shall be filed with the Planning Board at the same time it is filed with the Town Board.
(5)
Water supply and sewage disposal. All water supply and sewage disposal installations shall conform to the New York State Department of Health regulations. No plot plan shall be approved by the Zoning Officer in any zone unless such conformity is certified on the plan. Drainage affecting adjacent properties shall be considered by the Zoning Officer before issuing a building permit, including possible runoffs to said properties.
(6)
Issuance of permits. It shall be the duty of the Zoning Officer to issue a building permit, provided that he is satisfied that the structure, building, a sign, parking area of premises and the proposed use thereof conform to all requirements of this chapter, and that all other reviews and actions, if any, called for in this chapter have been complied with and all necessary approvals secured therefore. All building permits shall be issued in duplicate and one copy shall be kept conspicuously on the premises affected and protected from the weather whenever construction work is being performed thereon. No owner, contractor, workman or other person shall perform any building operations of any kind unless a building permit covering such operation has been displayed as required by this chapter, nor shall any such persons perform building operations of any kind after notification of the revocation of said building permit. As soon as the foundation is completed, an as-built survey by a licensed surveyor showing the exact location of the building shall be submitted to the Building Inspector as proof that no setback lines have been violated and prior to any framing of the building.
(7)
Denial of permits. When the Zoning Officer is not satisfied that the applicant's proposed development will meet the requirements of this chapter, he shall refuse to issue a building permit and the applicant may appeal to the Zoning Board of Appeals for a reversal of the Zoning Officer's decision.
(8)
Revocation of permits. If it shall appear at any time to the Zoning Officer that the application or accompanying plot is in any material respect false or misleading or that work is being done upon the premises differing materially from that called for in the application filed with him under existing laws or ordinances, he may forthwith revoke the building permit, whereupon it shall be the duty of the person holding the same to surrender it and all copies thereof to said Zoning Officer. After the building permit has been revoked, the Zoning Officer, in his discretion, before issuing the new building permit, may require the applicant to file an indemnity bond in the favor of the Town of Orchard Park with sufficient surety, conditioned for compliance with this chapter and all building laws and ordinances then in force and in a sum sufficient to cover the cost of removing the building if it does not so comply.
(9)
Special uses. All applications for special uses shall be accompanied by plans and such other information as may be required in this chapter.
(10)
Right of entry. The Zoning Officer and his duly authorized assistants shall have the right to enter upon any land and into any building in the performance of their duties.
(11)
Inspection of buildings and structures. The Zoning Officer shall inspect or cause to be inspected every building or structure constructed, altered or used, subject to the requirements of this chapter, and shall order in writing the correction of any condition found in violation of the requirements of this chapter.
(12)
A building permit application must be filed for new construction or conversions of structures and any and all paved stabilized stone areas, drives or any other paved area in any B, I or D-R Zones. A site plan and a drainage plan must be submitted with the application described in this subsection, including the following:
[Added 1-2-1991]
(a)
The property survey and topographic plan must be stamped by a New York State licensed surveyor or engineer.
(b)
Existing grades of the subject property with elevation shots of adjacent property must be submitted. Such elevation shots must describe the property line and a sufficient distance from the property line to properly design the subject of the building permit application.
(c)
Such plan must include all proposed grades after development.
(d)
All such grades must show elevations from a benchmark which is known or assumed using the United States Geological Survey or its equivalent.
(e)
Where the plan involves a parking lot area, enclosed drainage piping into existing roadside or other approved drainage is required.
(f)
In the event that state or county permits are required, such permits must be obtained by the owner or contractor prior to submission of the building permit application. Copies of said permit shall accompany building permit applications.
(g)
Three copies of the plan shall be submitted to the Building Department. The Town Engineer shall approve all plans prior to issuance of a building permit.
[Amended 4-27-2011 by L.L. No. 1-2011]
B.
Certificate of occupancy.
(1)
General. No land shall be occupied or used and no building hereafter erected, altered or extended shall be used or changed in use until a certificate of occupancy shall have been issued by the Zoning Officer, stating that the building or proposed use thereof complies with the provisions of this chapter in respect to the following:
(a)
Occupancy or use of a building hereafter erected, struturally altered or moved.
(b)
Change in the use of an existing building except to another use of the same type.
(c)
Any change in use of a nonconforming use.
(d)
Occupancy or use of any vacant land except for any use consisting primarily of tilling the soil.
(2)
Application for certificate of occupancy. The application for a certificate of occupancy shall be made in writing by the owner of the property and shall state the type of occupancy, use or change in use which is proposed.
(3)
Expiration of building permits and certificates of occupancy. Each building permit shall expire and be automatically nullified six months from the date of issuance of said permit unless construction has been commenced within such six-month period, and two years from the date of issuance unless construction has been substantially completed within such two-year period. Each certificate of occupancy shall expire and be automatically nullified one year from the date of issuance unless occupancy has been established within such one-year period.
(4)
Compliance with law and ordinances prerequisite to issuance of certificate of occupancy. A certificate of occupancy will not be issued by the Zoning Officer until he is satisfied that the building, land and proposed occupancy or proposed use comply with all provisions of the New York State Uniform Fire Prevention and Building Code and other laws and with this chapter and all other ordinances of the town.
(5)
Record. The Zoning Officer shall maintain a record of all certificates, and copies shall be furnished upon request to any person having a proprietary or tenancy interest in the building affected.
(6)
Completion of projects. Each construction, reconstruction, exterior alteration or relocation project for which a building permit has been issued and which has been started shall be diligently prosecuted to completion.
§ 144-65 Zoning Board of Appeals.
A.
Organization.
(1)
Establishment. There is hereby established a Board of Appeals to consist of five members to be appointed by the Town Board.
(2)
Term of office of members. Of the members of the Board of Appeals first appointed, one shall hold office for the term of one year, one for two years, one for three years, one for four years and one for five years from and after his appointment. Their successors shall be appointed for the term of five years from and after the expiration of the terms of their predecessors in office.
(4)
Filling of vacancies. If a vacancy shall occur on the Board of Appeals other than by expiration of term, such vacancy shall be filled by the Town Board by appointment for the unexpired term.
(5)
Removal of members. The Town Board shall have the power to remove any member of the Board of Appeals for cause and after public hearing.
B.
Powers and duties. The Board shall hear and decide appeals and variances pursuant to the provisions of the laws of the State of New York and shall have the following powers:
(1)
Power to review orders, decision of Zoning Officer. The Board of Appeals shall have the power to review any order or decision of the Zoning Officer in case of alleged error or misinterpretation of the provisions of this chapter.
(2)
Power to grant variances. The Board of Appeals may, after due notice and public hearing and subject to appropriate conditions and safeguards, determine and vary the application of the regulations of this chapter in harmony with their general purposes and intent in the following cases:
(a)
Wherever it is provided in this chapter that the approval of the Board of Appeals is required.
(b)
Where temporary conditional permits for not more than two years for structures and uses in contravention of the requirements of this chapter are requested in undeveloped sections of the town, provided that such uses are important to the development of such undeveloped sections, and also provided that such uses are not prejudicial to adjoining and neighboring sections already developed.
(c)
Where public utility or public service uses or public buildings are found to be necessary for the public health, safety or the general welfare.
(d)
Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this chapter; provided, however, that the hardship suffered must be unique, applying to the premises in question but not applying generally to other premises in the same district. It must not be self created by any person having an interest in the property, or the result of mere disregard for or ignorance of the provisions of this chapter. Any relief granted shall be only that reasonably required to effect substantial justice, shall not be arbitrary or discriminatory and shall be granted with due consideration for its effect on the ultimate development of the district in accord with the Zoning Map.
C.
Procedure.
(1)
Meetings. All meetings of the Board of Appeals shall be held monthly or at the call of the Chairman and at such other times as the Board may determine and shall be open to the public.
(2)
Quorum established. Three members of the Board of Appeals shall constitute a quorum for the transaction of business, and the concurring vote of a majority of the members of the Board shall be necessary to reverse any order, requirement, decision or determination of the Building Inspector or to decide in favor of an applicant in any matter upon which it is required to pass under this chapter.
(3)
Records to be kept.
(a)
Minutes. The Board of Appeals shall keep minutes of its proceedings, showing the vote of each member upon every question, or if such member is absent or fails to vote, such fact shall be indicated in the minutes.
(b)
Official actions. The Board of Appeals shall also keep records of its examinations or other official actions.
(4)
Filing of rules, orders, decisions, etc.; to become public record. Every rule and regulation, every amendment or repeal thereof and every order, requirement, decision or determination of the Board of Appeals shall be immediately filed in the office of the Town Clerk and shall be a public record.