Oswego City Zoning Code
ARTICLE XIII
Board of Appeals; Variances
§ 280-88 Continuation of Board of Appeals.
The Board of Appeals of the City of Oswego existing at the time of adoption of this amendment shall continue to serve. The Board shall consist of seven members holding no elective office in the City, one of whom shall serve as Chairman, and shall receive no compensation for their services. Each member shall be appointed by the Mayor for terms of three years, beginning upon the date of the expiration of present appointments of existing members. In case of vacancies in the membership of the Board, the Mayor shall appoint new members to serve the unexpired part of the term of the vacant position.
§ 280-89 Powers and duties of Board of Appeals.
A.
The Board of Appeals shall be empowered and required to:
B.
In exercising the above-mentioned powers and duties, the Board of Appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, decision or determination as ought to be made, and to that end have all the powers of the Permit Administrator from whom the appeal is made.
C.
The concurring vote of four members of the Board of Appeals shall be necessary to reverse any order, requirement, decision or determination of the Permit Administrator or to decide in favor of the applicant any matter upon which such Board is required to pass.
D.
Every decision of the Board of Appeals shall be subject to review in accordance with Article 78 of the Civil Practice Laws and Rules, and such decision may be so appealed by any person aggrieved or by an officer, department, board or bureau of the city.
E.
Any appeal from a decision of the Permit Administrator properly filed with the Board of Appeals shall stay all proceedings in furtherance of the action appealed from, unless the Permit Administrator certifies to the Board of Appeals that, by reason of facts stated in the certification, a stay would, in his opinion, cause imminent peril to life and property.
F.
The Board of Appeals shall have the power to grant a restraining order to stay all proceedings in furtherance of the action appealed from, over any action by the Permit Administrator from whom the appeal is taken, upon notice to the Permit Administrator and on due cause shown.
§ 280-90 Variances.
A.
Area variances.
(1)
The Zoning Board of Appeals shall have the power, upon an appeal from a decision or determination of the administrative official charged with the enforcement of such ordinance or local law, to grant area variances as defined herein.
(2)
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:
(a)
Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance;
(b)
Whether the benefit sought by the applicant can be achieved by some method feasible for the applicant to pursue, other than an area variance;
(c)
Whether the requested area variance is substantial;
(d)
Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and
(e)
Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the Board of Appeals, but shall not necessarily preclude the granting of the area variance.
(3)
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.
B.
Use variances.
(1)
The Board of Appeals, on referral from the Zoning Administrator or on application by any person allegedly aggrieved by the strict application of any of the requirements of this chapter or desiring to deviate therefrom, shall have the power to grant use variances, as set forth herein. Application for variance shall be made to the Zoning Administrator in such form as he/she may prescribe.
(a)
Referral to Planning Board. At least 45 days before the date of public hearing held in connection with any application for a use variance submitted, the Board of Appeals shall transmit to the Planning Board a copy of said application, and shall request that the Planning Board submit to the Board of Appeals its advisory opinion on said application. The Planning Board shall submit a report of such advisory opinion prior to the date of said public hearing. The failure of the Planning Board to submit such report shall be interpreted as a favorable opinion for the granting of the use variance applied for.
(2)
No such use variance shall be granted by the Board of Appeals without the applicant showing 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 for each and every permitted use under the zoning regulations for the particular district where the property is located:
(a)
The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;
(b)
The alleged hardship relating to the property in question is unique and does not apply to a substantial portion of the district or neighborhood;
(c)
The requested use variance, if granted, will not alter the essential character of the neighborhood; and
(d)
The alleged hardship has not been self-created.
(3)
The 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.
§ 280-91 Special permits.
A.
Application and issuance of special permit. On referral by the Permit Administrator after application has been made to him for a building permit, or on direct application, the Board of Appeals is hereby authorized to issue a special permit for any use for which this chapter requires the obtaining of such permit from the Board of Appeals, subject to applicable regulations of this chapter.
B.
Referral to Planning Board. At least 45 days before the date of public hearing held in connection with any application for a special permit submitted, the Board of Appeals shall transmit to the Planning Board a copy of said application, and shall request that the Planning Board submit to the Board of Appeals its advisory opinion on said application. The Planning Board shall submit a report of such advisory opinion prior to the date of said public hearing. The failure of the Planning Board to submit such report shall be interpreted as a favorable opinion for the granting of the special permit applied for.
C.
Time limit, transfer and revocation. The Board of Appeals shall grant all special permits with no time limit for specified use approved by the special permit. Transfer of use to a new owner shall require the same conditions and requirements as specified in the granted special permit. Any special permit granted by the Board of Appeals is revocable or subject to reconsideration (rehearing) should any problem arise resulting from the use thereof, based on referral to the Board by the Permit Administrator.
D.
Submission of plans. Each application for a special permit shall be accompanied by three copies of a proposed site plan The location of the subject lot and all streets within a radius of 1,000 feet shall be shown on a separate drawing.
§ 280-92 Procedures of the Board of Appeals.
A.
Form of application.
(1)
The Board of Appeals shall act in strict accordance with the procedures specified by law and by this chapter and shall determine its own rules of conduct. All appeals and applications made to this Board shall be taken in writing on forms prescribed by the Board.
(2)
The Chairman of the Zoning Board of Appeals shall be empowered to administer oaths during any proceeding before the Board.
B.
Contents of application for variance, appeal or special permit.
(1)
Any person allegedly aggrieved by the strict application of any of the requirements of this chapter or desiring to deviate therefrom may apply to the Board of Appeals for a variance from any such requirements. Such application shall state the specific provisions of this chapter from which variance is sought and shall state precisely the interpretation which is sought and the details of the variance which is sought, together with the special circumstances which allegedly justify such variance.
(2)
Appeals or applications shall be taken within such time as shall be prescribed by the Board of Appeals by general rule by the filing with the Permit Administrator from whom the appeal is taken, and with the Board of Appeals, of a notice of appeal, specifying the grounds thereon.
(3)
The Permit Administrator shall forthwith transmit to the Board of Appeals all papers constituting the record upon which the action appealed from was taken.
C.
Public hearing.
(1)
The Board of Appeals shall, after due notice, hold a public hearing on every appeal or application for a variance or for a special permit referred or taken to said Board or upon which it is required to pass, in accordance with this chapter and the law. The Board of Appeals shall have published a notice of each such public hearing in a newspaper of general circulation in the City at least 10 days prior to such hearing.
(2)
All property owners within a 100-foot radius of the property which is subject to appeal or application shall be notified of the public hearing, in writing, by first class mail, by the Recording Secretary for the Zoning Board of Appeals.
D.
Findings and conclusions. After such public hearing and after considering the application, the Board of Appeals shall either grant or deny the variance or special permit and shall make written findings of fact and conclusions concerning the subject matter of such hearing, including the reasons for granting or denial of the relief sought. As to any proposed use, such findings of fact and conclusions shall be made concerning such use as described and represented by the applicant.
E.
Reporting and filing of decisions, permits and variances.
(1)
Every official and final decision of the Board of Appeals shall be by written resolution, each of which shall contain a full record of its findings in the particular case, and each of which shall be filed in the City Clerk's office, together with all pertinent documents. The Board of Appeals shall notify the Common Council and Planning Board, in writing, of each special permit and variance issued or granted under provisions of this chapter.
(2)
The Board of Appeals may employ such clerical or other assistants as may be necessary, provided that it shall not at any time incur expenses beyond the amount of appropriation made and then available for that purpose.
§ 280-93 Relief from decisions; appeals.
Any persons aggrieved or allegedly aggrieved by a decision, determination, act or refusal to act of a body or officer exercising judicial, quasi-judicial, administrative or corporate functions relating to this chapter may petition for relief to a proper court of law in accordance with the provisions of Article 78 of the Civil Practice Law and Rules of the State of New York.