Pendleton Town City Zoning Code
ARTICLE XI
Zoning Board of Appeals and Planning Board Administration
§ 247-74 Zoning Board of Appeals.
Appointment and organization. The Zoning Board of Appeals shall be appointed by the Town Board pursuant to the provisions of Town Law § 267. The Zoning Board of Appeals shall consist of five members. No appointment shall be valid unless the appointee is a resident of the Town. The Zoning Board of Appeals may prescribe rules for its affairs.
Powers and duties. The Zoning Board of Appeals shall have all the powers and duties prescribed by law and by this chapter, which are more particularly specified as follows:
Interpretation. To decide any question involving the interpretation of any provision of this chapter following an appeal filed by an aggrieved person from a decision made by the Code Enforcement Officer/Building Inspector or the Planning Board. This includes the determination of the exact location of any district boundary, if there is uncertainty with respect thereto.
Use variances.
The Zoning Board of Appeals, on appeal from the decision or determination of the Code Enforcement Officer/Building Inspector, shall have the power to grant use variances authorizing a use of the land otherwise prohibited by the terms of this chapter.
No use variance shall be granted by the Zoning Board of Appeals unless it finds, based on demonstration from the applicant, that:
Under applicable zoning regulations the applicant is deprived of all economic use or benefit from the property in question, which deprivation must be established by competent financial evidence;
The alleged hardship relating to the property in question is unique and does not apply to a substantial portion of the district or neighborhood;
The requested use variance, if granted, will not alter the essential character of the neighborhood and will not have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and
The alleged hardship has not been self-created.
The Zoning Board of Appeals, in granting a use variance, shall grant the minimum variance it deems necessary and adequate to address the unnecessary hardship of the applicant, and at the same time preserve and protect the character of the neighborhood and the health, safety, and welfare of the community.
Area variances.
The Zoning Board of Appeals shall have the power, upon an appeal from a determination of the Code Enforcement Officer/Building Inspector, to grant area variances from the dimensional and physical requirements of this chapter.
The Zoning Board of Appeals, in making a decision on an area variance application, shall consider 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 from such grant. The Zoning Board of Appeals shall consider:
Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance;
Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;
Whether the requested area variance is substantial;
Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and
Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision, but shall not necessarily preclude the granting of the area variance.
The Zoning Board of Appeals shall grant the minimum variance it deems necessary and adequate and at the same time preserve and protect the character of the neighborhood and the health, safety, and welfare of the community.
Conditions. The Zoning Board of Appeals shall, in the granting of either a use or area variance, have the authority to impose reasonable conditions and restrictions directly related to, and incidental to, the proposed use of the property, or the period of time such variance shall be in effect. Such conditions shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.
Expiration. Unless construction is commenced and diligently pursued within one year of the date of the granting of a variance, such variance shall become null and void, unless renewed upon application to the Zoning Board of Appeals.
Procedure.
The Zoning Board of Appeals shall act in strict accordance with procedure specified by law and by this chapter. All meetings shall be open to the public. The Zoning Board of Appeals shall not act on any variance application or interpretation request without first holding a public hearing, notice of which shall be given by publication in the official newspaper of the Town at least five days before the date of such hearing.
In addition, the Zoning Board of Appeals shall send notice by mail, phone, or personal contact to all property owners as shown on the tax rolls of the Town who reside within 250 feet of all boundary lines of the premises for which such application is made. In the absence of bad faith or deliberate intent, the failure to send such notice to less than 50% of the property owners shall not invalidate the action of the Zoning Board of Appeals.
If the applicant files with the Zoning Board of Appeals a signed consent for such interpretation request or variance application signed by more than 50% of the affected property owners or if the applicant files an affidavit stating that he has served notice by mail or in person to all such property owners, the Zoning Board of Appeals shall be relieved of the duty to mail or send notice to such property owners.
The Secretary or a member of the Zoning Board of Appeals shall keep minutes of the proceedings showing the vote of each member upon every question or, if absent or failing to vote, indicating such fact. The Zoning Board of Appeals shall keep records of its examinations and official actions, all of which shall be filed within five business days and shall be a public record.
All appeals and applications made to the Zoning Board of Appeals shall be in writing on forms prescribed by the Zoning Board of Appeals. Every appeal or application shall:
Refer to the specific provision of this chapter involved;
In the case of an interpretation request, set forth exactly the interpretation that is claimed;
In the case of a variance application, state the details of the variance that is applied for and the grounds on which it is claimed and on which the variance should be granted.
If the Zoning Board of Appeals so determines, a request for an advisory recommendation may be sent to the Planning Board.
Referral to Niagara County Planning Board.
A referral shall be made to the Niagara County Planning Board at least 10 days before holding a public hearing on a variance application affecting real property within 500 feet of the following:
A boundary of the Town;
The boundary of any existing or proposed county or state park or other recreation area;
The right-of-way of any existing or proposed county or state parkway, thruway, expressway, road or highway;
The existing or proposed right-of-way of any stream or drainage channel owned by the county (or for which the county has established channel lines);
The existing or proposed boundary of any county- or state-owned land on which a public building or institution is situated; or
Within 30 days after receipt of a full statement of such referred matter, the Niagara County Planning Board or an authorized agent of the Niagara County Planning Board shall report its recommendations to the Zoning Board of Appeals, accompanied by a full statement of the reasons for such recommendations. If the Niagara County Planning Board fails to report within such thirty-day period, or within a longer period as may have been agreed upon by it and the Zoning Board of Appeals, the Zoning Board of Appeals may act without such report. If the Niagara County Planning Board disapproves the proposal or recommends modification thereof, the Zoning Board of Appeals shall not act contrary to such disapproval or recommendation, except by a vote of a majority plus one of all the members of the Zoning Board of Appeals and after the adoption of a resolution fully setting forth the reasons for such contrary action.
Within seven days after final action on a referral by the Zoning Board of Appeals, the Zoning Board of Appeals shall file a report of the final action with the Niagara County Planning Board.
Fees. Any application for an amendment or variance filed by or on behalf of the owner(s) of the property affected shall be accompanied by a fee as described in the Town of Pendleton Fee Schedule, adopted by the Town Board by resolution, as may be amended from time to time.
§ 247-75 Planning Board
Appointment. The Town Board shall appoint a Planning Board consisting of seven members as prescribed in § 271 of Town Law. No appointment shall be valid unless the appointee is a resident of the Town. The Town Board shall appoint the Chair of the Planning Board.
Duties. The Planning Board shall have all the powers and duties prescribed by law and by this chapter, provided that none of the following provisions shall be deemed to limit any power of the Planning Board that is conferred by law. The Planning Board shall have the following duties:
To review and approve site plan applications for all development in the Town requiring such approval. See § 247-54 (Site plan review; performance and design standards).
To investigate, study, hold hearings upon, and submit reports on all appeals and matters referred to it by the Zoning Board of Appeals, Code Enforcement Officer/Building Inspector, and/or Town Board.
To submit reports within 30 days after referral to it of any appeal or other matter, unless the time shall be extended by the Code Enforcement Officer/Building Inspector or agency making the referral.
To hold monthly meetings on a regularly prescribed date and time and at such other times as the Chairman of the Planning Board may deem necessary. All meetings of the Planning Board shall be open to the public. The Secretary of the Planning Board shall keep minutes of all meetings.
To recommend changes to the Comprehensive Master Plan and Map for the development of the entire area of the Town, to be considered by the Town Board.
To review, recommend, and approve (prior to the issuance of a building permit or certificate of occupancy/certificate of compliance) site plans for mobile home parks. Such site plans shall be submitted through the Code Enforcement Officer/Building Inspector to the Planning Board at least 10 days' prior to its next scheduled meeting and shall consist of the following:
A survey drawn to scale prepared by an engineer or surveyor (registered by the State of New York) showing the exact size, shape, and dimensions of the lot to be built upon;
The exact size and location on the lot of all existing buildings and structures;
The exact size and location on the lot of the structure or building proposed to be erected, moved, repaired, or altered;
All adjacent streets or alleys with traffic flow patterns;
Areas to be utilized for storage of materials and type of architectural screen to be used; and
Such other information as may be required by the Planning Board to make its recommendation or decision.
To review and approve subdivision plans.
To review and approve site plans for commercial and industrial development.
§ 247-76 Alternate members.
Applicability. This section shall apply to the appointment, terms, functions and powers of alternate members appointed to serve on the Planning Board and on the Zoning Board of Appeals.
Declaration of policy. It is hereby determined that it is in the best interest of the Town that an alternate member position be established for the Planning Board and the Zoning Board of Appeals because of the necessity for acting expeditiously on matters pending before both boards; to enhance the ability to establish a quorum; to enable full board participation in decisions whenever possible; to attract quality board members, without preventing public service because of travel commitments, vacations, sickness, and possible conflicts; and to provide for greater flexibility in the scheduling of meetings.
Definitions. As used in this § 247-76, the following terms shall have the meanings indicated:
An individual appointed by the Town Board to serve on the Planning Board or Zoning Board of Appeals when a regular member of either board is unable to participate on an application or matter before either board, as provided herein.
An individual appointed by the Town Board to serve on the Planning Board or the Zoning Board of Appeals pursuant to the provisions of the local law or ordinance which first established such board.
The Planning Board of the Town of Pendleton as established by the Town Board by local law or ordinance, pursuant to the provisions of § 271 of Town Law.
The Zoning Board of Appeals of the Town of Pendleton as established by the Town Board by local law or ordinance, pursuant to the provisions of § 267 of Town Law.
Authorization; effect. The Town of Pendleton hereby enacts this § 247-76 to provide a process for appointing alternate members to the Planning Board and the Zoning Board of Appeals. These individuals would serve when current members of either board are absent or unable to participate on an application or matter before either board.
Substitution provisions. The alternate member shall substitute for any member of either the Planning Board or Zoning Board of Appeals in the event such member does not attend or participate because of:
Planning Board alternate members.
Alternate members of the Planning Board shall be appointed by the Town Board for a term of one year. Alternate members shall be appointed at the first Town Board meeting of January, and their tenure shall terminate on December 31 of the same year.
The alternate member of the Planning Board shall be entitled to attend all meetings of the Planning Board and to sit with the Planning Board; provided, however, that the alternate member shall only participate by substituting for a member where a regular member of the Planning Board does not participate for one of the reasons set forth in § 247-76E above. The alternate member shall receive the same compensation as regular members of the Planning Board for every meeting attended, whether or not the alternate member actually participates.
The Chairperson of the Planning Board may designate an alternate member to substitute for a member when such member is absent or unable to participate on an application or matter before the Planning Board. When so designated, the alternate member shall possess all the powers and responsibilities of such member of the Planning Board. Such designation shall be entered into the minutes of the initial Planning Board meeting at which the substitution is made.
All provisions of state law relating to Planning Board member eligibility, vacancy in office, removal, compatibility of office, and service on other boards, as well as any provisions of a local law or ordinance relating to training, continuing education, compensation, and attendance, shall also apply to alternate members.
Zoning Board of Appeals alternate members.
Alternate members of the Zoning Board of Appeals shall be appointed by the Town Board for a term of one year. Alternate members shall be appointed at the first Town Board meeting of January, and their tenure shall terminate on December 31 of the same year.
The alternate member of the Zoning Board of Appeals shall be entitled to attend all meetings of the Zoning Board of Appeals and to sit with the Zoning Board of Appeals; provided, however, that the alternate member shall only participate by substituting for a member where a regular member of the Zoning Board of Appeals does not participate for one of the reasons set forth in § 247-76E above. The alternate member shall receive the same compensation as regular members of the Zoning Board of Appeals for every meeting attended, whether or not the alternate member actually participates.
The Chairperson of the Zoning Board of Appeals may designate an alternate member to substitute for a member when such member is absent or unable to participate on an application or matter before the Zoning Board of Appeals. When so designated, the alternate member shall possess all the powers and responsibilities of such member of the Zoning Board of Appeals. Such designation shall be entered into the minutes of the initial Zoning Board of Appeals meeting at which the substitution is made.
All provisions of state law relating to Zoning Board of Appeals member eligibility, vacancy in office, removal, compatibility of office, and service on other boards, as well as any provisions of a local law or ordinance relating to training, continuing education, compensation, and attendance, shall also apply to alternate members.
Supersession of Town Law. This § 247-76 is enacted pursuant to the authority set forth in the Municipal Home Rule Law §§ 10(1)(ii)(a)(1) and 10(1)(ii)(d)(3) and Town Law §§ 267(11) and 271(15). To the extent that any provision of this § 247-76 is inconsistent with any other Town Law, including §§ 267(11) and 271(15), such law is expressly superseded by the provisions of this § 247-76. It is the intent of this § 247-76 to increase and set forth additional reasons for participation by an alternate member in decisions by the Planning Board and Zoning Board of Appeals than are set forth in Town Law §§ 267(11) and 271(15).