Phelps Village City Zoning Code
ARTICLE VII
Board of Appeals
§ 175-24 Establishment; composition; appointment.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
There is hereby established a Board of Appeals having the powers authorized under the Village Law of the State of New York. Such Board shall consist of five members, to be appointed by the Mayor, with the approval of the Board of Trustees. An appointment to a vacancy occurring prior to expiration of term shall be for the remainder of the unexpired term.
§ 175-25 Organization and procedure.
Appointment of officers, meetings. The Mayor, with the approval of the Board of Trustees, shall appoint the Chairman. The Board of Appeals shall adopt rules and regulations consistent with law and this chapter. Meetings of the Board shall be held at the call of the Chairman and at such other times as the Board may determine. The Chairman, or in his or her absence, the Acting Chairman, who shall also be appointed by the Board of Trustees, may administer oaths and compel the attendance of witnesses.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
Hearings open to the public. Hearings of the Board of Appeals shall be public. The Board shall keep minutes of its proceedings, showing the action of the Board and the vote of each member upon each question, or, if absent or failing to vote, indicating such fact, and shall keep records of its inspections and other official actions, all of which shall be a public record.
Quorum, voting. The presence of three members shall constitute a quorum. The Board of Appeals shall act by resolution. The concurring vote of a majority of the Board shall be necessary to reverse any order, requirement or decision or determination of the Zoning Officer or the Planning Board or to decide in favor of the applicant any matter upon which it is required to pass under this chapter, or to grant any variance from the requirements of this chapter.
§ 175-26 Powers and duties.
Action of the Board of Appeals. In exercising its powers, 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, requirement, decision or determination as in its opinion ought to be made, in accordance with the provisions of this chapter and pursuant to § 7-712 of the Village Law.
Hear and decide appeals. The Board of Appeals shall hear and decide appeals where it is alleged that there is error or misinterpretation in any order, requirement, decision, grant or refusal made by the Zoning Officer, the Planning Board or other administrative official in the carrying out or enforcement of the provisions of this chapter or any rules or regulations pursuant thereto.
Hold public hearings. The Board of Appeals shall hold public hearings as required and as may be permitted by this chapter.
Grant variances. Upon appeal, the Board of Appeals may grant variances pursuant to the provisions of this chapter and §§ 7-712 and 7-712-b of the Village Law.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
Interpretation of chapter and boundaries. Upon appeal from a decision by the Zoning Officer, the Board of Appeals shall decide any question involving the interpretation of any provision of this chapter, and where uncertainty exists as to the boundaries of any zoning district, the Board of Appeals shall, upon written application or upon its own motion, determine the location of such boundaries of such districts as are established in this chapter and as designated on the Zoning Map of the Village of Phelps.
Refer matters to the Planning Board. The Board of Appeals shall refer to the Planning Board such matters as required by this chapter and any other pertinent matters for review and recommendations and defer any decision thereon for a period of not more than 30 days pending a report from the Planning Board. Upon failure to submit such report, the Planning Board shall be deemed to have approved the application or appeal.
Authorize temporary uses. The Board of Appeals may grant, after due notice and hearing, the temporary occupancy and use of a structure in any district for a purpose that does not conform to the district requirements, provided that such occupancy and use are truly of a temporary nature and subject to any reasonable conditions and safeguards which the Board of Appeals may impose to minimize any injurious effect upon the neighborhood or to protect contiguous property. The approval of the Board and any permit based thereon for such temporary occupancy and use shall not be granted for a period of more than 12 months and shall not be renewable more than once, and then for a period of not more than 12 months.
§ 175-27 Appeals procedure.
Appeal from Zoning Officer.
Procedure for appellant.
An appeal to the Board of Appeals from any ruling of any administrative officer or board, or both, administering any portion of this chapter, may be taken by any person aggrieved or by an officer, board or bureau of the Village affected thereby. Such appeal shall be taken by filing with the officer or board from whose action the appeal is taken and with the Board of Appeals, by filing with the Secretary thereof, a notice of appeal, specifying the grounds therefor.
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:
The name and address of the applicant, appellant.
The name and address of the owner of the district lot to be affected by such proposed change or appeal.
A brief description and location of the district lot to be affected by such proposed change or appeal.
A statement of the present zoning classification of the district lot in question, the improvements thereon and the present use thereof.
A reasonably accurate description of the present improvements and the additions or changes intended to be made under this 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.
Procedure for Zoning Officer.
The notice of appeal in any case where a permit has been granted or denied by the Zoning Officer shall be filed within 60 days after notice of such action granting or denying the permit has been mailed to the applicant. The Zoning Officer shall forthwith transmit to the 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.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
It shall be competent for the Zoning Officer to recommend to the Board of Appeals a modification or reversal of his or her action in cases where he or she believes substantial justice requires the same but where he or she has not himself or herself sufficient authority to grant the relief sought.
Procedure for the Board of Appeals. The Board of Appeals shall decide each appeal within 62 days. Upon the hearing, any party may appear in person or be represented by an agent or attorney. The Board of Appeals' decision, within five business days after the day such decision is rendered, shall be filed in the office of the Village Clerk and be a public record.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
Expiration of appeal decision. Unless otherwise specified by the Board of Appeals, 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 such authorized permit within one year from the date of authorization thereof.
Stay of proceedings. An appeal shall stay all proceedings in furtherance of the action appealed from unless the Zoning Officer certifies to the 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 or her 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 Board of Appeals or by the Supreme Court on application, on notice to the Zoning Officer and on due cause shown.
Appeal from decision of Board of Appeals. All decisions of the Board of Appeals are subject to court review in accordance with § 7-712-c of the Village Law.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
§ 175-28 Public hearing; notice.
The 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 newspaper of a notice of such hearing at least 10 days prior to the date thereof and notice to the individuals as listed below, in accordance with the requirements of the Village Law:
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
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 officer, the appellant and the person or persons, if any, who benefit from the order, requirement, regulation or determination.
When appealing for variance or special use. In case of an appeal for a variance or special use as provided for in this chapter, the following persons shall be notified: all owners of property within 500 feet of the nearest line of the property for which the variance or special use is sought, and such other property owners as the Chairman of the Board of Appeals may direct.
Adjournment of hearing. Upon the day for hearing any application or appeal, the 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.
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 Board of Appeals shall refuse to hold further hearings on the said or substantially similar application or appeal by the same applicant, his or her successor or assign for a period of one year, except and unless the 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 shall be allowable only upon a motion initiated by a member of the Board of Appeals and adopted by the unanimous vote of the members present but not less than a majority of all members.