Pierrepont Town City Zoning Code
ARTICLE VI
Administration and Enforcement
§ 205-23 Code Enforcement Officer.
A.
Powers and duties. The authorized Code Enforcement Officer shall have the power and duty to administer and enforce the provisions of this chapter. The authorized official shall be appointed and may be removed by the Town Board and shall serve at the pleasure of the Town Board of Pierrepont.
(1)
Administration. The Code Enforcement Officer shall review all applications and if the proposal fully complies with all applicable requirements of this chapter, a permit shall be issued. If the applicant's plans do not meet 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 judgement.
(2)
Referral to the Town Planning Board. Any application for a special permit, change of zoning district or use that requires a site plan review shall be forwarded by the Code Enforcement Officer to the Chairperson of the Town Planning Board, along with all supporting information.
(3)
Referral to the Zoning Board of Appeals. An applicant, after having been denied a zoning 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 Chairperson of the ZBA of the request and forward the completed variance form along with all necessary supporting information to the ZBA.
(4)
Duties. In addition to general administration and enforcement of this chapter, the duties of the Code Enforcement Officer shall include, but are not limited to:
(a)
Review of applications and issuance of permits;
(b)
On-site inspection of construction and development to ensure compliance with permits and approved site plans;
(c)
Complaint review and follow-up;
(d)
Maintenance of all zoning records and permits open to the public during established business hours to be by the ZEO;
(e)
Provide assistance to the Planning Board or Zoning Board of Appeals when requested;
(f)
Prepare and present an annual written report to the Town Board and the Town Planning Board every January 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, mobile homes, and commercial uses and industrial uses; and
(g)
Attend meetings of the Town Board, Planning Board and the Zoning Board of Appeals when requested by the Town Supervisor or Chairperson.
§ 205-24 Planning Board.
A.
Authority. As authorized by § 71 of Town Law, there shall be a Planning Board, consisting of five or seven members holding staggered five- or seven-year terms, appointed by the Town Board. In addition, the Town Board may appoint an additional member who derives a majority of his or her income from agricultural pursuits.
B.
Officers, expenses and rules.
(1)
Officers. The Town Board 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, and a Secretary to keep minutes and record votes of the Board.
(2)
Expenses. The Town Board shall provide an appropriation to the Planning Board to cover necessary expenses, including the means to provide proper notice of and maintain a record of its meetings and public hearings. The Town Board 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.
[1]
The Planning Board shall have regularly scheduled meetings or at such other times as the Chairperson determines. The Planning Board may also advertise and hold public hearings when it desires.
[2]
Notice of all 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 the Town Clerk as 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.
C.
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 Town Board, Town 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 Town and its future growth, protection, and development, and will afford adequate facilities for housing, transportation, distribution, comfort, convenience, public health, safety and 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 Town Board.
(3)
Review subdivisions. Upon authorization of the Town Board, the Planning Board may approve, conditionally approve, or disapprove subdivision plans for the purpose of providing for the orderly and wise development of the Town and affording adequate facilities for housing, transportation, distribution, comfort, convenience, safety, health and welfare of its population.
(4)
Review site plans. Upon authorization of the Town Board, the Planning Board may review and approve, approve with modifications, or disapprove site plans according to standards set forth in this chapter.
(5)
Report on referred matters. The Planning Board may report on all matters referred to it by the Zoning Board of Appeals and the Town Board, including proposed amendments to this chapter.
(6)
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 Town as it deems desirable, providing the total expenditures of such actions shall not exceed the appropriations for its expenses.
§ 205-25 Zoning Board of Appeals (ZBA).
A.
Authority. As authorized by § 267 of Town Law, there shall be a Zoning Board of Appeals (ZBA) consisting of five members, or seven, holding staggered five-year terms appointed by the Town Board. No person who is a member of the Town Board shall be eligible for membership on the ZBA.
B.
Officers, expenses, rules.
(1)
Officers. The Town Board shall appoint a member of the ZBA to act as the Chairperson, or on failure to do so, the ZBA shall elect a Chairperson from its own members. The ZBA membership shall elect a Vice Chairperson to act in the Chairperson's absence.
(2)
Expenses. The Town Board 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 Town Board 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, minutes, records. Meetings of the Board of Appeals shall be open to the public to the extent provided in Article 7 of the Public Officers Law. The Board of Appeals shall keep minutes of its proceedings, showing the vote of each member upon every question, or if absent or failing to vote, indicating such fact, and shall also keep records of its examinations and other official actions.
(b)
Filing requirements. Every rule, regulation, every amendment or repeal thereof, and every order, requirement, decision or determination of the Board of Appeals shall immediately be filed in the office of the Town Clerk within five business days and shall be a public record.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
(c)
Assistance to Board of Appeals. The Board shall have the authority to call upon any department, agency or employee of the Town for such assistance as shall be deemed necessary and as shall be authorized by the Town Board.
(d)
Hearing appeals. Unless otherwise provided by local law or amendment, the jurisdiction of the Board of Appeals shall be appellate only and shall be limited to hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation, or determination made by an administrative office charged with the enforcement of any ordinance or local law adopted pursuant to this article. The concurring vote of a majority of the members of the Board of Appeals shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or to grant a use variance or area variance. Such appeal may be taken by any person aggrieved, or by an officer, department, board or bureau of the Town.
(e)
Time of appeal. Such appeal shall be taken within 60 days after the filing of any order, requirement, decision, interpretation, or determination of the administrative officer charged with the enforcement of such ordinance or local law by filing with such administrative official and with the Board of Appeals a notice of appeal, specifying the grounds thereof and the relief sought. The administrative official from whom the appeal is taken shall forthwith transmit to the Board of Appeals all the papers constituting the record upon which the action appealed from was taken.
(f)
Stay upon appeal. An appeal shall stay all proceedings in furtherance of the action appealed from, unless the administrative official charged with enforcement of such ordinance or local law, from whom the appeal is taken, certifies to the Board of Appeals, after the notice of appeal shall have been filed with the administrative official, 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 a court of record on application, on notice to the administrative official from whom the appeal is taken and on due cause shown.
(g)
Hearing on appeal. 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 a paper of general circulation in the Town of a notice of such hearing, at least five days prior to the date thereof.
(h)
Time of decision. The Board of Appeals shall decide upon the appeal within 62 days after the conduct of said hearing. The time within which the Board of Appeals must render its decision may be extended by mutual consent of the applicant and the Board.
(i)
Filing of decision and notice. The decision of the Board of Appeals on the appeal shall be filed in the office of the Town Clerk within five business days after the day such decision is rendered, and a copy thereof mailed to the applicant.
(j)
Notice of Park Commission or Planning Agency. At least five days before such hearing, the Board of Appeals shall mail notices thereof to the parties; to the Regional State Park Commission having jurisdiction over any state park or parkway within 500 feet of the property affected by such appeal; and to the county, metropolitan or regional planning agency, as required by § 239-m of the General Municipal Law, which notice shall be accompanied by a full statement of the matter under consideration, as defined in Subdivision 1 of § 239-m of the General Municipal Law.
(k)
Compliance with State Environmental Quality Review Act. The Board of Appeals shall comply with the provisions of the State Environmental Quality Review Act under Article 8 of the Environmental Conservation Law and its implementing regulations as codified in 6 NYCRR Part 617.
C.
Permitted action by the Board of Appeals.
(1)
Interpretations, requirements, decisions, determinations. The Board of Appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, interpretation or determination appeals from and shall make such order, requirement, decision, interpretation or determination as in its opinion ought to have been made in the matter by the administrative official charged with the enforcement of such ordinance or local law, and to that end shall have all the powers of the administrative official from whose order, requirement, or decision the appeal is taken.
(2)
Use variances.
(a)
The Board of Appeals, or appeal from the decision or determination of the administrative official charged with the enforcement of such amendment or local law, shall have the power to grant use variances, authorizing a use of the land which otherwise would not be allowed or would be prohibited by the terms of the amendment or local law.
(b)
No such use variance shall be granted by a Board of Appeals without a showing by the applicant 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:
[1]
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;
[2]
That the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood;
[3]
That the requested use variance, if granted, will not alter the essential character of the neighborhood;
[4]
That the alleged hardship has not been self-created.
(c)
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.
(3)
Area variances.
(a)
The Zoning Board of Appeals shall have the power, upon an appeal from a decision or determination of an administrative official charged with the enforcement of such amendment or local law, to grant area variances from the area or dimensional requirements of such amendment or local law.
(b)
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:
[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 applicant 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.
(c)
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.
(4)
Imposition of conditions. The Board of Appeals shall, in the granting of the 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, or the period of time such amendment shall be in effect. Such conditions shall be consistent with the spirit and intent of the zoning amendment or local law, and shall be imposed for the purpose of minimizing any adverse impact such amendment may have on the neighborhood or community.
(5)
Application. Appeals and applications made to the Zoning Board shall be in writing on forms available from 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. The Code Enforcement Officer shall transmit to the Board all the records concerning the case which is being appealed.
(6)
Expiration of variance. Unless construction is commenced and diligently pursued within nine months of the date of granting a variance, such variance shall become null and void except upon application and receipt of an extension granted by the Zoning Board of Appeals in writing.
D.
Appeal to supreme court.
(1)
Application to Supreme Court by aggrieved persons. Any person or persons, jointly or severally aggrieved by any decision of the Board of Appeals or any officer, department, board or bureau of the Town, may apply to the Supreme Court for review by a proceeding under Article 78 of the Civil Practice Law and Rules. Such proceeding shall be instituted within 30 days after the filing of a decision of the Board in the office of the Town Clerk.
(2)
Costs of appeal. Costs shall not be allowed against the Board of Appeals 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.
(3)
Reference of appeal to court. All issues in any proceeding under this section shall have preference over all other civil actions and proceedings.
(4)
Power of the court. If upon the hearing at a special term of the Supreme Court, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his or her findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.
§ 205-26 Administration and enforcement.
A.
Enforcement. The regulations of this chapter shall be enforced by the Town Board appointed Code Enforcement Officer, who shall in no case grant any permit for any building or use in violation of any provision of this chapter. The Code Enforcement Officer shall make such inspections as are necessary to carry out his or her duties.
B.
Zoning/building permit required. Any one or combination of the following shall require a zoning/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 of the provision for entrance or exit.
(3)
The introduction of any new, additional, changed, or expanded use.
(4)
Extensive site preparation for proposed development, including the excavation of a cellar, stripping of topsoil, and extensive clearing of vegetation or grading of the site.
C.
Application of zoning/building permit. An adequate number of copies for each Board that must review the proposal shall be submitted with all applications for a zoning/building permit including a plot plan drawn to scale on a minimum sheet size of 8 1/2 inches by 11 inches, showing the actual dimensions of the lot to be built upon, the exact size and location on the lot of any existing and proposed principal and accessory structures and any other information as may be necessary to determine that the proposal will conform with the provisions of this chapter.
D.
Notification of determination. The Code Enforcement Officer shall within 10 days after filing a complete and properly prepared application either issue or deny a zoning permit. If an application requires a special permit as a conditional use or a site plan review by the Town Planning Board, the Code Enforcement Officer shall refer the application to the Planning Board along with a report of any deficiencies with the proposal. If a zoning permit is denied, the Code Enforcement Officer shall note the reasons, in writing, to the applicant for such denial. In the determination, the Code Enforcement Officer shall determine:
(1)
Whether the use proposed is allowed in the zoning district;
(2)
Whether there is sufficient land under the district dimensional requirements to permit the structure; and
(3)
That all other zoning supplemental standards and limitations are complied with.
E.
Expiration of zoning/building permit. A zoning/building permit issued under this chapter shall expire and thereafter be deemed null and void unless actual construction, erection or placement of the applied-for use has been conclusively initiated within 180 days from the date the permit is issued, and written notice shall be given to the persons affected. If work described in any zoning permit has not been completed within two years from the date of issuance such permit shall expire and be cancelled by the Code Enforcement Officer, and that written notice be given to the person affected, together with notice that further work described in the cancelled permit shall not proceed unless and until a new zoning/building permit has been obtained. Extensions for commencing and completing permitted construction or alteration may be applied and, for due cause shown, granted by the Town Planning Board.
F.
Certificate of occupancy. A certificate of occupancy issued by the Code Enforcement Officer shall be deemed to authorize, and is required for, both initial occupancy and the continued occupancy and use of the building or land to which it applied. Such certificate indicates that the building or premises is in conformity with the provisions of this chapter.
(1)
Application for certificate of occupancy shall be made on forms furnished by the Code Enforcement Officer after the construction or alteration has been completed.
(2)
Notification of determination. The Code Enforcement Officer shall make or cause to have made an inspection of each building or lot for which a certificate of occupancy is required before issuing such certificate. The Code Enforcement Officer shall within 10 days after filing of a complete and properly prepared application either issue or deny a certificate of occupancy.
(a)
No certificate of occupancy shall be issued for a building or a use subject to site plan review by the Town Planning Board unless in conformance with the approved site plan.
(b)
No certificate of occupancy shall be issued for a building or a use subject to a variance granted by the Zoning Board of Appeals except in accordance with all conditions which may be prescribed by such Board.
(c)
If the proposed use is in conformity with the provisions of this chapter and all other applicable codes, laws and ordinances, a certificate of occupancy for occupancy or use shall be issued by the Code Enforcement Officer. If a certificate of occupancy is denied, the Code Enforcement Officer shall state the reasons, in writing, to the applicant.
G.
Appeal of denied permits. The Zoning Board of Appeals shall hear and decide appeals from, and review any order, decision or determination made by the Code Enforcement Officer.
(1)
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 § 205-25 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.
(2)
Court review. Any person or persons, jointly or severally aggrieved by any decision of the Planning Board, Board of Appeals, Town Board, or any officer of the Town concerning this chapter may have the decision reviewed in the manner provided by Article 78 of the Civil Practice Law and Rules, providing the proceeding is commenced within 30 days after the receipt of written notice of the decision. Costs shall not be allowed against the Town 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.
H.
Complaint and violation procedures.
(1)
Citizen complaint. Any person may file with the Code Enforcement Officer a written signed complaint against any alleged violation of this chapter.
(2)
Investigation. As directed by the Planning Board, Zoning Board of Appeals or the Town Board, or by receipt of a signed written citizen complaint, make an investigation into the alleged violation. Depending on his or her findings, the Code Enforcement Officer may issue a correction notice or a stop-work order to the responsible party as appropriate. The Code Enforcement Officer may at any time upon his or her discovery of a violation of this chapter issue a corrective notice without a complaint.
(3)
Persons liable. The owner, tenant, or occupant of any building or land or part thereof and any architect, building contractor, agent or other person who participates in, assists, directs, creates, or maintains any situation that is contrary to the requirements of this chapter may be held responsible for the violation and suffer penalties and be subject to the remedies provided.
I.
Procedures upon discovery of violations.
(1)
Written notice. If the Code Enforcement Officer finds that any provision of the zoning regulations are being violated, the person or persons responsible for such violation(s) shall be sent a written notice by certified mail indicating the nature of the violation and ordering action necessary to correct the violation(s).
(2)
The final written notice (and the initial written notice may be the final notice) shall state what action the Town's representative intends to take if the violation is not corrected and shall advise that the Code Enforcement Officer's decision that a violation exists may be appealed to the Zoning Board of Appeals.
(3)
In cases where delay would seriously threaten the affective enforcement of the zoning regulations or pose a danger to the public health, safety, or welfare, the Town may seek enforcement without prior written notice by invoking any of the penalties or remedies authorized below.
J.
Penalties and remedies for violations.
(1)
Stop-work order. The Code Enforcement Officer may issue a stop-work order to preclude the continued and further violation of this chapter or to protect the public 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 will 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 Town will be initiated to compel compliance, for injunction, or to assess such penalties as are hereafter provided for.
(2)
Correct work notice enforcement. The responsible party shall correct listed violations in a correct work notice within 30 days from the date of notification. Failure to comply with the said notice shall be reported to the Town Board within 10 days of the last date for compliance given in the notice. The Town Board may direct the Town Attorney to institute proceedings to compel compliance and correct violations to this chapter.
(3)
Permit revocation.
(a)
A zoning/building permit, sign permit or special use permit (including site plan approval) may be revoked by the Code Enforcement Officer if the permit recipient fails to develop or maintain the property in accordance with plans submitted, the requirements of the zoning regulations, or any additional requirement lawfully imposed by the permit authorizing board.
(b)
Before a permit may be revoked, notice and hearing requirements for hearings of the Zoning Board of Appeals 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 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 an zoning/building permit, sign permit, or special use permit after such permit has been revoked in accordance with this section.
(4)
Violation. Violation of this chapter or failure to comply with any of its requirements, including violation of any conditions and safeguards established in connection with grants of variances, site plan approvals or the establishment of a planned unit development, shall constitute a violation, punishable by fine of up to $100. Each week that any violation continues after notification that such violation exists shall be considered a separate offense.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
(5)
Civil penalty. Any act constituting a violation of the zoning regulations, including violation of any conditions or safeguards established in connection with grants of variances, site plan approvals or the establishment of a planned unit development shall also subject the offender to a civil penalty of not more than $300. If the offender fails to pay this penalty within 10 days after being cited for a violation, the penalty may be recovered by the Town in a civil action in the nature of debt. A civil penalty may only be appealed to the Zoning Board of Appeals if the offender was sent a final notice of violation and filed an appeal to the Zoning Board of Appeals within 30 days of its receipt. Each week that any violation continues after notification that such violation exists shall be considered a separate offense.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
(6)
Injunction. In addition to the above provided penalties and remedies, the Town Board shall reserve the rights of Town Law to take actions in the name of the Town to compel compliance with, or to restrain by injunction the violation of the zoning regulations.
K.
Judicial review. Any person or persons, jointly or severally aggrieved by any decision of the Planning Board, Board of Appeals, Town Board, or any officer of the Town concerning this chapter may have the decision reviewed in the manner provided by Article 78 of the Civil Practice Law and Rules, providing the proceedings is commenced within 30 days after the receipt of written notice of the decision. Costs shall not be allowed against the Town 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.