Watervliet City Zoning Code
ARTICLE XIV
Board of Appeals
§ 272-85 Appointment and organization.
A.
The City of Watervliet Board of Appeals has been established in accordance with § 81 of the General City Law.
B.
There shall be five members of the Board of Appeals who shall be residents of the City of Watervliet and shall be appointed by the Mayor for a term of three years. The term of office of the successors of such members shall be three years. Vacancies occurring in said Board by expiration of term or otherwise shall be filled in the same manner.
C.
The Mayor shall designate a member to serve as Chairperson. In the absence of the Chairperson, the Board of Appeals shall choose one of its members as acting Chairman. Such Chairman, or the party acting in his stead during his absence, may administer oaths and compel the attendance of witnesses.
D.
Alternate members of the Board of Appeals shall be appointed by the Mayor for a term of one year and may serve when a member is unable to participate due to a conflict of interest. The Chairperson of the Board of Appeals may designate an alternate to substitute for a member when such member is unable to participate on an application or matter before the Board of Appeals. When so designated, the alternate member shall possess all the powers and responsibilities of such member of the Board. Such designation shall be entered into the minutes of the initial Board of Appeals meeting at which the substitution is made. Any alternate member may be removed by the Mayor for cause and after public hearing.
E.
The presence of three members shall be necessary to constitute a quorum.
F.
Voting requirements. Except on a rehearing, every motion or resolution of a Board of Appeals shall require for its adoption the affirmative vote of a majority of all members of the Board regardless of absences or vacancies. Three members shall constitute a majority.
G.
Removal of members. Any member may be removed by the Mayor for cause and after public hearing. The standard of proof to demonstrate cause shall be a preponderance of evidence. Rules of admissibility of evidence at the hearing shall be applied and constructed to allow all statements, including but not limited to hearsay evidence. All relevant evidence not legally privileged may be received. Notice of the public hearing shall be given to the Board member at least five days prior to the hearing. The hearing shall be held in Council chambers; a judicial hearing officer (JHO) shall be selected by the Corporation Counsel for the purpose of presiding over such public hearing and for maintaining order. The JHO shall conduct the hearing, in the presence of the Mayor, and the Mayor shall make the sole decision to remove the Board member for cause, based upon a preponderance of the evidence standard. Pursuant to General City Law § 81(7-a), any Board of Appeals member may be removed for noncompliance with minimum requirements relating to meeting attendance and training as established by the Council by local law or ordinance and as set forth in § 272-85H of the City of Watervliet Code.
H.
Minimum requirements for members.
(1)
Training. Pursuant to General City Law § 81(7-a), each member of the Board of Appeals shall complete a minimum of four hours of training each year designed to enable such members to more effectively carry out their duties.
(2)
Attendance. Each Board member shall be required to attend 75% of the scheduled meetings in each calendar year. Failure to attend the required number of meetings may be grounds for removal from the Board. Failure to attend three consecutive meetings may be grounds for removal from the Board.
I.
The Board of Appeals may appoint a Secretary, who shall take minutes of all its meetings and keep its records.
J.
The Board of Appeals shall adopt from time to time such rules and regulations as it may deem necessary to carry into effect the provisions of this chapter, and all its resolutions and orders shall be in accordance therewith.
§ 272-86 Powers and duties.
The Board of Appeals shall have the following power and duties prescribed by statute (see § 81 of the General City Law as may be amended from time to time) and this chapter:
A.
Interpretation. On appeal from an order, requirement, decision or determination made by a Zoning Enforcement Officer or on request by an official, board or department of the City, to decide any one of the following questions:
(1)
The meaning of any portion of the text of this chapter or of any condition or requirement specified or made under the provisions of this chapter.
B.
Special use permits. The Board of Appeals shall review and issue special use permits in accordance with Article XII, Special Use Permits, of this chapter.
C.
Appeals. The Board of Appeals shall, in accordance with provisions of this article, hear and determine appeals from any refusal of a zoning permit, building permit or certificate of occupancy by the Building Inspector, Housing Inspector or Zoning Enforcement Officer or review any order or decision of said individuals where such order or decision is based upon the requirements of this Chapter 272, Zoning.
D.
Variances. The Board of Appeals, on appeal from the decision or determination of the Zoning Enforcement Officer, shall have the power to grant variances, as follows:
(1)
Use variances.
(a)
A use variance is an authorization by the Board of Appeals that allows a specified use in a zoning district where such specified use is not allowed. 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 that for each and every permitted use under the zoning regulations for the particular district where the property is located:
[1]
The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated 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; and
[4]
That the alleged hardship has not been self-created.
(b)
The Board, 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.
(2)
Area variances.
(a)
An area variance is an authorization by the Board of Appeals that allows a departure from the requirements of this chapter. Area variances include any departure not covered by a use variance (for example, lot size, yard sizes and number of parking spaces). In making its determination, on an area variance application the Board 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; and
[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.
(b)
The Board, 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.
(3)
Imposition of conditions. The Board of Appeals shall, in the granting of 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. Such conditions shall be consistent with the spirit and intent of this chapter and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.
§ 272-87 Procedures for appeals and variances.
A.
The powers and duties of the Board of Appeals shall be exercised in accordance with rules and procedures established by said Board. Such rules and procedures shall include the following:
(1)
The Board shall hear and decide all applications and appeals for variances and other relief from any order, requirement, decision or determination made by the Zoning Enforcement Officer or any other official or department of the City under the provisions of this chapter.
(2)
An application or appeal must be made within 60 days of the action being applied for or appealed. During such sixty-day period and during such time as an appeal or application is pending before the Board of Appeals, the Zoning Enforcement Officer shall not seek to institute any legal action or proceeding through the office of the Corporation Counsel to enforce the order, requirement or decision which is the subject of review by the Board.
(3)
In the case of an appeal, a copy of the letter denying the issuance of a permit must be included as part of the application submitted to the Board of Appeals. In other cases, documentation of the decision, order, requirement or determination which is the subject of the appeal must be submitted.
(4)
Copies of the proper application form, survey map and/or plot plan, together with all evidence, information and documents pertaining to such application or appeal, shall be filed with the Board of Appeals through the Code Enforcement Office. The survey map or plot plan submitted shall be drawn to scale, indicating the formal boundaries of the subject property, the location of any existing structures, the location of any proposed structures or building additions and the nature and extent of any landscaping improvements or site alterations. Interior floor plans, building elevations, and/or a formal site plan containing the elements may be required to advise the Board fully with reference to the application or appeal.
(5)
Within 10 business days of receipt of a complete application to the office of the Zoning Enforcement Officer, the applicant shall be notified in writing of the scheduled date of the public hearing pertaining to such appeal or application.
(6)
Not less than five days prior to the hearing date, the appellant or applicant shall publish in the official newspaper of the City a legal notice of the hearing which shall be conducted by the Board. The appellant or applicant shall also cause notice of the hearing to be mailed by regular mail to the owners of all property within a two-hundred-foot radius of the parcel which is the subject of the hearing before the Board. Such notice shall be mailed not less than five days prior to the hearing date.
(7)
The failure to give notice in exact conformance herewith shall not be deemed to invalidate any action taken by the Board of Appeals in connection with the granting of any appeal or variance, provided that due notice shall have been published and that there shall have been substantial compliance with the remaining provisions of this section.
(8)
The Board shall render a decision on any appeal or application within 62 days of the public hearing unless an extension of time is mutually agreed to by the Board and the applicant.
B.
Appeals.
(1)
Time of appeal. Such appeal shall be taken within 60 days after the filing of any order, requirement, decision, interpretation or determination of the Building Inspector charged with the enforcement of such ordinance or local law by filing with such Building Inspector and with the Board of Appeals a notice of appeal, specifying the grounds thereof and the relief sought. The Zoning Enforcement Officer from whom the appeal is taken shall transmit to the Board of Appeals all the papers constituting the record upon which the action appealed from was taken.
(2)
Stay upon appeal. An appeal to the Board of Appeals shall stay the enforcement of the ordinance or local law from which the appeal has been taken, unless the Zoning Enforcement Officer determines that the stay of enforcement would pose imminent peril to life or property.
C.
Public hearings and referrals.
(1)
For all appeals and variance applications, the Board of Appeals shall fix a reasonable time for the hearing of the appeal or other matter referred to it and shall direct the applicant to give public notice of such hearing by publication in a paper of general circulation in the City at least five business days prior to the date thereof. The cost of sending notices relating to such appeal or a reasonable fee relating thereto shall be borne by the appealing party. Upon the hearing, any party may appear in person or by agent or attorney. For a hearing on a special use permit, the public hearing must be held within 62 days from the filing of the application.
(2)
At least five days before such hearing, the Board of Appeals shall mail notices 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 § 239-m of the General Municipal Law.
(3)
Where the consideration for a special use permit involves land within 500 feet of an adjoining municipality, or from the boundary of any existing or proposed county or state park, or from the right-of-way of any existing or proposed state or county highway, or from the existing or proposed right-of-way of any stream or drainage channel owned by the county, or state or county-owned land on which a public building is situated, the application shall be referred to the Albany County Planning Board at least 30 days before the public hearing and acted upon in accord with the provisions of § 239-m of New York State General Municipal Law.
D.
Decision.
(1)
The Board of Appeals shall decide upon the appeal within 62 days after the close 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.
(2)
Filing of decision and notice. The decision of the Board of Appeals shall be filed in the office of the City Clerk within 10 business days after such decision is rendered and a copy thereof mailed to the applicant.
E.
Compliance with the State Environmental Quality Review Act. The Zoning 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.
F.
Rehearing. A motion for the Board of Appeals to hold a rehearing to review any order, decision or determination of the Board previously reviewed may be made by any member of the Board. A unanimous vote of all members of the Board then present is required for such rehearing to occur. Such rehearing is subject to the same notice provisions as an original hearing. Upon such rehearing, the Board may reverse, modify or annul its original order, decision or determination upon the unanimous vote of all members then present, provided that the Board finds that the rights vested in persons acting in good faith in reliance upon the reviewed order, decision or determination will not be prejudiced thereby.
§ 272-88 Time limit on validity of variances.
A.
A use variance granted by the Board of Appeals shall only be valid if the use for which it has been granted has been established within 12 months of the date of the approval or as otherwise established by the Board Appeals as part of the granting of the variance.
B.
An area variance granted by the Board of Appeals shall only be valid if the erection and construction of the new principal building or structure for which the variance was granted shall actually have been commenced within 12 months of the date of the approval or as otherwise established by the Board of Appeals as part of the granting of the variance.
C.
The Board of Appeals may grant one extension to the time limit for the validity of a variance of up to 12 months upon filing of an application for an extension with the Board of Appeals.
§ 272-89 Withdrawal and resubmittal of application.
All requests to withdraw an application or appeal made to the Board must be made in writing to the Board of Appeals at least 24 hours prior to the scheduled time of the public hearing at which the appeal is to be heard. Failure to make such application for withdrawal may result in the application or appeal being heard by the Board and a decision made upon such evidence as is presented to the Board.