A.
A Zoning Board of Appeals is hereby created. The Board of Appeals
shall consist of five members appointed by the Town Board, pursuant
to § 267 of the Town Law, for a period of five years. Incumbent
members of the Zoning Board of Appeals, whose terms have expired,
may be reappointed to said Board by action of the Town Board. The
Town Board shall designate the Chairman of the Zoning Board of Appeals.
B.
The Board of Appeals shall establish such rules and regulations as
are required by state and local laws for the transaction of its business
and may amend, modify or repeal the same from time to time.
The Board of Appeals shall have all the powers and duties prescribed
by Article 16 of the Town Law and other provisions of the Code of
the Town of Colden and this chapter, which are more particularly specified
as follows:
A.
Appellate jurisdiction.
(1)
Appeals seeking interpretation. The Zoning Board of Appeals,
hereinafter referred to as the "ZBA," shall herein decide appeals
where it is alleged that there is an error or misinterpretation in
an order, requirement, interpretation, decision or determination by
the town's Building Inspector/Code Enforcement Officer (CEO), who
is charged with the enforcement of the provisions of this chapter
of the Code of the Town of Colden. The Zoning Board of Appeals may
reverse, modify or affirm, in whole or in part, any such appealed
order, requirement, interpretation, decision or determination appealed
from and may make such order, requirement, interpretation, decision
or determination as is, in its opinion, ought to be made in strictly
applying and interpreting the provisions of this chapter of the Code
of the Town of Colden and, for such purposes, shall have all the powers
of the Building Inspector/CEO from whom the appeal is taken.
(2)
Appeals seeking variances.
(a)
The Zoning Board of Appeals shall have the power, upon an appeal
from a decision or determination of the Building Inspector/CEO, to
grant area variances. An area variance shall mean the authorization
by the Zoning Board of Appeals for the use of land in a manner which
is not allowed by the dimensional or physical requirements of this
chapter of the Code of the Town of Colden.
[1]
In making its decision, the ZBA 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 shall have an adverse
effect or impact or 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 ZBA but
shall not necessarily preclude the granting of the area variance.
[2]
The ZBA, in the granting of area variances, shall grant the
minimum variance that is 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. The ZBA, on appeal from the decision or determination
of the Building Inspector/CEO charged with the enforcement of this
chapter of the Code of the Town of Colden, shall have the power to
grant use variances. Use variance shall mean the authorization by
the ZBA for the use of land for a purpose which is otherwise not allowed
or is prohibited by this chapter.
[1]
No such use variance shall be granted by the ZBA 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 ZBA that for each
and every permitted use under this chapter for the particular district
that 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]
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;
[c]
That the requested use variance, if granted, will
not alter the essential character of the neighborhood; and
[d]
That the alleged hardship has not been self-created.
[2]
The ZBA, 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 neighborhood.
(c)
Imposition of conditions. The ZBA shall, in 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.
A.
General provisions. The Zoning Board of Appeals, consistent with
statute and local law, may adopt rules of conduct and procedure.
B.
Filing appeals. An appeal to the ZBA from any ruling of the Building
Inspector/CEO may be taken by any person aggrieved or by any officer,
department or board of the Town of Colden. Such appeal shall be taken,
within such time as prescribed by the ZBA, by filing with the Building
Inspector/CEO and with the ZBA notice of appeal, specifying the grounds
of the appeal. The Building Inspector/CEO shall promptly transmit
to the ZBA all of the papers constituting the record upon which the
action appealed from was taken.
C.
Time for appeal. Such appeal shall be taken within 60 days after
the filing of any order, requirement, decision, interpretation or
determination of the Building Inspector/CEO.
D.
Stay upon appeal. An appeal shall stay all proceedings in furtherance
of the action appealed from, unless the Building Inspector/CEO certifies
to the Board of Appeals, after 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 and by a restraining
order which may be granted by the ZBA or by a court of record on application,
a notice to the Building Inspector/CEO and on due cause shown.
E.
Meetings, witnesses and records.
(1)
Meetings of the ZBA shall be held at the call of the Chairman
of the ZBA and at such other times as the ZBA may determine. Meetings
of the ZBA shall be open to the public to the extent provided in Article
7 of the Public Officers Law.
(2)
The Chairman of the ZBA or, in his absence, the Acting Chairman
may administer oaths and compel the attendance of witnesses.
(3)
The ZBA 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. Every rule, regulation, every amendment
or repeal thereof and every order, requirement, interpretation, decision
or determination of the ZBA shall immediately be filed in the office
of the Town Clerk of the Town of Colden and shall be a public record.
F.
Hearing on appeal. The ZBA shall fix a reasonable time for the hearing
of the appeal or other matter referred to it and give public notice
of such hearing by publication in the paper of general circulation
in the town, at least five days prior to the date thereof. The cost
of sending or publishing any notices relating to such appeal shall
be borne by the appealing party and shall be paid to the ZBA prior
to the hearing of such appeal. Upon hearing, any party may appear
in person or by agent or attorney.
G.
Notice to Park Commission; planning agency. At least five days before
such hearing, the ZBA 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 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.
H.
Time of decision. The ZBA 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 ZBA.
I.
Compliance With State Environmental Quality Review Act (SEQRA). The
ZBA 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 Title VI, Part 617, of N.Y.C.R.R.
J.
Decisions of the Zoning Board of Appeals.
(1)
The concurring vote of a majority of the members of the ZBA
shall be necessary to reverse any order, requirement, interpretation,
decision or determination of the Building Inspector/CEO or to decide
in favor of the applicant on any matter upon which it is required
to pass under this chapter of the Code of the Town of Colden or to
effect any variation in this chapter.
(2)
Every decision of the ZBA shall be by resolution. Where findings
are required, the decision shall set forth each required finding,
supported by substantial evidence or other data considered by the
ZBA in each specific case, or, in the case of denial, the decision
shall include the findings which are not satisfied.
K.
Violations of conditions or restrictions. Failure to comply with
any condition or restriction prescribed by the ZBA in approving any
appeal for a variance or modification of regulations shall constitute
a violation. Such violation may constitute the basis for revocation
of a variance or modification or for penalties and other applicable
remedies.
L.
Lapse of authorization. Any variance or modification of regulations
authorized by the ZBA shall be automatically revoked, unless a building
permit conforming to all the conditions and requirements established
by the ZBA is obtained within six months of the date of the approval
of the ZBA and construction has commenced within one year of such
date of approval.
M.
Rehearing. A motion for the ZBA to hold a rehearing to review any
order, decision or determination of the Board not 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 the original
hearing. Upon such rehearing, the ZBA may reverse, modify or annual
its original order, decision or determination upon the unanimous vote
of all members then present, provided that the ZBA 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.
N.
Appeals to Supreme Court. Any person or persons, jointly or severally
aggrieved by any decision of the ZBA 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 ZBA in the office of the Town
Clerk.
