A.
Applicability. The Zoning Board of Appeals (ZBA) shall have the power,
on appeal from the decision or determination of any administrative
official charged with enforcement of this chapter, to reverse or affirm,
wholly or partly, or modify an order, requirement, decision, interpretation,
or determination by the granting of either use variances or area variances
as authorized by NYS Village Law. The variance procedures may not
be used to:
B.
Burden of proof. The applicant seeking the variance shall have the
burden of presenting sufficient evidence to allow the ZBA to reach
a conclusion as set forth below as well as the burden of persuasion
on those items.
C.
Application submittal. Variance applications may be initiated only
by the owner of the subject property or by the owner's authorized
agent. Applications for a zoning variance must be submitted in accordance
with Article 40 of this chapter.
D.
Public hearing required. A public hearing shall be held by the ZBA
prior to issuing a decision on any variance application.
E.
Referrals and SEQR. The ZBA shall complete the municipal referral
procedure and SEQR documentation as required by NYS Village Law for
all variance applications.
F.
Imposition of conditions. The ZBA 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 the Village Code
and shall be imposed for the purpose of minimizing any adverse impact
such variance may have on the neighborhood or community.
G.
Transferability. Zoning variance approval runs with the land and
is not affected by changes of tenancy, ownership, or management.
H.
Amendments. A request for changes in conditions of approval of a
zoning variance must be processed as a new variance application, including
the requirements for fees, notices, and hearings.
A.
Authorization. A use variance authorizes the use of land for a purpose
that is otherwise not allowed or prohibited by this chapter. A finding
of unnecessary hardship is required to properly grant a use variance.
B.
Conditions of approval. The ZBA shall not grant a use variance without
the applicant having shown that applicable zoning regulations and
restrictions have caused unnecessary hardship. In order to prove such
unnecessary hardship, per NYS Village Law, the applicant shall demonstrate
to the ZBA that for each and every permitted use under the zoning
regulations for the particular district where the property is located
the following conditions exist:
(1)
The applicant cannot realize a reasonable return, provided that
lack of return is substantial as demonstrated by competent financial
evidence;
(2)
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)
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.
C.
Minimum variance allowable. 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 proved 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.
A.
Authorization. An area variance authorizes the use of land that is
not allowed by the dimensional or physical requirements set forth
in this chapter. An area variance is one that does not involve a use
that is otherwise prohibited by this chapter. A finding of practical
difficulty is required to properly grant an area variance.
B.
Considerations of approval. In making its determination, 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 the following
as required by NYS Village Law:
(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 in relation
to the requirement;
(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.
C.
Minimum variance allowable. The ZBA, 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.
A.
Applicability. The ZBA is authorized to hear and decide appeals where
it is alleged there has been an error in interpretation of any zoning
code provisions or in any order, requirement, decision, or determination
made by the CEO or other administrative officials under the Village
Code.
B.
Right to appeal. Appeals may be filed by any person aggrieved by
an administrative decision of the CEO or other agent duly designated
to the administration and enforcement of this chapter. The ZBA is
authorized to make determinations about whether individuals filing
appeals are "aggrieved by the decision or action."
C.
Application submittal.
(1)
Appeal applications must be submitted in accordance with Article
40 of this chapter.
(2)
Appeal applications must be filed within 30 days of the date
of the decision being appealed.
(3)
Every appeal application shall refer to the specific provision
of this chapter involved and shall exactly set forth the interpretation
that is claimed.
D.
Stay upon appeal. An appeal shall stay all proceedings in furtherance
of the appealed action, unless the CEO certifies to the ZBA a stay
would, in his or her opinion, cause imminent peril to life or property.
Then the proceedings shall not be stayed otherwise than by a restraining
order granted by the ZBA or by a court of record on application, to
the CEO.
E.
Record of decision. Upon receipt of a complete appeal application,
the CEO must transmit to the ZBA all papers constituting the record
upon which the action appealed is taken.
F.
Public hearing required. A public hearing shall be held by the ZBA
prior to issuing a decision on any appeal.
G.
Referrals and SEQR. The ZBA shall complete the municipal referral
procedure and SEQR documentation as required by NYS Village Law for
all appeals.
H.
Final decision.
(1)
In exercising the appeal power, the ZBA has all the powers of
the village official or agent from whom the appeal is taken.
(2)
The ZBA may reverse the appeal or affirm the appeal, in whole
or in part, or modify the decision being appealed.
(3)
In acting on the appeal, the ZBA must grant to the decision
or action a presumption of correctness, placing the burden of persuasion
of error on the appellant.
(4)
A motion for the ZBA to hold a rehearing to review any order,
decision or determination not previously reheard, may be made by any
member of the ZBA. A unanimous vote of all members of the ZBA 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 ZBA may reverse, modify or annul its original order,
decision or determination upon the unanimous vote of all members then
present, provided the ZBA finds that the rights vested in persons
acting in good faith in reliance upon the reheard order, decision
or determination will not be prejudiced thereby.
I.
Article 78 proceeding.
(1)
Any person or persons jointly or severally aggrieved by any
decision of the ZBA or other such review board charged with the administration
and enforcement of this chapter may apply to the NYS Supreme Court
for review by a proceeding under Article 78 of the Civil Practice
Laws and Rules.
(2)
Such proceeding shall be instituted within 30 days after the
filing of the review board's decision in the office of the Village
Clerk.
(3)
Costs shall not be charged to the Village unless it shall appear
to the Court that it acted in gross negligence or in bad faith or
with malice in making its decision.
