A Zoning Board of Appeals shall be maintained and operate in accordance with Article 16 of the New York State Town Law, §§ 267, 267-a and 267-b. The Zoning Board of Appeals shall have all of the authority, jurisdiction and duties granted to such Boards by §§ 267, 267-a, 267-b of the New York State Town Law and any other applicable State law, and shall fulfill its duties in accordance with those grants of authority and in accordance with Article XIII of this chapter.
The Board shall consist of five members appointed by the Town
Board for staggered terms of five calendar years.
A.
All members and alternate members of the Zoning Board of Appeals
shall be residents of the Town of Busti. No person who is a member
of the Town Board shall be eligible for membership on the Zoning Board
of Appeals.
B.
The Town Board shall appoint at least one person as an alternate
member of the Zoning Board of Appeals for a term of five calendar
years. All provisions of this chapter relating to zoning board member
training and continuing education, attendance, conflict of interest,
compensation, eligibility, vacancy in office, removal, and service
on other boards shall also apply to alternate members. The Chairperson
of the Zoning Board of Appeals may designate the alternate member
to substitute for a member who is unable to participate in deliberations
and decisions of the Zoning Board of Appeals due to conflict of interest
on an application or matter before the Board. That designation of
the alternate member shall be entered into the minutes of the initial
Zoning Board of Appeals meeting at which the substitution is made.
When so designated, the alternate member shall possess all the powers
and responsibilities of such member of the Board, shall be allowed
to participate in discussions of the proceedings, and shall be allowed
to vote. At all other times, an alternate member may participate in
discussions of the proceedings but may not vote except due to the
disqualification of a regular member and a designation of substitution
by the Chairperson.
C.
Terms of members now in office. Members now holding office for terms
which do not expire at the end of a calendar year shall, upon the
expiration of their term, hold office until the end of the year and
their successors shall then be appointed for terms which shall be
equal in years to the number of members of the Board.
D.
Each member of the Zoning Board of Appeals and each alternate member
shall complete, at a minimum, four hours of training each year designed
to enable such members to more effectively carry out their duties.
Training received by a member in excess of four hours in any one year
may be carried over by the member into succeeding years in order to
meet this requirement. Such training shall be approved by the Town
Board and may include, but not be limited to, training provided by
a municipality, regional or county planning office or commission,
state agency, statewide municipal association, college or other similar
entity. Training may be provided in a variety of formats, including
but not limited to, electronic media, video, distance learning and
traditional classroom training.
E.
If a vacancy shall occur otherwise than by expiration of term, the
Town Board shall appoint a new member for the unexpired term.
F.
The Town Board may remove, after public hearing, any member or alternate
member of the Zoning Board of Appeals for cause. Cause for removal
of a member or alternate member may include one or more of the following:
G.
The Town Board shall appoint one of the Zoning Board of Appeals members
as Chairperson to preside at all meetings and hearings and to fulfill
the authorized duties of that office. The Chairperson shall annually
appoint one of the Zoning Board of Appeals members as Vice Chairperson.
In the absence of the Chairperson, the Vice Chairperson shall act
as Chairperson and shall have all the powers of the Chairperson. The
Vice Chairperson shall have such other powers and duties as may be
provided by the rules of the Board. All meetings of the Zoning Board
of Appeals shall be held at the call of the Chairperson and at such
other times as the board may determine. The Chairperson, or in his
or her absence, the Acting Chairperson, may administer oaths to applicants,
witnesses, or others appearing before the board and may compel the
attendance of witnesses.
H.
Upon recommendation by the Zoning Board of Appeals in coordination
with the Planning Board, the Town Board shall appoint a Zoning Board
of Appeals Clerk who shall attend all proceedings of the Zoning Board
of Appeals and, upon request, the proceedings of any of its committees.
(1)
The Clerk shall keep minutes of the proceedings of the Zoning
Board of Appeals, showing the vote of each member upon every question,
or if absent or failing to vote, indicating that fact, and shall also
keep record of its examinations and other official actions.
(2)
The Town Clerk shall provide for keeping a file of all records
of the Zoning Board of Appeals, and those records shall be public
records open to inspection at reasonable times and upon reasonable
notice.
A.
Meetings, minutes, records. Meetings of the Zoning Board of Appeals
shall be open to the public except for records exempted from disclosure
under the New York State Public Officers Law (Freedom of Information
Law) or documents which are protected by attorney-client privilege.
The Zoning 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 Zoning Board of Appeals shall be filed in the office of the town
clerk within five business days and shall be a public record.
C.
Assistance to Zoning Board of Appeals. The Board shall have the authority
to call upon any department, agency or employee of the town (e.g.,
the Code Enforcement Office or Highway Department) for such assistance
as the Board deems necessary. All costs incurred by any department,
agency or employee for providing assistance in a particular proceeding
shall be borne by the applicant."
D.
Hearing appeals. Unless otherwise provided in this chapter or other
local law, generally the jurisdiction of the Zoning 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 the administrative official charged with
the enforcement of any ordinance or local law adopted pursuant to
Article 16 of New York State Town Law. For the purposes of this chapter,
the administrative official charged with enforcement shall be the
Code Enforcement Officer. The Zoning Board of Appeals shall have the
power, upon appeal from a decision or determination of the Code Enforcement
Officer, to grant use and area variances. Where a proposed special
use, site plan, or subdivision contains one or more features which
do not comply with the zoning regulations, application may be made
to the Zoning Board of Appeals for an area variance without the necessity
of a decision or determination by the Code Enforcement Officer.
E.
Filing of administrative decision and time of appeal.
(1)
Each order, requirement, decision, interpretation or determination
of the Code Enforcement Officer charged with the enforcement of the
Town of Busti Zoning Law shall be filed in the office of such Code
Enforcement Officer, within five business days from the day it is
rendered, and shall be a public record.
(2)
All appeals must be taken within 60 days after the filing of
any order, requirement, decision, interpretation or determination
of the Code Enforcement Officer by filing with the Code Enforcement
Officer and with the Zoning Board of Appeals a notice of appeal. The
notice of appeal shall: specify the grounds for such appeal; the relief
sought; identify specifically the section of the Zoning Law or other
code or law involved; describe precisely and in detail either the
interpretation claimed or the variance or other relief that is sought
and the grounds upon which it is claimed the relief should be granted.
The notice of appeal shall be accompanied by a short or full Environmental
Assessment Form as required by the State Environmental Quality Review
Act (SEQRA), by an Agricultural Data Statement as required by NY AML
25-aa,[1] and by other documents relevant to the appeal specified
by the Zoning Board of Appeals. The appellant shall also be required
to pay a filing fee at the time of the filing of the appeal in an
amount to be established by the Town Board. The cost of sending notices
relating to such appeal by certified mail, or a reasonable fee relating
thereto, shall be borne by the appealing party and shall be paid to
the Board prior to the hearing of such appeal. Upon receiving a notice
of appeal, the Code Enforcement Officer shall transmit to the Zoning
Board of Appeals all papers constituting the record upon which the
action appealed from was taken.
[1]
Editor's Note: See the NYS Agriculture and Markets Law, Art.
25-aa.
F.
Stay upon appeal. An appeal shall stay all proceedings in furtherance
of the action appealed from unless the Code Enforcement Officer determines
and certifies in writing to the Zoning Board of Appeals, after the
notice of appeal shall have been filed with the Code Enforcement Officer,
that by reason of facts stated in the certificate, a stay would, in
his or her opinion, cause imminent peril to life or property. Should
such a certification be made, the proceedings shall not be stayed
other than by a restraining order granted by the Zoning Board of appeals
or by a court of record on application, on notice to the Code Enforcement
Officer from whom the appeal is taken and on due cause shown.
G.
Public hearing. The Zoning Board of Appeals shall fix a reasonable
time for the hearing of the appeal or other matter referred to it.
The appellant and any other parties to the appeal shall be given written
notice of the hearing date and of the fact that at such hearing he
or she may appear in person or be represented by an attorney or other
agent. Said notice shall be provided at least 10 days in advance of
the hearing and shall be provided to the appellant by certified mail.
The Zoning Board of Appeals shall additionally provide notice as follows:
(1)
The Zoning Board of Appeals shall give public notice of such
public hearing by publication in an official paper of general circulation
in the town at least 10 days prior to the date thereof. The cost of
sending or publishing any notices relating to such appeal, or a reasonable
fee relating thereto, shall be borne by the appealing party and shall
be paid to the Board prior to the hearing of such appeal. Upon the
hearing, any party may appear in person, or by agent or attorney.
(2)
The Zoning Board of Appeals shall also give notice to the Chautauqua
County planning agency as required by § 239-m of the New
York State General Municipal Law. Such notice shall be in writing
sent at least 10 calendar days prior to such public hearing.
(3)
If the land affected by the appeal lies within 500 feet of the
boundary of any other municipality, the Clerk of the Zoning Board
of Appeals shall also submit at least 10 calendar days prior to the
public hearing to the municipal clerk of such other municipality or
municipalities a copy of the notice of the substance of every appeal,
together with a copy of the official notice of such public hearing.
(4)
In any application or appeal for a variance, the Clerk of the
Zoning Board of Appeals shall provide written notice of the public
hearing, along with the substance of the variance appeal or application,
to: the owners of all property abutting, or directly opposite, that
of the property affected by the appeal; and to all other owners of
property within 500 feet of the property which is the subject of the
appeal. Such notice shall be provided by certified mail at least 10
calendar days prior to the date of the hearing. Compliance with this
notification procedure shall be certified to by the Clerk.
(5)
The names and addresses of surrounding property owners to be
notified in accordance with the forgoing shall be taken from the last
completed tax roll of the Town.
(6)
Provided that there has been substantial compliance with this
provision, failure to give notice in exact conformance herewith shall
not be deemed to invalidate an action taken by the Zoning Board of
Appeals in either granting or denying a variance from a specific provision
of this chapter.
H.
Referrals and notice to Chautauqua County Planning Board and Town
of Busti Planning Board.
(1)
At least 10 days before such hearing, the Board of Appeals shall
mail notice to the Chautauqua County Planning Board as required by
§ 239-m of the New York State General Municipal Law. The
notice shall be accompanied by a full statement of the proposed action,
as defined in subdivision one of § 239-m of the General
Municipal Law. No action shall be taken by the Board of Appeals until
an advisory recommendation has been received from the County Planning
and Development Department or 30 calendar days have elapsed since
the Planning and Development Department received such full statement.
In the event that the Chautauqua County Planning Board recommends
disapproval of the requested variance or the attachments of conditions
thereto within such time period or at a later date prior to final
action by the Zoning Board of Appeals, the Board of Appeals shall
not act contrary to such recommendation except by a vote of a majority
plus one of all the members after the adoption of a resolution fully
setting forth the reasons for such contrary action. Within 30 days
after such final action, the Board of Appeals shall file a report
of the final action it has taken with the Chautauqua County Planning
Board.
(2)
The Zoning Board of Appeals shall transmit to the Town of Busti
Planning Board a copy of the appeal or application and shall request
that the Planning Board submit to the Board of Appeals its advisory
opinion on said appeal or application. The Planning Board shall submit
a report of such advisory opinion prior to the date of the public
hearing. The failure of the Planning Board to submit such report within
35 days from the date the Zoning Board of Appeals transmitted their
request for an advisory opinion with a copy of the appeal or application
to the Planning Board shall be interpreted as a favorable opinion
for the appeal or application.
I.
Compliance with State Environmental Quality Review Act. The Board
of Appeals shall comply with the provisions of the State Environmental
Quality Review Act (SEQRA) under Article 8 of the Environmental Conservation
Law and its implementing regulations as codified in Title 6, Part
617 of the New York Codes, Rules And Regulations.
J.
Time of decision. The Board of Appeals shall decide upon the appeal
within 62 days after the hearing is completed. The time within which
the Board of Appeals must render its decision may be extended by mutual
consent of the applicant and the Board.
K.
Voting requirements.
(1)
Decision of the Board. Except for the voting requirements for rehearing in Subsection M below, every motion or resolution of a Board of Appeals shall require for its adoption the affirmative vote of a majority of all the members of the Board of Appeals as fully constituted regardless of vacancies or absences. Where an action is the subject of a referral to the county planning agency the voting provisions of § 239-m of the New York State General Municipal Law and Subsection H of this section shall apply.
(2)
Default denial of appeal. In exercising its appellate jurisdiction only, if an affirmative vote of a majority of all members of the Board is not attained on a motion or resolution to grant a variance or reverse any order, requirement, decision or determination of the code enforcement official within the time allowed by Subsection J of this section, the appeal is denied. The board may amend the failed motion or resolution and vote on the amended motion or resolution within the time allowed without being subject to the rehearing process as set forth in Subsection M of this section.
L.
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.
M.
Rehearing. A motion for the Zoning Board of Appeals to hold a rehearing
to review any order, decision or determination of the board not previously
reheard 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 the Board
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.
A.
Orders, requirements, decisions, interpretations, determinations.
The Zoning Board of Appeals may reverse or affirm, wholly or partly,
or may modify the order, requirement, decision, interpretation or
determination appealed 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 Code Enforcement Officer charged
with the enforcement of such ordinance or local law, and to that end,
shall have all the powers of such Code Enforcement Officer from whose
order, requirement, decision, interpretation or determination the
appeal is taken.
B.
Use variances.
(1)
The Zoning Board of Appeals, on appeal from the decision or
determination of the Code Enforcement Officer shall have the power
to grant use variances.
(2)
No such use variance shall be granted by the Zoning 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 Zoning Board of Appeals that for each and every permitted use
under the zoning regulations for the particular district where 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.
(3)
The Zoning 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.
C.
Area variances.
(1)
The Zoning Board of Appeals shall have the power, upon an appeal
from a decision or determination of the Code Enforcement Officer,
to grant area variances as defined herein. In addition, the Zoning
Board of Appeals shall also have the power to grant area variances
which are necessary in the course of site plan, special use permit
and subdivision application for which application for such area variance
may be made directly to the Zoning Board of Appeals without the necessity
of a decision or determination of an administrative official charged
with enforcement of the zoning regulations as authorized by Town Law
§ 274-a(3) [site plan], § 274-b(3) [special use
permits] and § 277(6) [subdivisions].
(2)
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:
(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 will have an adverse effect or
impact on 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 Zoning Board of Appeals but
shall not necessarily preclude the granting of the area variance.
(3)
The Zoning 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.
D.
Imposition of conditions. The Zoning 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.
Any person or persons, jointly or severally aggrieved by any
final decision of the Zoning Board of Appeals, may apply to the New
York State Supreme Court for review by a proceeding under Article
78 of the New York Civil Practice Law and Rules. Such proceeding shall
be governed by the specific provisions of CPLR Article 78 except that
the action must be commenced as therein provided within 30 days after
the filing of the decision of the Zoning Board of Appeals in the office
of the Town Clerk.
All provisions of this Article pertaining to the Zoning Board
of Appeals shall be strictly construed. The Zoning Board of Appeals
shall act in strict conformity with all provisions of law and of this
Article and in strict compliance with all limitations contained therein,
provided however, that if the procedural requirements set forth in
this Article have been substantially observed, no applicant or appellant
shall be deemed deprived of the right of application or appeal.
All other provisions of New York State Town Law § 267-a
with regard to Zoning Board of Appeals procedure not set forth herein,
are incorporated herein by reference and shall apply to the Zoning
Board of Appeals.
