City of Rochester, NY Procedures

The purpose of a pre-application meeting, with City and/or other agency staff, is to inform the applicant of applicable procedures, submission requirements, development standards and other pertinent matters before the applicant finalizes the development proposal. Prior to the submission of an application, a pre-application meeting may be requested by the applicant or required by the Manager of Zoning; the applicant is required to attend the pre-application meeting.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

City and/or agency staff opinions presented during a pre-application meeting are advisory/informational only and do not represent a commitment on behalf of the City or represented agency regarding the acceptability of the development proposal.

Neighborhood meetings. If a pre-application meeting is required, notice shall be sent to the official neighborhood contacts of potentially impacted neighborhoods. An official neighborhood contact, within 10 business days of the notice being sent, may request a meeting with City staff and the applicant.

Application forms and application filing fees. Applications required under this article shall be submitted in a form and in such numbers as required by the Manager of Zoning. Applications shall be accompanied by the fee established by the City Council from time to time. Fees are not required with applications submitted by the City Council, Planning Commission, or City agencies. Application fees are nonrefundable, unless otherwise expressly stated. The Manager of Zoning shall have the authority to waive application requirements that are not applicable to a specific project.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Application intake meeting. The purpose of an application intake meeting is to allow a review to determine whether the application meets the minimum requirements for acceptance of the application. The intake meeting shall be made by appointment with appropriate zoning staff. Application intake meetings shall be required for all applications unless waived by the Manager of Zoning.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Application completeness.

An application shall be considered complete if it is submitted in the required form, includes all mandatory information, including all exhibits and SEQRA (State Environmental Quality Review Act) environmental determination, if applicable, and is accompanied by the applicable fee.

If an application is determined to be incomplete, the official responsible for accepting the application shall provide written notice to the applicant along with an explanation of the application's deficiencies. No further processing of the application shall occur and no public hearings shall be scheduled until the deficiencies are corrected. If the deficiencies are not corrected by the applicant within 30 days, the application shall be considered withdrawn and the application shall be returned to the applicant.

Referral to Monroe County Department of Planning and Development. Applications subject to New York State General Municipal Law § 239-m shall be referred to the Department of Planning and Development at Monroe County in accordance with the provisions of General Municipal Law § 239-m. In addition, the Manager of Zoning shall refer a copy of applications in the Airport Overlay District to the Department of Planning and Development of Monroe County.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Matters not requiring informational meetings or public hearings.

[Amended 7-27-2004 by Ord. No. 2004-240]

Public notice shall be made to the official neighborhood contacts and/or adjacent property owners as follows:

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Within 10 business days of receipt of the complete application, the Manager of Zoning shall notify all property owners, both within and outside the municipal boundaries of the City of Rochester, within 100 feet from the property line and the official neighborhood contacts. At a minimum, the owners of 15 properties shall receive such notification. Mailing shall be required for:

Certificate of nonconformity;

Major site plan; and

Administrative adjustments.

Within 10 business days of the date of notification, all property owners and the official neighborhood contacts shall submit any written documentation to the Manager of Zoning.

For minor site plans and interpretations pursuant to § 120-191, only the official neighborhood contact shall be notified.

Informational meetings.

[Amended 7-27-2004 by Ord. No. 2004-240; 2-14-2006 by Ord. No. 2006-22]

Informational meetings shall be required for the following:

Planned development district designation;

Comprehensive Plan, Official Map, Zoning Map or zoning text amendments; and

[Amended 9-21-2010 by Ord. No. 2010-323]

Preservation district designation (by Planning Commission).

Notification.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Mailed notice. Within 10 business days of receipt of the complete application, the Manager of Zoning shall notify all property owners, both within and outside the municipal boundaries of the City of Rochester, within 600 feet from the property line and the official neighborhood contacts. For applications for Comprehensive Plan or text amendments, notice shall only be made to the official neighborhood contact.

[Amended 8-15-2017 by Ord. No. 2017-257]

Published notice. The Manager of Zoning shall cause notice for such meetings to be placed in an official newspaper or a newspaper of general circulation in the City at least once, not more than 30 nor less than 10 business days before the date of the meeting.

Public hearings.

Public hearings shall be required for the following:

Certificate of appropriateness approved by the Preservation Board;

Special permit;

Planned development district designation (by City Council);

Cluster development;

Adoption of neighborhood design guidelines;

Comprehensive Plan, Official Map or Zoning Map or zoning text amendments (by City Council);

[Amended 9-21-2010 by Ord. No. 2010-323]

Landmark designation;

Certificate of economic hardship;

Preservation district designation (by City Council);

Variances;

Appeals of administrative decisions;

(l)

Site plan referrals; and

(m)

Subdivisions per Chapter A128.

[Added 9-21-2010 by Ord. No. 2010-323]

Setting hearing. For all matters properly brought before the Zoning Board of Appeals, the Planning Commission or the Preservation Board for which a public hearing is required by this chapter, the body charged with conducting the hearing shall, upon receipt of a completed application, select a reasonable time and place for such hearing; provided, however, that such time shall be not later than 62 days following the submission of the subject application, unless the applicant shall agree to some later time.

Notification.

Mailed notice.

The Manager of Zoning shall be required to mail the appropriate notices for public hearings to property owners, both within and outside the municipal boundaries of the City of Rochester, within 600 feet of the property line. Where notice by mail is required, it shall be given at least 20 days in advance of the hearing date by regular United States mail, except that notice to City agencies or officials may be by interdepartmental memorandum.

[Amended 6-17-2003 by Ord. No. 2003-183; 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170; 8-15-2017 by Ord. No. 2017-257]

Where mailed notice is required, it shall be sent to the applicant, the owner of any property subject of the application as shown in the records of the office of the City Treasurer, the Department of Neighborhood and Business Development, the Official Neighborhood Contact and to any other person or persons deemed by the Manager of Zoning to have a direct interest in the matter of the hearing.

[Amended 6-17-2003 by Ord. No. 2003-183; 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

The time and manner for mailed notices for public hearings to be held by the City Council shall be determined by the City Clerk.

Subscription notice. Any entity which shall have filed a written request and appropriate annual fee shall, within 45 days of said written request, subscribe to receive preliminary agendas associated with public hearings from the Division of Zoning. Such subscription shall automatically expire on December 31 of the year in which it is made unless a written request for renewal, accompanied by the annual fee, is submitted prior to such date. In giving any notice pursuant to this subsection, the Manager of Zoning shall be entitled to rely on names and addresses as shown in his or her records.

[Amended 2-14-2006 by Ord. No. 2006-22; 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Published notice. Where published notice is required, it shall be placed in an official newspaper or a newspaper of general circulation in the City at least once, not more than 30 nor less than 20 days before the date of the hearing.

The published notice shall include:

The general location of land that is the subject of the application;

The legal description or street address;

The description of the application;

The current zoning district;

The time, date and location of the public hearing;

[f]

A phone number to contact the City; and

[g]

A statement that interested parties may appear at the public hearing.

The time and manner of published notice for public hearings held by City Council shall be determined by the City Clerk.

Posted notice.

For hearings related to a certificate of appropriateness, cluster development, special permit, landmark designation, variances or property-specific map amendment, a sign shall be posted on the subject property. Other posted notices for applications involving multi-properties shall be placed in locations at the discretion of the Manager of Zoning.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Such sign shall be issued by the Manager of Zoning to the applicant for posting at the time a completed application is filed, shall be posted on the property, facing the street, at least 20 days prior to the date set for a hearing on the application, and shall be removed from the property by the applicant following, but not before, the conclusion of the hearing.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Where such posting is required, compliance with posting requirements shall be verified by the applicant prior to or at the hearing in the form of an affidavit or in testimony under oath.

[Amended 7-27-2004 by Ord. No. 2004-240]

Posted notice shall be at least six square feet in area and shall bear on its face:

The hearing body; and

A phone number to contact the City.

Text amendments may be exempt from this requirement.

Constructive notice. Minor defects in notice shall not impair the notice or invalidate proceedings pursuant to the notice if a bona fide attempt has been made to comply with applicable notice requirements.

Pre-hearing examination. At any time following the giving of notice as required above, and upon reasonable request, any person may examine the application and all other documents on file with the Manager of Zoning pertaining to the matter subject to such notice. In addition, any person shall be entitled to copies of such application and documents upon reasonable request and payment of a fee as established from time to time by the City Council to cover the cost of such copies.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Right to submit written statements. Any person may at any time prior to the commencement of a hearing, or within such time as may be allowed by the hearing body following such hearing, submit written and signed statements in support of or in opposition to the application being heard.

Summary of notice required. The following summarizes the notification procedures for actions in the City of Rochester.

[Amended 6-20-2017 by Ord. No. 2017-170]

Summary of Notice
Action	Published	Posted	Mailed (600 ft)	Mailed (100 ft)	Official Neighbor- hood Contact	Inform- ational Meetings	Public Hearing
PD District designation	X	X	X		X	X	X
Preservation district designation	X	X	X		X	X	X
Zoning Map*, zoning text or Comprehensive Plan amendment	X	X	X		X	X	X
Administrative adjustment				X	X
Certificate of nonconformity				X	X
Interpretations					X
Site plan Minor Major				X	X X
Cluster development	X	X	X		X		X
Special permit	X	X	X		X		X
Neighborhood design guidelines**	X	X	X		X		X
Landmark designation	X	X	X		X		X
Certificate of appropriateness except those approved by the Manager	X	X	X		X		X
Appeal of administrative decisions**	X		X		X		X
Variance	X	X	X		X		X
Site plan referral	X		X		X		X

Where applicable

All properties impacted

Adjourned meetings, special meetings, committee meetings and hearings notification. Notification for adjourned meetings, special meetings and hearings shall follow the process outlined in this section unless an adjourned meeting, committee meeting or hearing date was announced at a prior meeting or hearing.

Successive applications.

Whenever any application, appeal or other request filed pursuant to this chapter has been finally denied on its merits or approved subject to specified conditions, a second application, appeal or other request seeking essentially the same relief or a modification of such conditions shall not be brought within two years unless, in the opinion of the review authority, or, in the case of decisions of the Zoning Board, Preservation Board and Planning Commission, in the unanimous opinion of all members present on the board before which it is brought, one of the following standards has been met:

[Amended 6-17-2003 by Ord. No. 2003-183; 12-20-2005 by Ord. No. 2005-394]

There is a substantial change in circumstances relevant to the issues and/or facts considered during review of the application that might reasonably affect the decisionmaking body's application of the relevant review standards to the development proposed in the application;

New or additional information is available that was not available at the time of the review that might reasonably affect the decisionmaking body's application of the relevant review standards to the development proposed;

A new application is proposed to be submitted that is materially different (e.g., proposes new uses, or a substantial decrease in proposed densities and intensities) from the prior application; or

The final decision on the application was based on a material mistake of fact or mistake of law.

Any such second application shall include a detailed statement of grounds justifying consideration of such application.

§ 120-189 Certificate of zoning compliance.

Authority. The Manager of Zoning, or a designee, shall have authority to issue certificates of zoning compliance but only in accordance with the provisions of this section.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Purpose. The certificate of zoning compliance provides a procedure for reviewing plans for compliance with this chapter and a means for evidencing such compliance. Further, it serves as an adjunct to, and thus must be filed prior to or with, all applications filed pursuant to this chapter with respect to a specific use or development proposal.

Certificate issued in conflict is void. Any certificate of zoning compliance issued in conflict with the provisions of this chapter shall be null and void.

Certificate of zoning compliance required.

[Amended 7-27-2004 by Ord. No. 2004-240]

A certificate of zoning compliance shall be required for the following purposes:

Construction, reconstruction, exterior remodeling, exterior alteration or moving of any structure that requires a building permit;

Occupation or use of land vacant on the effective date of this chapter, except for the raising of crops;

Home occupations, subject to the additional requirements for specified uses in § 120-139;

Temporary uses, subject to the additional requirements for specified uses in § 120-149;

Improvement of land preliminary to any use of such land;

Any change in the use or occupancy of any land or structure, whether or not construction, reconstruction, remodeling, alteration or moving is involved;

Alteration to the exterior of a designated City landmark or alterations to significant architectural features as outlined in § 120-158 on designated buildings of historic value;

All substantial dredging, filling, excavating or grading or any man-made change to improved or unimproved real estate of any land located within a flood hazard area as delineated on the Federal Insurance Administration Flood Hazard Boundary Maps;

Site preparation for a use that does not include or require a building;

Installation or replacement of a driveway connecting property to the public right-of-way; or

Any exterior improvements to buildings or sites in a preservation district or village center district.

(l)

Installation, construction or replacement of fences and terraces.

[Added 12-20-2005 by Ord. No. 2005-394]

In any case where a certificate of zoning compliance is not required under this chapter, the Manager of Zoning shall, on written request, issue a notice of such fact.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Procedure.

[Amended 6-17-2003 by Ord. No. 2003-183; 2-14-2006 by Ord. No. 2006-22; 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Application. Applications for certificates of zoning compliance shall be submitted in a form and in such numbers as required by the Manager of Zoning. A nonrefundable fee, as may be established from time to time by the City Council to help defray administrative costs, shall accompany each application. Applications shall be in such form and contain such information and documentation as shall be prescribed from time to time by the Manager of Zoning, but shall in all instances contain at least the following information or documentation unless any such information or document is expressly waived by the Manager of Zoning as not relevant or necessary to determine that all provisions of this chapter have been met in a particular case:

The applicant's name, address and interest in the subject property.

The owner's name and address, if different from the applicant. and the owner's signed consent to the filing of this application.

The address or location of the subject property.

The present use and zoning classification of the subject property.

The proposed use or uses of the subject property and a description of the construction, reconstruction, remodeling, alteration or moving.

The certificate of a registered architect or licensed professional engineer or of an owner-designer that the proposed construction, reconstruction, remodeling, alteration or moving complies with all the provisions of this chapter.

A site plan, drawn to a scale of not less than 50 feet to the inch, on one or more sheets, illustrating the proposed construction, reconstruction, remodeling, alteration or moving and including the following:

Property boundary lines and dimensions of the property and any significant topographic or physical features of the property.

The location. size, use and arrangement, including height, in stories and feet where relevant, floor area ratio, total floor area and lot and building coverage; and the number and size of dwelling units, by number of bedrooms, of proposed buildings and existing buildings.

Minimum yard dimensions and, where relevant, the relation of yard dimensions to the height of any building or structure.

The location, dimensions, number and slope and gradient of all driveways, entrances, curb cuts, parking stalls, loading spaces and access aisles; the total lot coverage of all parking, loading, driveway and aisle areas; and, where more than 10 parking and loading spaces are required, the location of area for snow storage or an indication of an alternative disposal method.

The location, size, arrangement and sketch showing content and layout of all outdoor signs.

The location and height of fences or screen plantings and the type or kind of building materials or plantings to be used for fencing or screening.

The location, designation and total area of all usable open space.

Any information necessary to determine that conditions imposed by any special approval granted pursuant to this chapter have been complied with.

Scaled floor plans.

Scaled elevations.

Such other and further information and documentation as the Manager of Zoning may deem necessary or appropriate to a full and proper consideration and disposition of the particular application.

Action by Manager of Zoning. Within 10 business days following receipt of a completed application, the Manager of Zoning shall cause the application and related submissions to be reviewed for compliance with this chapter and shall inform the applicant whether the application has been approved, approved with conditions or denied.

Approval or denial.

The Manager of Zoning shall issue a final decision for each certificate of zoning compliance. The decision of the Manager, which shall be based on the findings set forth, shall be final and shall:

Approve the application;

Approve the application with conditions; or

Deny the application.

In any case where an application is approved, the Manager of Zoning shall issue a certificate of zoning compliance. Approval of the certificate of zoning compliance will ensure that all provisions of this chapter are met. The issuance of a certificate of zoning compliance shall not authorize the establishment or expansion of any use nor the development, construction, relocation, alteration or moving of any building or structure but shall merely authorize the preparation, filing and processing of applications for any additional permits and approvals which may be required by the codes and ordinances of the City, including but not limited to a building permit, a certificate of occupancy and subdivision approval.

In any case where an application is denied, the Manager of Zoning shall state the specific reasons for denial and shall cite the specific provisions of this chapter upon which such denial is based. If relief from such denial would be available, the Manager of Zoning shall so state and shall refer the applicant to the appropriate provisions of this chapter. The Manager of Zoning shall also inform the applicant of his or her appeal rights under this chapter.

Limitation on certificates of zoning compliance. A certificate of zoning compliance shall become null and void six months after the date on which it was issued unless a building permit is obtained and maintained. In the case where a building permit is not required, work must commence within six months from date of issuance.

Appeals.

Appeals of a decision by the Manager of Zoning on a certificate of zoning compliance application shall be taken to the Zoning Board of Appeals within 60 days of the decision.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

An appeal from any final decision of the Zoning Board of Appeals as to any matter regarding the certificate of zoning compliance may be taken within 30 days of the filing of such decision by any person aggrieved or by any authorized officer, department, bureau, board or commission of the City in accordance with Article 78 of the New York Civil Practice Law and Rules.

§ 120-190 Procedures approved by the City Council.

Planned development district designation. See Article XVII of this chapter.

[Amended 6-14-2005 by Ord. No. 2005-161]

Preservation district designation.

Authority. The City Council shall have the authority, in accordance with the procedures and standards hereinafter established, to create and to designate the boundaries of preservation districts within the City and to amend such boundaries or rescind such designations as from time to time shall seem appropriate. Such preservation districts may include one or more zoning districts established pursuant to this chapter.

Purpose. Preservation districts may be created in furtherance of the following public purposes, which are hereby found to be in the interest of the health, prosperity and welfare of the City and its residents:

To effect and accomplish the protection, enhancement, perpetuation and use of improvements and areas of special character or special historic or aesthetic interest or value which represent or reflect elements of the City's cultural, social, economic, political and architectural history.

To safeguard the City's historic, aesthetic and cultural heritage as embodied and reflected in such improvements and areas.

To stabilize and improve property values in such areas.

To foster civic pride in the beauty and noble accomplishments of the past.

To protect and enhance the City's attractions to tourists and visitors and the support and stimulus to business and industry thereby provided.

To strengthen the economy of the City.

To promote the use of historic districts and landmarks for the education, pleasure and welfare of the people of the City.

Preservation district standards. No area of the City shall be designated a preservation district pursuant to the provisions of this section unless such area shall constitute a distinct section of the City and shall have the potential to provide cultural and civic benefits for the people of the City by reason of the prevalence of at least two of the following factors:

The presence of special historical interest relating to local, state or national history.

The presence of special character or aesthetic interest or value caused by the development pattern of the area or by natural, landscaping or topographical features of the area.

The presence of one or more periods or styles of architecture typical of one or more eras in the history of the City that gives the area a distinct character.

The concentration of indigenous examples of local architecture which have not been significantly altered from their original design and which have a uniform scale and derive special value from the repetition of scale and form.

The presence of one or more distinguished buildings of high architectural quality and historic interest.

Procedures.

Proposal by the City. A preservation district, or the amendment of the boundaries of such a district, may be proposed by either the City Council, the Planning Commission or the Preservation Board by transmitting such proposal, together with such supporting materials as may seem appropriate, to the Manager of Zoning for processing in accordance with the provisions of this section.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Application by owner. When a proposed district is initiated by an owner of, or other person having a contractual interest in, real estate to be affected by the proposed designation, or by the owners of 50% or more of the frontage of real estate to be affected by the proposed designation, the application for such designation shall be filed with the Manager of Zoning. The application shall be in a form and in such numbers as required by the Manager of Zoning. A nonrefundable fee, as established from time to time by the City Council to help defray administrative costs, shall accompany each application. The Manager of Zoning may also request such other and further information and documentation deemed necessary or appropriate to a full and proper consideration and disposition of the particular application.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Review by Preservation Board and Planning Commission. All applications for preservation districts shall be referred to the Preservation Board and Planning Commission for simultaneous review and recommendations.

Action by Preservation Board.

An informational meeting shall be held by the Preservation Board for all preservation district designation applications.

Within 62 days of receiving the preservation district application, the Preservation Board shall make a recommendation to the City Council on the proposed preservation district.

The failure of the Preservation Board to act within 62 days shall be deemed a recommendation for the approval of the proposed amendment as submitted.

Action by Planning Commission.

The Planning Commission shall conduct an informational meeting on applications for preservation district designation.

The Planning Commission shall consider:

Potential impact of the designation upon the City's Comprehensive Plan and overall planning program of the City.

Whether the proposed designation would have an adverse impact upon the growth and development of the City.

Within 62 days of receiving the preservation district application, the Planning Commission shall make a recommendation to the City Council on the proposed preservation district.

The failure of the Planning Commission to act within 62 days shall be deemed a recommendation for the approval of the proposed amendment as submitted.

Action by City Council.

Within 40 days of the receipt by the City Council of the Preservation Board's and Planning Commission's recommendations, or their failure to act as provided above, the City Council shall conduct a public hearing and either approve the application by ordinance duly enacted, adopt the proposed amendment, with or without conditions, or deny the application.

In the event a protest against a proposed amendment is presented to the City Clerk no later than 24 hours before the City Council is scheduled to consider the amendment, duly signed and acknowledged by the owners of 20% or more of the area to be affected by the proposed amendment or by the owners of 20% or more of the area of the land immediately adjacent to the subject site, or immediately across a street and extending 100 feet from the subject site, such amendment shall not be adopted except by a three-fourths vote of the City Council.

Within five business days of such action, the City Clerk shall mail notice thereof to all parties entitled thereto as provided by § 120-188. In the event that the City Council, prior to the expiration of the time limit herein specified for its refusal or adoption of the proposed amendment, requests further information from the Manager, the time limit for its refusal or adoption of the proposed amendment shall be extended to 70 days. The failure of the City Council to act within the time limit herein specified shall be deemed a refusal of the amendment.

[Amended 6-20-2017 by Ord. No. 2017-170]

Publication and recording. Immediately upon the adoption of any ordinance pursuant to this section, the Manager of Zoning shall cause such ordinance to be published in an official newspaper or a newspaper of general circulation in the City and shall cause such district to be recorded on the Zoning Map.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Amendment and rescission of preservation district. Any preservation district designated hereunder may be amended or rescinded in the same manner as herein provided for the designation of such district.

Zoning text, Zoning Map, Official Map or Comprehensive Plan amendment.

[Amended 6-16-2009 by Ord. No. 2009-179; 11-15-2011 by Ord. No. 2011-350]

Authority. This chapter, the Zoning District Map, the Official Map and the Comprehensive Plan may be amended from time to time by ordinance duly enacted by the City Council; provided, however, that no such amendment shall be enacted except in accordance with the procedures set out in this section.

Purpose. The amendment process herein established is intended to provide a means for making changes to the text of this chapter, the Zoning District Map, the Official Map and the Comprehensive Plan that have more or less general significance or application. It is not intended to relieve particular hardships nor to confer special privileges or rights of a particular property owner but is intended as a tool to adjust the provisions of this chapter, the Zoning District Map, the Official Map and the Comprehensive Plan in light of changing, newly discovered or newly identified conditions, situations or knowledge.

Procedure.

Proposal by City. Amendments may be proposed by either the Mayor, the City Council, the Planning Commission, the Zoning Board of Appeals or the Preservation Board by transmitting such proposal, together with such supporting materials as may seem appropriate, to the Manager of Zoning for processing in accordance with the provisions of this section. Minor text amendments addressing spelling, grammar, numerical references and other minor modifications which are not substantive may be proposed by the Manager of Zoning and submitted directly to City Council for approval.

[Amended 6-20-2017 by Ord. No. 2017-170]

Application by owner. A proposed amendment may be initiated by an owner of, or other person having a contractual interest in, real estate to be affected by the proposed amendment or by the owners of 50% or more of the frontage of real estate to be affected by the proposed amendment. The application for such amendment, addressed to the City Council, shall be filed with the Manager of Zoning. The application shall be in a form and in such numbers as required by the Manager of Zoning. A nonrefundable fee, as established from time to time by the City Council to help defray administrative costs, shall accompany each application. The Manager of Zoning may also request such other and further information and documentation deemed necessary or appropriate to a full and proper consideration and disposition of the particular application.

[Amended 6-20-2017 by Ord. No. 2017-170]

Action by Planning Commission.

An informational meeting shall be set, advertised and conducted by the Planning Commission. Within 30 days following the conclusion of the informational meeting, the Planning Commission shall make a recommendation to approve, approve subject to conditions or deny the application. The failure of the Planning Commission to act within 30 days following the conclusion of the informational hearing shall be deemed a recommendation for the approval of the proposed amendment as submitted. The recommendation of the Planning Commission shall be transmitted to the City Clerk for City Council action.

In making recommendations regarding amendments to the text of the Zoning Ordinance or to the Zoning Map, the Planning Commission shall consider and make findings on the following matters regarding the proposed amendment:

Consistency with the City's Comprehensive Plan and any other adopted special area plans.

Compatibility with the present zoning and conforming uses of nearby property and with the character of the neighborhood.

Suitability of uses proposed by the zoning amendment for the property affected by the amendment.

Availability of public services and infrastructure generally suitable and adequate for uses allowed within the proposed district.

Action by City Council.

Within 40 days of the receipt by the City Clerk of the Planning Commission's recommendation, or its failure to act as provided above, the City Council shall conduct a public hearing and either approve the application by ordinance duly enacted or adopt the proposed amendment, with or without conditions, or deny the application.

The City Clerk shall mail notice thereof to all parties entitled thereto as provided by § 120-188. In the event that the City Council, prior to the expiration of the time limit herein specified for its refusal or adoption of the proposed amendment, requests further information from the Manager, the time limit for its refusal or adoption of the proposed amendment shall be extended to 120 days. The failure of the City Council to act within the time limit herein specified shall be deemed a refusal of the amendment.

[Amended 6-20-2017 by Ord. No. 2017-170]

Minor text amendments as outlined above shall be handled in the same manner as all other proposed amendments except no recommendation from the Planning Commission shall be required.

§ 120-191 Procedures approved by the Manager of Zoning.

[Amended 6-17-2003 by Ord. No. 2003-183; 7-27-2004 by Ord. No. 2004-240; 12-20-2005 by Ord. No. 2005-394; 2-14-2006 by Ord. No. 2006-22; 11-25-2008 by Ord. No. 2008-384; 6-16-2009 by Ord. No. 2009-179; 12-15-2009 by Ord. No. 2009-409; 9-21-2010 by Ord. No. 2010-323; 7-19-2011 by Ord. No. 2011-247; 9-19-2012 by Ord. No. 2012-363; 7-14-2015 by Ord. No. 2015-228; 6-20-2017 by Ord. No. 2017-170]

Administrative adjustment.

Authority. The Manager of Zoning, or a designee, shall have authority to issue administrative adjustments, but only in accordance with the provisions of this section.

Purpose. For purposes of this section, carrying out the strict letter of a provision of this chapter may cause a practical difficulty and an administrative adjustment is permitted to alleviate these practical difficulties.

Administrative adjustment standards. To approve an application for an administrative adjustment, the Manager of Zoning shall make an affirmative finding that the following standards are met:

The benefits to the applicant of the approval of the administrative adjustment outweigh any detriments to the health, safety and welfare of the neighborhood or community by such approval.

There is no means other than the requested administrative adjustment by which the difficulty can be avoided or remedied to a degree sufficient to permit a reasonable use of the subject lot or parcel.

Procedures.

Application. An application for an administrative adjustment shall include a brief description of the requirement to be varied and any other material necessary to ensure the criteria in this section.

Action by Manager of Zoning. Within 45 days, the Manager of Zoning shall review the application and approve, approve with conditions or deny the application based upon the criteria below. A written decision including affirmative findings on the criteria set forth below shall be mailed to the applicant.

Approval or denial.

The Manager of Zoning shall have the authority to approve an administrative adjustment of up to 10% from any numerical standard set forth in this chapter. Any request greater than 10% shall be treated as a variance and reviewed by the Zoning Board of Appeals subject to the requirements of § 120-195.

The Manager of Zoning shall have the authority to approve an administrative adjustment for an alternative parking plan for five or fewer parking spaces.

The Manager of Zoning shall have the authority to approve an administrative adjustment for a parking area for a residential use which is located within the side yard due to the existing location of the principal building on the property; or is within the front yard and is limited to one parking space, when new curbs are being installed and the parking area existed before the project was identified in the City's Capital Plan and no other parking is available on the property.

A proposed front or side yard parking area shall be reviewed to ensure that the installation of said area does not have a detrimental impact on the streetscape. Such review shall include an evaluation of the following:

Neighborhood characteristics, based both on a physical evaluation of the streetscape and comments received from the neighborhood.

[ii]

Impact on available on-street parking.

[iii]

Impact on trees and other vegetation.

[iv]

Impact on the historic and/or architectural integrity of the streetscape.

When located in a preservation district, the Preservation Board shall have the authority to issue a certificate of appropriateness for front or side yard parking areas as outlined in § 120-194. In such cases no administrative adjustment shall be required. The Preservation Board shall apply the above-listed standards.

The Manager of Zoning shall have the authority to approve an administrative adjustment for a parking area or parking lot for commercial uses in a commercial district which:

Has a preexisting curb cut; and

Has insufficient space behind the building to accommodate required parking when new curbs are being installed and the parking lot or parking area existed before the project was identified in the City's Capital Plan; and

Can accommodate a parking stall length of 18 feet; and

Accommodates defined pedestrian access to the building.

Does not have a detrimental impact on the streetscape according to the evaluation criteria set forth in § 120-191A(4)(c)[3].

(Reserved)[1]

Editor’s Note: Former Subsection A(4)(c)[5], concerning authority of the Manager of Zoning to approve an administrative adjustment for four-foot-high fencing, was repealed 9-19-2017 by Ord. No. 2017-299.

The Manager of Zoning shall have the authority to approve an administrative adjustment for chain-link fencing in the front yard in residential districts, provided:

A substantial number of similar fencing exists on the frontage; and

The existing fencing has been legally installed.

The Manager of Zoning shall have the authority to approve an administrative adjustment for central air-conditioning units and the like in the side yard.

A proposed unit shall be reviewed to ensure that the installation will not have a detrimental impact on the adjacent properties. Such review shall include an evaluation of the following:

Neighborhood characteristics, based both on a physical evaluation of the streetscape and comments received from the neighborhood.

[ii]

Sound attenuation measures per § 120-171.

[iii]

Screening.

[iv]

Impact on the historic and/or architectural integrity of the streetscape.

When located in a preservation district, the Preservation Board shall have the authority to issue a certificate of appropriateness for side yard installations as outlined in § 120-194. In such cases no administrative adjustment shall be required. The Preservation Board shall apply the above-listed standards.

The Manager of Zoning shall have the authority to approve an administrative adjustment for an addition, or the like, to an existing structure which does not meet the side yard setback requirements of this chapter but is similar to the side yard setback of the existing structure.

[9]

The Manager of Zoning shall have the authority to approve an administrative adjustment to waive regulations pertaining to signs in the Center City District, with the exception of signs associated with a project undergoing site plan review.

Limitations on administrative adjustments. An administrative adjustment shall become null and void unless a certificate of zoning compliance and/or building permit is obtained and work is commenced within one year from the date of approval.

Appeals.

Appeal of a decision by the Manager of Zoning on an administrative adjustment shall be taken to the Zoning Board of Appeals within 60 days of the date of the Manager of Zoning's decision in accordance with the procedures outlined in § 120-195.

An appeal from any final decision of the Zoning Board of Appeals as to any matter regarding the administrative adjustment may be taken within 30 days of the filing of such decision by any person aggrieved or by any authorized officer, department, bureau, board or commission of the City in accordance with Article 78 of the New York Civil Practice Law and Rules.

Certificate of nonconformity.

Authority. The Manager of Zoning, or a designee, shall have authority to issue a certificate of nonconformity, but only in accordance with the provisions of this section and Article XXIV.

Purpose. The certificate of nonconformity shall establish the legality of nonconforming uses, structures, lots and signs established prior to the effective date of this chapter that do not conform to the regulations of this chapter applicable in the zoning districts in which such nonconformities are located. When necessary to establish the legality of a nonconformity, a certificate of nonconformity shall be required for any nonconforming use, structure, lot and sign in the City of Rochester prior to the approval of additional zoning applications that may be required. A certificate of nonconformity shall not be issued to authorize the operation of a cannabis establishment in any of the R-1 Low-Density Residential, R-2 Medium-Density Residential or R-3 High-Density Residential Zoning Districts except in the instance of R-3 High-Density Residential premises that have previously been authorized by special permit to operate as a cannabis establishment in accordance with § 120-27 of this chapter.

[Amended 11-3-2022 by Ord. No. 2022-322]

Criteria for determining intensity of use. In addition to the provisions of the zoning district which would first permit the establishment of a particular use as of right, the Manager of Zoning shall also consider the following in determining the intensity of a use as may be required by the regulations of this chapter pertaining to nonconformities:

Floor area;

Hours of operation;

Volume and type of sales;

Type of processing activity;

Nature and location of storage;

Transportation requirements by volume, type and characteristics;

Parking and loading characteristics;

Noise, smoke, odor, glare, vibration, radiation and fumes.

Additional approvals required.

In addition to the application for the certificate of nonconformity, the following shall require an area variance from the Zoning Board of Appeals:

Structural alteration or enlargement of a building or structure that is a legal nonconforming use and as defined in Article XXIV.

Expansion of use of a legally existing nonconforming use and as defined in Article XXIV.

In addition to the application for the certificate of nonconformity, the following shall require a use variance from the Zoning Board of Appeals:

Restoration of structures damaged or destroyed by any means not within the control of the owner to the extent of 60% or more as defined in Article XXIV.

In addition to the application for the certificate of nonconformity, the following shall require a special permit from the Planning Commission:

Reestablishment of a use that is of the same or less intensity than the abandoned previous use in a structure not designed for a permitted use and as defined in Article XXIV, provided that this approval shall not be issued to authorize the commencement of a cannabis establishment in any of the R-1 Low-Density Residential, R-2 Medium-Density Residential or R-3 High-Density Residential Zoning Districts. In addition to the standards set forth in § 120-192B(3), the Planning Commission shall consider the following:

The building is a designated building of historic value;

The condition and/or economic life of the building or structure;

The potential use of the building for neighborhood service uses; or

The potential for employment opportunities in the neighborhood.

Procedure.

Application. The owner of any nonconformity may at any time apply to the Manager of Zoning for a certificate of nonconformity to establish the legality of nonconformity as of a specified date. Such application shall contain such information as may be required by the Manager of Zoning.

Action by Manager of Zoning. Within 45 days following receipt by the Manager of Zoning of a completed application or such longer time as may be agreed to by the applicant, the Manager of Zoning shall cause such application to be reviewed for compliance with this section and shall inform the applicant whether the application has been approved, approved with restrictions or denied. The failure of the Manager of Zoning to act within 45 days of a completed application shall be deemed a denial.

Approval or denial.

Upon reviewing an application for a certificate of nonconformity, the Manager of Zoning shall determine if the required documents and proof are in order and determine if the use, lot, structure or sign:

Was lawfully existing at the time of the adoption of the provision creating the nonconformity in question;

Has been in continuous use since its establishment with no period of discontinuance causing abandonment, except as authorized pursuant to § 120-199G(3), and is not in violation of any other provisions of this chapter;

Is of equal or less intensity than the existing nonconformity;

Was fire damaged less than the percentages of the cost of replacement new as set forth in §§ 120-199 and 120-200.

The Manager of Zoning shall issue a certificate evidencing such facts and setting forth the nature and extent of the nonconformity; otherwise, the Manager of Zoning shall decline to issue such certificate and shall declare such building, structure or sign to be in violation of this chapter.

Certificate issued based on false information. Any certificate of nonconformity issued based on false information submitted by the applicant shall be null and void.

Limitation on certificates of nonconformity. A certificate of nonconformity shall become null and void six months after the date on which it was issued unless a building permit and a certificate of occupancy are obtained and maintained.

Appeals.

Appeal of a decision by the Manager of Zoning on a certificate of nonconformity shall be taken to the Zoning Board of Appeals within 60 days of the date of issuance of the Manager's decision in accordance with the procedures found in § 120-195.

An appeal from any final decision of the Zoning Board of Appeals as to any matter regarding the certificate of nonconformity may be taken within 30 days of the filing of such decision by any person aggrieved or by any authorized officer, department, bureau, board or commission of the City in accordance with Article 78 of the New York Civil Practice Law and Rules.

Interpretation.

Authority. The Manager of Zoning, or a designee, may, subject to the procedures, standards and limitations hereinafter set out, render interpretations of any provision of this chapter.

Purpose. Interpretations by the Manager of Zoning are intended to clarify the zoning text or map, including permitted uses, district boundaries, meaning and intent of various portions of this chapter and precise location of mapped district boundary lines.

Interpretation standards. The following criteria shall govern the Manager of Zoning and the Zoning Board of Appeals on appeals of a decision by the Manager of Zoning in issuing use interpretations:

No interpretation relating to use shall be given with respect to the R-1 through R-3 Residential Districts.

No interpretation shall permit a use that is a prohibited use defined by this chapter.

No interpretation shall permit a use listed as a permitted or special permit use in any district to be established in any district in which such use is not so listed.

No interpretation shall permit any use in any district unless evidence is presented which demonstrates that it will comply with each use limitation established for the particular district.

No interpretation shall permit any use in any district unless such use is substantially similar to other uses permitted in such district and is more similar to such other uses than to uses permitted or specially permitted in a more restrictive district.

If the proposed use is most similar to a use permitted only as a special permit in the district in which it is proposed to be located, then any use interpretation permitting such use shall be conditioned on the issuance of a special permit pursuant to § 120-192.

Procedure.

Application. A request for interpretation of any provision of this chapter shall be submitted in writing to the Manager of Zoning. It shall set forth the specific provision or provisions to be interpreted, the facts of the specific situation concerning the request for an interpretation, and the precise interpretation claimed by the applicant to be correct. Before the rendering of any interpretation, the Manager of Zoning may require such further facts and information as are, in his or her judgment, necessary to a meaningful interpretation of the provision in question.

Action by Manager of Zoning. Within 10 business days following the receipt of a completed request or application for interpretation, the Manager of Zoning shall inform the applicant in writing of the interpretation. The Manager of Zoning shall state the specific precedent, reasons and analysis upon which such interpretation is based.

Procedure following interpretation. Following an interpretation by the Manager of Zoning, such interpretation shall be appended to the official copy of this Zoning Code and distributed with any copies of said Code until such time as a formal amendment renders such appendix redundant.

Effect of interpretation. An interpretation finding a particular use to be permitted or specially permitted in a specified district shall not authorize the establishment of such use nor the development, construction, reconstruction, alteration or moving of any building or structure but shall merely authorize the preparation, filing and processing of applications for any permits and approvals which may be required by the Code of the City of Rochester, including but not limited to a permit for a special permit, a certificate of zoning compliance, a building permit, a certificate of occupancy, subdivision approval and site plan approval.

Limitation on interpretations. If not made part of this chapter, an interpretation shall become null and void one year after the date the interpretation was made.

Appeal.

Appeals of interpretations made by the Manager of Zoning shall be made to the Zoning Board of Appeals within 60 days of the date of the decision in accordance with the procedures found in § 120-195.

An appeal of an interpretation shall stay all proceedings in furtherance of the interpretation appealed, including the issuance of a building permit, unless the Manager of Zoning certifies to the Zoning Board of Appeals after the notice of appeal has been filed that a stay would cause substantial damage to life or property. In such case, the proceedings shall not be stayed other than by a majority vote of the Zoning Board of Appeals.

An appeal from any final decision of the Zoning Board of Appeals as to any matter regarding the interpretations may be taken within 30 days of the filing of such decision by any person aggrieved or by any authorized officer, department, bureau, board or commission of the City in accordance with Article 78 of the New York Civil Practice Law and Rules.

Site plan review.

Authority. Subject to the procedures, standards and limitations set forth in this chapter, the Manager of Zoning, or a designee, shall review and approve, approve with conditions or deny applications for site plans.

Purpose. The site plan review process recognizes that some developments and uses, even though generally suitable for location in a particular district, are, because of their design (materials, details, textures), character, nature, size, complexity or other indicia of probable impact, capable of adversely affecting the goals for which this chapter is established unless careful consideration has been given to critical design elements. It is the purpose of this section to provide a vehicle for the review of the applicant's attention to such elements.

Site plan review thresholds for minor and major site plan reviews. Site plan review in accordance with this section shall be required in the following cases, with the exception of accessory structures not changing land use or density and projects involving no site or external structural alterations:

Minor site plan review shall be required for any development or redevelopment that includes construction, enlargement or addition to any building or any site preparation for a site or use that may not include or require a building and meets one of the following:

New construction that does not meet the City-wide design standards set forth in this chapter, except those applications not meeting the residential building standards set forth in § 120-160A(2) to (4).

Exterior alterations to existing buildings or structures and all new construction in the CCD that include minor deviations from the design criteria, excluding deviations pertaining to signs. (Note: Refer to the pertinent Design Checklist at the end of this chapter for a list of deviations.)

Exterior alterations to existing buildings in Village Center Districts that do not meet the specific design standards listed in those districts.

Applications that do not comply with neighborhood design guidelines adopted pursuant to § 120-161.

Parking lots over 10 spaces that do not meet the requirements for parking lots in § 120-173.

[Amended 9-19-2017 by Ord. No. 2017-299]

More than two loading spaces in any district adjacent to any residential district or Open Space District.

Any loading space which does not meet the dimension requirements specified in § 120-172.

Any new structure or structures having a total floor area, or covering a contiguous land area, in excess of 20,000 square feet which do not comply with the City-wide Design Standards and all other zoning requirements.

[9]

Any new construction on a vacant parcel of one acre or more.

[10]

Projects involving or abutting a designated landmark or those involving or abutting a site listed or eligible for listing on the State or National Register of Historic Places.

[11]

Projects within an O-S Open Space District and commercial and industrial development adjacent to the O-S Open Space District.

[12]

Any outdoor activity area accessory to a nonresidential use, excluding accessory outdoor seating.

[13]

Projects within 100 feet of waterfront.

[14]

New construction of multifamily dwellings.

[15]

New advertising sign structures.

[16]

In planned development districts, incremental development as defined in § 120-126B of this chapter.

[17]

The conversion of floor area designed for nonresidential use to a residential use and vice versa in any commercial, village center, overlay, or residential district.

[18]

Any development or redevelopment resulting in site grading exceeding the maximum slope requirements in § 120-178.

[19]

Any development or redevelopment in all districts, with the exception of detached single-family dwellings and two-family dwellings, that involves the installation of a new curb cut in the public right-of-way of principal arterials, minor arterials and collector streets. (See Attachment SC, Street Classifications.)

Minor site plan review shall be required for the following:

All junkyards or salvage yards, recycling centers and waste stations.

Prior to demolition, any site preparation, development or redevelopment where demolition is proposed in the C-1, C-2, and Village Center Districts.

Conversion to or from any of the following vehicle-related uses or the development or redevelopment of any sites devoted to such uses, including:

Vehicle service stations, vehicle repair, vehicle sales/rental.

Vehicle storage, wrecking, towing.

Car washes.

Drive-through facilities and uses.

Truck centers.

Major site plan review required. Major site plan review will be required for any site plan meeting one or more of the thresholds of minor site plan review and one of the following:

All Type I actions as identified in § 48-4 of the City Code, excluding applications requiring certificates of appropriateness.

Applications in the CCD that include major deviations from the design criteria. (Note: Refer to the pertinent Design Checklist at the end of this chapter for a list of major deviations.)

All development concept plan approvals or amendments for planned development districts.

Construction of any principal building in the C-1, C-2, H-V or PMV Districts that does not meet City-wide design standards set forth in this chapter.

A redevelopment plan contingent upon the demolition of a designated building of historic value, excluding applications requiring certificates of appropriateness.

Sign proposals for designated buildings of historic value in the CCD with minor deviations of the design criteria relating to number, type and size.

Denial criteria. The Manager of Zoning shall deny an application on the basis of specific written findings directed to one or more of the following:

The application is incomplete in specified particulars or contains or reveals violations of this chapter or other applicable regulations which the applicant has, after written request, failed or refused to supply or correct.

The proposed site plan interferes unnecessarily, and in specified particulars, with easements, roadways, rail lines, utilities, and public or private rights-of-way.

The proposed site plan unnecessarily, and in specified particulars, destroys, damages, detrimentally modifies or interferes with the enjoyment of significant natural, topographic or physical features of the site.

The proposed structures unnecessarily, and in specified particulars, destroy, damage. detrimentally modify or interfere with the significant design features of the existing buildings and structures on the site.

The proposed structures or landscaping unnecessarily, and in specified particulars, bear a poor relationship to the existing physical development of the site or results in an overall development that compromises existing design, parking or landscaping elements.

The site design does not comply with ADA requirements.

The proposed site plan unnecessarily, and in specified particulars, is injurious or detrimental to the use and enjoyment of surrounding property.

There is inadequate infrastructure capacity to support the use or development.

The proposed site plan and associated improvements fail to mitigate the project's anticipated traffic impacts.

The proposed site plan fails to provide for adequate access for emergency vehicles.

The pedestrian and vehicular circulation elements unnecessarily, and in specified particulars, create hazards to safety on or off the site.

(l)

The proposed structure unnecessarily, and in specified particulars, is lacking amenity in relation to or are incompatible with, nearby structures and uses.

(m)

The proposed site plan unnecessarily, and in specified particulars, is lacking amenity in relation to, or incompatible with, nearby structures and uses.

(n)

The proposed site plan unnecessarily, and in specified particulars, creates drainage or erosion problems.

(o)

The proposed structures unnecessarily, and in specified particulars, are incompatible with or lacking in amenity in relation to existing uses on the site or existing building materials, roof shapes and fenestration on the site. .

(p)

The proposed site plan fails to contribute to existing pedestrian-oriented rights-of way and unnecessarily, and in specified particulars, is lacking in amenity in relation to the public realm and streetscape.

(q)

The proposed site plan detrimentally impacts the visual and physical access to and along the waterfront

(r)

In the CCD, the proposed site plan is contrary to, or fails to meet, the principles and objectives of the Center City Master Plan as enumerated in § 120-58 of this chapter.

Procedure.

Application. Applications for minor and major site plans shall be submitted in a form and in such numbers as required by the Manager of Zoning. A nonrefundable fee, as established from time to time by the City Council to help defray administrative costs, shall accompany each application. The Manager of Zoning may also request such other and further information and documentation deemed necessary or appropriate to a full and proper consideration and disposition of the particular application.

Action by Manager of Zoning.

Within 30 days following receipt by the Manager of Zoning of a completed application or such longer time as may be agreed to by the applicant, the Manager of Zoning shall cause such application and the attached plans to be reviewed for compliance with this chapter and shall render a decision.

For all major site plans, the Manager of Zoning will refer the site plan to the Project Review Committee which shall review and make a recommendation to the Manager of Zoning regarding the site plan.

Processing multi-action applications.

In cases where site plan review applications are required in conjunction with other special process applications, site plan review shall precede all other applications. The applicant shall submit all appropriate application and State Environmental Quality Review Act (SEQRA) forms.

Following appropriate staff and agency review, the lead agency shall prepare a SEQRA environmental significance determination and preliminary site plan review findings.

At this point, any special review process applications shall be submitted and public hearings held in accordance with this article.

Only upon approval of such special review applications shall a final site plan review decision be made.

Approval or denial.

The Manager of Zoning shall issue a final decision on each site plan. The decision of the Manager of Zoning, which shall be based on the findings set forth, shall be final and shall:

Approve the application;

Approve the application with conditions; or

Deny the application.

In any case where an application is denied, the Manager of Zoning shall state the specific reasons and shall cite the specific provisions of this chapter upon which such denial is based.

The Manager of Zoning shall stamp each copy of the application and plans to reflect the action taken and shall return one copy of each to the applicant and shall retain one copy of each in City records for such period as he or she may deem necessary or as may be required by law.

Regional context review criteria.

Linkage. To the maximum practical extent, new development shall be laid out and designed to provide walkways and paths that connect with destinations such as parks, schools and shopping areas within and outside the municipal boundaries.

Location of existing and planned transit routes. Any proposed development shall consider the location of existing and planned transit routes and provide vehicular and pedestrian connections to any transit points within or adjacent to the development.

Amendment. An approved site plan may be amended at any time in the same manner and subject to the same standards and limitations as provided in this section for original site plan approval except as otherwise authorized by the Manager of Zoning.

Letters of credit.

Each applicant shall be required to provide evidence of the financing plan that the applicant proposes to use to complete the proposed project, which may include a letter of credit, or similar security acceptable to the Manager of Zoning, and a fully executed agreement in the form provided by the City. The letter of credit in favor of the City of Rochester for the estimated cost of required site improvements shall be unconditional and irrevocable for a period of not to exceed two years. The agreement shall also be irrevocable for a period of two years and shall permit the City of Rochester to enter the subject property and to install such improvements if the applicant fails to do so within the period of time specified in the agreement.

Such letter of credit or similar security, and the agreement, each in a form satisfactory to the Manager of Zoning, shall be submitted prior to obtaining a building permit as a condition of site plan approval.

Should the applicant fail to perform the required site improvements within the agreed period of time, the Manager of Zoning shall issue a written notice of such failure to the applicant. It shall be sufficient service of such notice if it is mailed to the applicant at the address provided by him or her in the site plan application. If the applicant fails to perform the required site improvements within 15 business days of the issuance of such notice, the Manager of Zoning is authorized to draw upon the letter of credit or to access any other offered security as may be necessary to cover the costs to the City to perform work which the applicant failed to perform. The applicant may request a hearing before the Manager of Zoning within five days from the issuance of the notice. The hearing will be held before the expiration of the notice period of 15 business days.

The letter of credit or other security, described in this subsection, may be waived by the Manager of Zoning where:

No site improvements or alterations to the site are associated with the application for site plan approval and no site improvement conditions have been attached to such approval.

None of the proposed or required site improvements will have any discernible impact on adjacent private property or on the public right-of-way, and such improvements primarily affect the user of the property and not adjacent property owners or the general public.

Evidence of the applicant's satisfactory completion of prior site plan review projects is offered in lieu of a letter of credit.

Evidence of a satisfactory financing plan that will guarantee completion of the required site improvements.

Effect of site plan approval. If the Manager of Zoning or the Planning Commission shall approve the application, or approve it subject to further specified approvals or conditions which are acceptable to the applicant, such approval shall not authorize the establishment or expansion of any use nor the development, construction, reconstruction, alteration or moving of any building or structure.

Limitations on site plan approvals. A site plan approval shall become null and void one year after the date on which it was issued unless a building permit is obtained and maintained.

(9)

Referrals and appeals.

Referrals of a decision by the Manager of Zoning on a site plan review application shall be taken to the City Planning Commission within 30 days of the decision. A public hearing shall be set, advertised and conducted by the Planning Commission in accordance with § 120-188. The Commission shall review the application in accordance with the denial criteria set forth in § 120-191D(4) and shall render a decision within 30 days following the conclusion of the public hearing. The failure of the Commission to act within 30 days shall be deemed an endorsement of the decision of the Manager of Zoning.

An appeal from any final decision of the Planning Commission as to any matter regarding the site plan review may be taken within 30 days of the filing of such decision by any person aggrieved or by any authorized officer, department, bureau, board or commission of the City in accordance with Article 78 of the New York Civil Practice Law and Rules.

§ 120-192 Procedures approved by the Planning Commission.

Cluster development.

Authority. Pursuant to § 37 of the New York General City Law and the Charter of the City of Rochester, the Planning Commission, as a matter of its original jurisdiction and subject to the procedures, standards and limitations hereinafter set out, may permit, simultaneously with the approval of a subdivision plat, deviations from the zoning requirements established by this chapter governing the average density of population permitted in the zoning district where such land lies.

Purpose. Cluster development procedures are established to provide a method to permit minor modifications of the yard, bulk and space requirements applicable in the various districts established by this chapter. Cluster development permits the grouping of structures in order to provide more usable open space or to preserve open space or historic or scenic features without exceeding overall density or land coverage requirements.

Cluster development standards.

Authorized uses. No use shall be authorized by a cluster development permit except uses permitted or permissible in the district in which such development is to be located. Approval of a cluster development for a use requiring any special approval shall not excuse the requirement of obtaining such special approval.

Density and coverage. No permit for a cluster development shall authorize any increase in the overall density or intensity of development nor any increase in the overall lot coverage permitted by the district regulations applicable in the district in which such development is to be located. All land devoted to private street purposes shall be excluded from density, intensity and lot coverage calculations.

Approval criteria. A permit for a cluster development shall be approved only if evidence is presented which establishes that:

The proposed development will be in harmony with the general purpose, goals, objectives, standards and implementing strategies of the Comprehensive Plan, this chapter and the Subdivision Code.

The proposed building or use complies with all applicable regulations of this chapter except as modified pursuant to the authority of this section.

The proposed building or use will not have a substantial or undue adverse effect upon adjacent property, the character of the neighborhood, traffic conditions, parking, utility facilities and other matters affecting the public health, safety and general welfare.

The proposed cluster development will be constructed, arranged and operated so as not to dominate the immediate vicinity or to interfere with the development and use of neighboring property in accordance with the applicable district regulations.

The proposed cluster development will be served adequately by essential public facilities and services, such as highways, streets, parking spaces, police and fire protection, drainage structures, refuse disposal, water and sewers, and schools, or that the persons or agencies responsible for the establishment of the proposed use will provide adequately for such services.

The proposed cluster development will not result in the destruction, loss or damage of any natural, scenic or historic feature of significant importance.

Procedure.

Application. An application for cluster development shall be submitted in a form and in such numbers as required by the Manager of Zoning. A nonrefundable fee, as established from time to time by the City Council to help defray administrative costs, shall accompany each application. The Manager of Zoning may also request such other and further information and documentation deemed necessary or appropriate to a full and proper consideration and disposition of the particular application.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Public hearing. A public hearing shall be set, advertised and conducted by the Planning Commission in accordance with § 120-188.

Action by Planning Commission.

Within 62 days following the conclusion of the public hearing, the Planning Commission shall render its decision of approval, approval with conditions or denial of approval. The failure of the Commission to act within 62 days, or such longer period of time as may be agreed to by the applicant, shall be deemed a denial of the application.

Within 10 business days of such decision or the expiration of such period, the Manager shall mail notice of such decision or failure to act to all parties entitled thereto as provided by § 120-188, file such decision in the office of the City Clerk, and, in the event that a cluster development permit is authorized, the Manager of Zoning shall issue such permit, listing therein any and all conditions imposed by the Planning Commission.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

The Planning Commission may impose such conditions upon the premises benefited by a permit for a cluster development as may be necessary to ensure its compatibility with other development in the neighborhood. Such conditions shall be expressly set forth in the resolution authorizing the cluster development and in any associated permit. Violation of such conditions shall be a violation of this chapter.

Amendments to cluster developments. An approved cluster development may be amended in the same manner and subject to the same limitations as any other regulation established by this chapter, except that site plan review and approval pursuant to § 120-191 shall be required in connection with any such proposed amendment.

Effect of cluster development approval.

Amendment to regulations. The issuance of a permit for a cluster development shall, upon the filing of a plat of such development with the Monroe County Clerk, constitute an amendment of the bulk, space and yard regulations of this chapter applicable to such development, and thereafter such plat shall constitute the bulk, space and yard regulations applicable to such development.

No development or construction authorized. The issuance of a permit for a cluster development shall not authorize the establishment or expansion of any use nor the development, construction, reconstruction, alteration or moving of any building or structure but shall merely authorize the preparation, filing and processing of applications for any permits or approvals which may be required by the codes and ordinances of the City, including but not limited to a permit for a special permit, a certificate of zoning compliance, a building permit, a certificate of occupancy and subdivision approval.

Modifications to cluster development. During the development of a cluster development, the Manager of Zoning may authorize modifications to the approved cluster development when such modifications appear necessary in light of technical or engineering considerations first discovered during actual development.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Authorization of modifications. No such modifications shall authorize the violation of any of the requirements set forth in this section nor result in:

Altering the bulk of any one structure or altering the bulk of a member of similar structures by more than 10%.

Altering the location of any one structure or group of structures by more than 10 feet or 0.1 of the distance shown on the plat between such structure or structures and any other structure or any vehicular circulation element or any boundary of the cluster development, whichever is less.

Altering the boundary of any open space by more than 20 feet.

Reducing the total amount of open space by more than 5% or reducing the yard area or open space associated with any single structure by more than 5%.

Consistency of modifications. Such modifications shall be consistent with the intent and purpose of the Comprehensive Plan, this chapter and the approved cluster development plat and shall be the minimum necessary to overcome the particular difficulty.

Limitation on cluster development. A cluster development approval shall be null and void one year after the date on which it was issued unless a building permit is issued and construction begun within that time frame.

Appeal.

Appeals of decisions made by the Manager of Zoning on modifications to the cluster development shall be made to the Planning Commission within 30 days of the decision.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

An appeal from any final decision of the Planning Commission as to any matter regarding the cluster development may be taken within 30 days of the filing of such decision by any person aggrieved or by any authorized officer, department, bureau, board or commission of the City in accordance with Article 78 of the New York Civil Practice Law and Rules.

Special permit.

Authority.

As a matter of its original jurisdiction, the Planning Commission may, subject to the procedures, standards and limitations hereinafter set out, hear, review and finally decide special permit applications required by this chapter.

Pursuant to § 120-191, the Planning Commission shall have the authority to approve special permits for the reestablishment of a nonconforming use that is of similar or less intensity than the abandoned previous use in a structure not designed for a permitted use.

Purpose. The special permit procedure is intended to provide a means to establish those uses having some special impact or uniqueness which requires a careful review of their location, design, configuration and special impact to determine, against fixed standards, the desirability of permitting their establishment on any given site. They are uses that may or may not be appropriate in a particular location depending on a weighing, in each case, of the public need and benefit against the local impact and effect.

[Amended 7-27-2004 by Ord. No. 2004-240]

Special permit standards.

Approval standards.

A special permit shall be approved only if evidence is presented which establishes that:

The proposed application will be in harmony with the general purpose, goals, objectives, standards and implementation strategies of the Comprehensive Plan, this chapter and, where applicable, the Subdivision Code.

The proposed application will not have a substantial or undue adverse effect upon adjacent property, the character of the neighborhood, traffic conditions, parking, utility facilities and other matters affecting the public health, safety and general welfare.

The proposed application will be constructed, arranged and operated so as not to dominate the immediate vicinity or to interfere with the development and use of neighboring properties in accordance with the applicable district regulations.

The proposed application will be served adequately by essential public facilities and services, such as highways, streets, parking spaces, police and fire protection, drainage structures, refuse disposal, water and sewers, and schools, or that the persons or agencies responsible for the establishment of the proposed use will provide adequately for such services.

The proposed application will not result in the destruction, loss or damage of any natural, scenic, cultural or historic feature of significant importance.

In determining whether the evidence establishes that the foregoing standards have been met, the Planning Commission may determine that an overriding public need mitigates certain impacts or effects of the proposed application and support approval.

For special permit applications for use of vacant land or single-story structures in the M-1 District as outlined in § 120-83, in addition to the standards for special permit approval set forth in § 120-192B(3), a special permit shall be approved only if a marketability analysis is presented which establishes at least one of the following standards:

[Amended 12-20-2005 by Ord. No. 2005-394]

Marketability standards.

The premises is not marketable for manufacturing or industrial purposes as demonstrated by at least one of the following factors:

The inability to find a tenant or interested buyer over an extended period of time.

[ii]

Physical location or locational limitations or deficiencies of the site, building or public infrastructure.

In the case of a site of one acre or less, the low potential to include the site as part of an assembly of adjacent properties for industrial purposes.

The proposed use is in conformance with the strategic plan and policies of the City for economic development and job creation.

The proposed use will provide a service to neighboring industrial uses and/or their employees.

In applying for a special permit under the marketability standards, it shall be enough for an applicant to indicate the general location and distribution of any of the proposed uses. Once a special permit for a building site or lot has been approved, an applicant shall not be required to apply for special permit approval for each individual tenancy.

If the use or category of use of an existing building or site is proposed to be changed subsequent to such approval, an application for a modification of the special permit shall be filed pursuant to § 120-192, except the applicant shall not be required to reestablish the special permit standard concerning marketability.

Standards indicating the type of information required to document conformance with each of the aforementioned standards shall be as adopted from time to time by the Planning Commission.

For special permit applications for nonconformities, the Planning Commission shall weigh the considerations outlined in § 120-191.

For special permit applications for any development within a floodplain requiring relief from Chapter 56, Flood Damage Prevention, the Planning Commission shall weigh the considerations set forth in § 56-6, Variance procedure.

[Added 6-17-2003 by Ord. No. 2003-183; 8-12-2008 by Ord. No. 2008-296[1]]

Editor's Note: This ordinance provided an effective date of 8-28-2008.

For special permit applications in the O-A Overlay-Airport District, the Planning Commission shall weigh the considerations outlined in § 120-96.

[Added 6-17-2003 by Ord. No. 2003-183]

Procedure.

Application. An application for a special permit shall be submitted in a form and in such numbers as required by the Manager of Zoning. A nonrefundable fee, as established from time to time by the City Council to help defray administrative costs, shall accompany each application. The Manager of Zoning may also request such other and further information and documentation deemed necessary or appropriate to a full and proper consideration and disposition of the particular application. In addition, all applications for a special permit shall comply with all standards imposed on it by the particular provision of this chapter, unless the Planning Commission may waive the standard, authorizing such use.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Public hearing. A public hearing shall be set, advertised and conducted by the Planning Commission in accordance with § 120-188.

Action by Planning Commission.

Within 62 days following the conclusion of the public hearing, the Planning Commission shall:

Approve the application;

Approve the application with conditions;

Approve the application for a specified time period; or

Deny the application.

The failure of the Commission to act within 62 days shall be deemed a denial of the application.

[Amended 6-17-2003 by Ord. No. 2003-183]

Within 10 business days of such decision or the expiration of such period, the Manager shall mail notice of such decision or failure to act to all parties entitled thereto as provided by § 120-188, file such decision in the office of the City Clerk, and, in the event that a permit for a special permit is authorized, the Manager of Zoning shall issue such permit, listing therein any and all conditions imposed by the Planning Commission.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Where the district regulations authorizing any special permit in a particular district impose additional standards to be met by such use in such district, a permit for such use in such district shall be approved only if evidence is presented to establish compliance with such additional standards.

Conditions on special permits.

The Planning Commission may impose such conditions upon the premises benefited by a special permit as may be necessary to prevent or minimize adverse effects upon other property in the neighborhood.

Such conditions shall be expressly set forth in the resolution authorizing the special permit and in any associated permit.

Violation of such conditions shall be a violation of this chapter.

Such conditions may be required to be performed in a specific order.

Such conditions may include but shall not be limited to the following:

Modification of specific features of the site plan to improve the safety of the site for the general public;

The hours of operation, loading and deliveries;

Location on a site of activities that generate potential adverse impacts on adjacent uses such as noises and glare;

Placement of trash receptacles;

Location of loading and delivery areas;

[f]

Lighting location, intensity and hours of illumination;

[g]

Placement and illumination of outdoor vending machines, telephones, and similar outdoor services and activities;

[h]

Additional landscaping and buffering;

Height restrictions to preserve light and privacy and views of significant features from public property and rights-of-way,

[j]

Access to natural lighting and solar exposure;

[k]

Ventilation and control of odors and fumes;

[l]

Dust-control paving; and

[m]

Noise limitations.

Renewal of special permits with specified time periods. Special permits that have been issued for a specific time period are subject to review for compliance with all of the conditions imposed at the time of approval of the initial permit. Following a public hearing on the matter, the Planning Commission may decline to reissue the special permit only when it can be clearly demonstrated that the applicant has failed to comply with one or more of the conditions of the original approval, substantial new issues addressing the permit standards during the operation of the use or the general requirements of this chapter are not met.

Modifications to special permits. No expansion or modification of a use or its operation that is the subject of a special permit shall be permitted, except through the same process as required for initial approval of the special permit.

Effect of issuance of a special permit. The issuance of a special permit shall not alone authorize the establishment or expansion of any use nor the development, construction, reconstruction, alteration or moving of any building or structure but shall merely authorize the preparation, filing and processing of applications for any permits or approvals which may be required by the codes and ordinances of the City, including but not limited to a certificate of zoning compliance, a certificate of appropriateness, variances, a building permit, a certificate of occupancy and subdivision approval.

[Amended 6-17-2003 by Ord. No. 2003-183]

Limitations on special permits. A special permit shall become null and void one year after the date on which it was issued unless a building permit is obtained and maintained. Where a violation of this chapter has been cited against the property which is the subject of the special permit, the Commission may establish a shorter time limitation based on the nature and severity of the violation, taking into consideration the practical ability of the applicant to correct the violations in light of weather conditions, construction issues or other relevant factors. A special permit shall be deemed to authorize only the particular use or its operation for which it was issued, and such permit shall automatically expire and cease to be of any force or effect if such use shall, for any reason, be discontinued for a period of six consecutive months or more.

[Amended 9-21-2010 by Ord. No. 2010-323]

Appeal. An appeal from any final decision of the Planning Commission as to any matter regarding the special permit may be taken within 30 days of the filing of such decision by any person aggrieved or by any authorized officer, department, bureau, board or commission of the City in accordance with Article 78 of the New York Civil Practice Law and Rules.

Adoption of neighborhood design guidelines.

Authority. The Planning Commission shall have the authority to adopt neighborhood design guidelines as outlined in § 120-161.

[Amended 6-17-2003 by Ord. No. 2003-183]

Purpose. The neighborhood design guideline process herein established is intended to provide a means for the Planning Commission to review and adopt guidelines proposed for specific neighborhoods in the City of Rochester.

Procedure.

Neighborhood design guidelines shall be approved by petition by 50% or more of the affected property owners in the district prior to being submitted to the Project Review Committee. A copy of the proposed neighborhood design guidelines shall be attached to the petition distributed to affected property owners.

Neighborhood design guidelines may be proposed by a citizen group, neighborhood group, sector committee or other affected organization.

Action by the Project Review Committee The guidelines shall be reviewed by the Project Review Committee, which shall make recommendations to the Planning Commission.

Action by the Planning Commission.

Within 40 days of the receipt of the design guidelines, the Planning Commission shall conduct a public hearing.

The City Planning Commission will determine the appropriateness of the guidelines and:

Approve the neighborhood design guidelines;

Approve the neighborhood design guidelines with conditions; or

Deny the neighborhood design guidelines.

Action by the Manager of Zoning.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

The Manager of Zoning shall keep the guidelines on file.

The guidelines shall be applied by the Manager of Zoning in the review of applications.

Appeal. An appeal from any final decision of the Planning Commission as to any matter regarding the neighborhood design guidelines may be taken within 30 days of the filing of such decision by any person aggrieved or by any authorized officer, department, bureau, board or commission of the City in accordance with Article 78 of the New York Civil Practice Law and Rules.

§ 120-193 Procedures approved by the Preservation Board and Planning Commission.

Designation of landmarks.

Authority. The Preservation Board and Planning Commission shall have the authority, in accordance with the procedures hereinafter established, to designate landmarks within the City and to rescind such designations as from time to time shall seem appropriate.

Purpose. Landmarks may be designated in furtherance of the following public purposes, which are hereby found to be in the interest of the health, prosperity and welfare of the City and its residents:

To effect and accomplish the protection, enhancement, perpetuation and use of improvements and areas of special character or special historical and aesthetic interest or value which represent or reflect elements of the City's cultural, social, economic, political and architectural history.

To safeguard the City's historic, aesthetic and cultural heritage as embodied and reflected in such improvements and areas.

To stabilize and improve property values in such areas.

To foster civic pride in the beauty and noble accomplishments of the past.

To protect and enhance the City's attractions to tourists and visitors and the support and stimulus to business and industry thereby provided.

To strengthen the economy of the City.

To promote the use of historic districts and landmarks for the education, pleasure and welfare of the people of the City.

Landmark designation standards. No structure, improvement, landscape feature or cultural site in the City shall be designated a landmark pursuant to the provisions of this section unless it shall have the potential to provide cultural and civic benefits for the people of the City by reason of prevalence of one or more of the following standards:

[Amended 7-27-2004 by Ord. No. 2004-240]

Preservation Board standards:

Presence of significant character or historic or aesthetic interest or value as part of the maritime, architectural, economic or social heritage of the City, county, state or nation.

Identification with an historic person or event.

Embodiment of the distinguishing characteristic of an architectural style.

Significance as representative of the work of a master builder, designer, architect or landscape architect.

Significance as an established and familiar visual feature of the City because of a unique location or singular physical characteristic.

Relationship to a distinctive area of the City, lakefront or riverfront.

Presence or potential presence of information important to history or prehistory.

Worthiness for inclusion or listed on the State or National Register of Historic Places.

Landmark designation standards for the Planning Commission for applications that the Preservation Board has agreed to designate:

The proposed designation will be in harmony with the City's Comprehensive Plan and overall planning program of the City.

The proposed designation will not adversely impact the growth and development of the City.

The proposed designation will not adversely impact any scheduled public improvement or renewal project.

Procedure.

Application.

A landmark may be proposed by the City Council, the Planning Commission, the Preservation Board or the property owner by transmitting such proposal, together with such supporting materials as may seem appropriate, to the Manager of Zoning for processing in accordance with the provisions of this section.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Any other City resident may submit a nomination request to the Preservation Board. If the Preservation Board agrees to sponsor the application, the City resident shall provide supporting documentation that the proposed landmark is worthy of designation by preparing all supporting materials for any application.

Notice to owner. In addition to any other required notification, a notice sent by certified mail with return receipt requested shall be forwarded within five business days of the Manager of Zoning receiving a nomination request and upon receipt of the completed application to the last known property owner of the nominated landmark as shown on records of the City.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Action by the Preservation Board. Upon receipt of a completed application by the Manager, a public hearing shall be set, advertised and conducted by the Preservation Board.

[Amended 6-20-2017 by Ord. No. 2017-170]

Within 32 days following the closing of their public hearing, the Preservation Board shall:

Approve and designate the landmark;

Approve and designate the landmark with modifications; or

Deny the designation.

The failure of the Preservation Board to act within 32 days of the closing of the public hearing, or such longer time as may be agreed to by the applicant, shall be deemed a refusal to approve the landmark as proposed.

In the event that the designation is not consented to by the owner of the proposed landmark, such designation shall require a three-fourths affirmative vote of the entire Board.

A copy of such resolution shall be forwarded to the Chairperson of the Planning Commission.

Action by Planning Commission.

[Amended 7-27-2004 by Ord. No. 2004-240]

Where the Preservation Board does not act within the required time period, or where the Board refuses to designate, no further action shall be necessary, and the application shall be deemed void.

The Planning Commission shall give due consideration to the resolution of the Preservation Board, the evidence produced at its public hearing, any staff reports prepared with respect to the proposed landmark and its own knowledge and expertise.

Within 32 days following the conclusion of the Planning Commission's public hearing, the Planning Commission shall:

Approve such designation.

Disapprove the designation.

In the event that the designation is not consented to by the owner of the proposed landmark, such designation shall require a three-fourths affirmative vote of the entire Planning Commission. The failure of the Planning Commission to act within 32 days, or such longer time as may be agreed to by the applicant, shall be deemed an approval of the landmark designation as passed by the Preservation Board.

Within 10 business days following the action of the Planning Commission or the expiration of the time set for its action, the Manager of Zoning shall mail notice of such action and the action of the Preservation Board to such person entitled to such notice pursuant to § 120-188.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Publication, recording and effective date.

Upon the adoption of a resolution by the Planning Commission approving the designation of a landmark, or upon the expiration of time provided for the adoption of such a resolution, the Manager of Zoning shall cause the location of such landmark to be recorded on the Zoning Map.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

The designation of such landmark shall become effective upon such recording.

Amendment and rescission of landmark designation. A landmark designation made pursuant to this section may be amended or rescinded in the same manner as herein provided for the designation of such landmark.

Alteration to property pending final disposition. When any proposal, nomination request or application has been filed pursuant to this section to designate a landmark, and until such proposal or application has been finally disposed of, it shall be unlawful for any person to, and no person shall, perform, cause or permit any construction, alteration, remodeling, removal, movement or demolition of any building, structure, other improvement or premises which is included within such proposal or application except in accordance with the provisions of this section.

Appeal. An appeal from any final decision of the Preservation Board or Planning Commission as to any matter regarding the landmark designation may be taken within 30 days of the filing of such decision by any person aggrieved or by any authorized officer, department, bureau, board or commission of the City in accordance with Article 78 of the New York Civil Practice Law and Rules.

§ 120-194 Procedures approved by the Preservation Board.

Certificate of appropriateness.

Authority. The Preservation Board shall have the authority to issue certificates of appropriateness within the City.

Preservation guidelines. The Preservation Board shall have the authority to develop and adopt preservation guidelines pursuant to the public hearing process set forth in this chapter. In certain cases, the Manager of Zoning may approve a certificate of appropriateness that complies with the preservation guidelines. Such preservation guidelines shall be kept on record with the Manager of Zoning.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Purpose. The certificate of appropriateness is intended to provide a procedure for the review of plans for work in preservation districts and on landmarks to ensure that such work will comply with standards established to preserve the integrity of any structure, improvement, landscape feature or cultural site that has been determined to merit special protection.

Certificate of appropriateness required.

It shall be unlawful for any person to perform, cause or permit any construction, alteration, remodeling, removal, movement or demolition of any structure, improvement, landscape feature or cultural site which has been designated a landmark or which is located within an area which has been designated as a preservation district.

No person shall secure or issue a permit authorizing any such work unless a certificate of appropriateness with respect to such work and, in the case of demolition of a principal structure, with respect to the new construction proposed to replace such structure shall have first been issued pursuant to this section.

Use of the alternate sign programs in preservation districts shall require a certificate of appropriateness.

The following shall require a certificate of appropriateness: parking areas in the side and front yard subject to the criteria set forth in § 120-191A(4) and side yard air-conditioning units and the like subject to the criteria set forth in § 120-191A(4)(c)[7].

[Amended 6-17-2003 by Ord. No. 2003-183; 7-27-2004 by Ord. No. 2004-240]

Activities exempt from certificate of appropriateness. A certificate of appropriateness shall not be required for the following, unless the site is a landmark:

Replacement of historic features precisely in kind, using like material in the same configuration, size, and degree of detail.

[Amended 9-21-2010 by Ord. No. 2010-323]

Interior renovations without landmark designated interior.

Exterior painting of previously painted structures when a color change is proposed.

Repairs, replacements, and routine maintenance that do not constitute alteration.

The removal of dead or diseased trees, as certified by a licensed arborist in writing to the Manager of Zoning.

[Amended 9-21-2010 by Ord. No. 2010-323; 6-20-2017 by Ord. No. 2017-170]

Improvements in the rear yard not deemed to be permanent as determined by the Manager of Zoning.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Certificate of appropriateness. In approving applications for certificates of appropriateness, the Preservation Board and its committees shall consider and evaluate the propriety of issuing the certificate in terms of its effect on the purposes for which landmarks and preservation districts are designated. In addition, the Board and its committees shall be guided by the following standards and considerations:

Properties within a preservation district. In reviewing applications for certificates of appropriateness in a preservation district, the Preservation Board shall consider quality of design and quality of site development, including but not necessarily limited to:

Visual compatibility. New and existing buildings and structures, and appurtenances thereof, which are moved, reconstructed, materially altered or repaired shall be visually compatible in terms of the following criteria:

Height. The height of the proposed buildings and structures shall be visually compatible with adjacent buildings.

Proportion of front facade. The relationship of the width to the height of the front elevation shall be visually compatible with buildings, public ways and places to which it is visually related.

Proportion of openings. The relationship of the width to height of windows shall be visually compatible with buildings, public ways and places to which the building is visually related.

Rhythm of solids to voids in front facades. The relationship of solids to voids in the front facade of a building shall be visually compatible with buildings, public ways and places to which it is visually related.

Rhythm of spacing and buildings on streets. The relationship of a building or structure to the open space between it and adjoining buildings or structures shall be visually compatible with the buildings, public ways and places to which it is visually related.

[f]

Rhythm of entrance porch and other projections. The relationship of entrances and other projections to sidewalks shall be visually compatible with the buildings, public ways and places to which it is visually related.

[g]

Relationship of materials, texture and color. The relationship of the materials, texture and color of the facade shall be visually compatible with the predominant materials used in the buildings and structures to which it is visually related.

[h]

Roof shapes. The roof shape of a building shall be visually compatible with the buildings to which it is visually related.

Walls of continuity. Building facades and appurtenances, such as walls, fences and landscape masses, shall, when it is a characteristic of the area, form cohesive walls of enclosure along a street, to ensure visual compatibility with the buildings, public ways and places to which such elements are visually related.

[j]

Scale of a building. The size and mass of buildings and structures in relation to open spaces, windows, door openings, porches and balconies shall be visually compatible with the buildings, public ways and places to which they are visually related.

[k]

Directional expression of front elevation. A building shall be visually compatible with the buildings, public ways and places to which it is visually related in its directional character, whether this be vertical character, horizontal character or nondirectional character.

Quality of design and site development.

The quality of the open spaces between buildings and in setback spaces between street and facade.

The quality of materials and their relationship to those in existing adjacent structures.

The quality of the design in general and its relationship to the overall character of the neighborhood.

The quality of the site development in terms of recreation, pedestrian access, automobile access, parking and servicing, and the retention of trees and shrubs to the extent possible.

Special considerations for existing buildings. For existing buildings the Board shall consider the availability of materials, technology and craftsmanship to duplicate existing styles, patterns, textures and overall detailing. When several acceptable alternatives are appropriate, costs may be considered by the Preservation Board.

Landmarks. In reviewing applications for certificates of appropriateness with respect to landmarks, the Preservation Board shall consider the following factors:

Standards. All the standards set forth in this section.

Color. The color shall be compatible with the style of the structure or improvement. Any change in color from the existing color at the time of designation shall be reviewed to ensure its appropriateness for the structure or improvement.

Exterior repairs. Any exterior repair shall be reviewed by the Board to ensure its compatibility with the original design concept of the structure.

Restorations. Any program of restoration shall be compatible with the original design, when the plans or other records exist, or with the general design of buildings of that era.

Interior repairs. Any interior repairs for buildings with interior landmark designation shall be compatible with the original design.

Procedures.

Application. Applications for certificates of appropriateness shall be submitted to the Manager of Zoning. Such applications shall be in such form and contain such information and documentation as shall be prescribed from time to time by the Manager of Zoning.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Other approvals required. Where the proposed application requires the issuance of a special permit, a variance or other approval, no final approval for a certificate of appropriateness shall be approved until the permit has been issued. The issuance of any such permit shall not be deemed to establish any right to the issuance of a certificate of appropriateness, which certificates shall be issued or denied solely on the basis of the standards established by this section.

Action by Manager of Zoning. The Manager of Zoning shall have the authority to issue certificate of appropriateness for improvements that conform to the Preservation Board's preservation guidelines.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Action by Preservation Board.

The Preservation Board shall have the authority to issue certificate of appropriateness for improvements that do not conform to the preservation guidelines.

Within 62 days following the conclusion of the public hearing, the Preservation Board shall render its decision that could include:

To approve the certificate of appropriateness.

To approve the certificate of appropriateness with modifications or subject to conditions.

To deny the certificate of appropriateness.

Where a rule of the Preservation Board, adopted pursuant to § 120-185, provides that specified applications shall be directed to a permanent or ad hoc committee of the Preservation Board, such applications shall be referred to such committee rather than to the entire Board. Where a committee is authorized to act, the vote of any two members of the committee shall be required and shall be sufficient to approve or deny a certificate. Such committee shall have a designated chairperson, take minutes of any meeting and report its decisions at the next full Preservation Board meeting.

Where a committee of the Preservation Board is authorized to act, such committee may, at any time prior to announcing its decision on a certificate of appropriateness, refer the application to the entire Preservation Board for decision. Applications so referred shall be processed as though on appeal to the Board pursuant to this section.

In passing upon such applications the Board or such committee shall be guided by the purposes for which landmarks and preservation districts are designated and by the particular standards and considerations set forth in this section. The failure of the Board or such committee to act within the specified time frame, or such longer period of time as may be agreed to by the applicant, shall be deemed a denial of the certificate of appropriateness.

Within 10 business days following the Board's or such committee's action or its failure to act within the specified time frame, the Manager of Zoning shall mail notice of such action to each of the persons entitled to such notice pursuant to § 120-188. In the event that a certificate is approved, the Manager of Zoning shall, within such time, issue the certificate, noting thereon any modifications or conditions imposed by the Board or such committee.

[Amended 6-17-2003 by Ord. No. 2003-183; 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Appeal from committee decision to Preservation Board.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

In any case where a committee of the Preservation Board is authorized to act as provided in this chapter and where an application for a certificate of appropriateness is denied or is approved with conditions that are unacceptable to the applicant, the applicant may appeal the decision of such committee to the entire Preservation Board by filing a notice of such appeal with the Manager of Zoning within 30 days following the committee's decision. Upon receipt of such notice, the Manager of Zoning shall forthwith transmit such notice to the Preservation Board together with all papers bearing thereon. Within 30 days following the receipt of such notice, the Preservation Board shall render its decision in the form specified by § 120-185.

Within 10 business days following the Board's action, or its failure to act within the aforesaid 30 days, the Manager of Zoning shall mail notice of such action to each person entitled to notice pursuant to § 120-188.

Emergency provisions.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

In any case where a City enforcement agency shall order or direct the construction, removal, alteration or demolition of any improvement which is a landmark or in a preservation district for the purpose of remedying conditions determined to be dangerous to life, health or safety, the Manager of Zoning shall issue a certificate of appropriateness to permit compliance with such order or direction. The certificate may require that the work not materially change or detract from the exterior appearance of the structure where the danger to life, health or safety may be abated without so changing or detracting from the exterior appearance.

The Manager of Zoning shall notify the Chairperson of the Preservation Board within 10 business days of issuance of a certificate of appropriateness for such emergency situations.

(9)

Limitation on certificates of appropriateness. A certificate of appropriateness shall become null and void one year after the date on which it was issued unless a building permit or certificate of zoning compliance is obtained and maintained. Where a violation of this chapter has been cited against the property which is the subject of the certificate of appropriateness, the Board may establish a shorter time limitation based on the nature and severity of the violation, taking into consideration the practical ability of the applicant to correct the violations in light of weather conditions, construction issues or other relevant factors.

[Amended 9-21-2010 by Ord. No. 2010-323]

(10)

Appeals.

An appeal of the decision to issue a certificate of appropriateness by the Manager of Zoning may be appealed to the Preservation Board within 30 days of the decision.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

An appeal from any final decision of the Preservation Board as to any matter regarding the certificate of appropriateness may be taken within 30 days of the filing of such decision by any person aggrieved or by any authorized officer, department, bureau, board or commission of the City in accordance with Article 78 of the New York Civil Practice Law and Rules.

Certificate of economic hardship.

Authority. The Preservation Board shall have authority to issue certificates of economic hardship in accordance with the provisions of this section.

Purpose. The certificate of economic hardship is intended to provide a means by which relief may be granted from a certificate of appropriateness decision that creates an economic hardship. The hardship procedure shall be utilized only in conjunction with the denial of a certificate of appropriateness application.

Certificate of economic hardship standards.

General. The Preservation Board shall have the power to vary or modify adherence to the standards for a certificate of appropriateness and issue certificates of economic hardship which shall function as a certificate of appropriateness when:

Based on extraordinary replacement or maintenance costs, there is a lack of reasonable return for income-producing property.

There is a lack of reasonable use for residential purposes for non-income-producing property.

Demolition. Specifically in the case of a demolition, the applicant is required to show the following:

That the property is incapable of earning a reasonable return, regardless of whether that return represents the most profitable return possible;

That the property cannot be adapted for any other use, whether by the current owner or by a purchaser, which would result in a reasonable return;

Efforts to find a purchaser interested in acquiring the property and preserving it have failed; and

That the claimed hardship is not self-imposed or self-created.

Procedure.

Application. Application for certificates of economic hardship shall be submitted to the Manager of Zoning within 30 days following the filing of a certificate of appropriateness decision by the Preservation Board. The application shall contain the following information and documentation:

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Form of ownership or operation of the property, whether sole proprietorship, for-profit or not-for-profit corporation, limited partnership, joint venture or other.

Amount paid for the property, the date of purchase and the party from which purchased, including a description of the relationship, if any, between the owner of record or applicant and the person from whom the property was purchased, and any terms of financing between the seller and the buyer.

Remaining balance on any mortgage or other financing secured by the property and annual debt service, if any, for the previous two years.

Any appraisals obtained within the previous two years by the owner or applicant in connection with the purchase, financing or ownership of the property or, if no such appraisal exists, a new appraisal and purposes for which money has/will be expended which the property has been used to secure.

Any listing of the property within the past two years for sale or rent, price asked and offer received, if any, and sale prices of properties of comparable size and/or construction in a rehabilitated condition.

If the property is income-producing, the annual gross income from the property for at least the previous two years, itemized income revenue, operating and maintenance expenses for the previous two years, and depreciation deduction and annual cash flow before and after debt service, if any, during the same period.

Assessed value of the property according to the two most recent assessments and assessment value of comparable property.

Real estate taxes and other governmental surcharges for the previous two years.

[9]

A report from a licensed engineer or architect with demonstrated experience in rehabilitation of historic structures as to the structural soundness of any structures on the property and their suitability for rehabilitation.

[10]

An appraisal of the market value of the property in its current condition, including estimates of market value after completion of the proposed construction, alteration or removal.

[11]

Cost estimates by three different contractors with demonstrated experience within the last five years in the rehabilitation of historic structures qualified to perform the proposed work as planned and as required.

[12]

In the case of a proposed demolition, an estimate from a licensed architect or engineer, or developer with demonstrated experience within the last five years in rehabilitation of historic structures, as to the economic feasibility of rehabilitation or reuse of the existing structure on the property; such professional may be asked to submit a listing of projects completed within the last five years.

[13]

Any other information considered necessary by the Preservation Board to make a determination on an applicant's claim of economic hardship.

Public hearing. For all certificates of economic hardship, a public hearing shall be set, advertised and conducted by the Preservation Board in accordance with § 120-188.

Action by the Preservation Board.

Within 62 days following the conclusion of the public hearing, the Preservation Board shall tender its decision and shall by written resolution, in the form specified in § 120-188, either:

Approve the certificate of economic hardship.

Approve the certificate of economic hardship subject to conditions.

Deny such certificate of economic hardship.

The failure of the Preservation Board to act within 62 days, or such longer period of time as may be agreed to by the applicant, shall be deemed a denial of the application. Within 10 business days of such decision or the expiration of such period, the Manager of Zoning shall mail notice of such decision or failure to act to all parties entitled.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Limitation on certificates of economic hardship. A certificate of economic hardship shall become null and void six months after the date on which it was issued unless a building permit is obtained and maintained.

Appeal. An appeal from any final decision of the Preservation Board as to any matter regarding the certificate of economic hardship may be taken within 30 days of the filing of such decision by any person aggrieved or by any authorized officer, department, bureau, board or commission of the City in accordance with Article 78 of the New York Civil Practice Law and Rules.

§ 120-195 Procedures approved by the Zoning Board of Appeals.

Administrative appeal.

Authority. The Zoning Board of Appeals shall hear and decide administrative appeals relating to each order, requirement, decision, interpretation or determination by the Manager of Zoning. In cases of administrative appeals, the Zoning Board of Appeals shall have the same powers and be subject to the same standards and limitations as the Manager of Zoning with respect to any order, requirement, decision, interpretation or determination being appealed.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Purpose of an administrative appeal. An administrative appeal provides redress by any person aggrieved or by any officer, department, board or bureau of the City affected by a decision of the Manager of Zoning.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Procedure.

Notice of appeal. A notice of appeal specifying the reasons for the appeal shall be made to the Zoning Board of Appeals within 60 days of each order, requirement, decision, interpretation or determination by the Manager of Zoning. The Manager of Zoning shall transmit to the Zoning Board of Appeals one copy of the notice of appeal, together with all papers constituting the record upon which the action appealed from was taken.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Public hearing. A public hearing shall be set, advertised and conducted by the Zoning Board of Appeals in accordance with § 120-188.

Action by Zoning Board of Appeals. Within 62 days following the close of the public hearing, the Zoning Board of Appeals shall render a decision on the appeal in the manner and form specified in § 120-186. Such decision may reverse, affirm or modify, in whole or in part, the action appealed and may include such order or determination as, in the opinion of the Zoning Board of Appeals, is proper to be made for the premises. The failure of the Board to act within such 62 days shall be deemed a denial of the appeal. Within 10 business days of such decision, or the expiration of such period, notice of such decision, or failure to act, shall be mailed by the Manager of Zoning to all parties entitled to such notice, pursuant to § 120-188.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Right to approve variance in deciding appeals. In any case where the administrative appeal is accompanied by an application for variance, in accordance with § 120-188, the Zoning Board of Appeals shall have the authority to approve, as part of the relief, a variance but only in strict compliance with each provision of said section.

Conditions and limitations on rights approved by appeal. In any case where this chapter imposes conditions or limitations upon any right, any such right approved by the Zoning Board of Appeals on administrative appeal shall be subject to such conditions and limitations in the same manner and to the same extent as if authorized without the necessity of an appeal.

Stay of proceedings. An appeal shall stay all proceedings in the furtherance of the action appealed from, unless the Manager of Zoning certifies to the Board of Appeals after the notice of appeal has been filed with him or her 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 the proceedings shall not be stayed other than by a restraining order, which may be granted by the Board of Appeals or by the Supreme Court on application, upon reasonable written notice to the Manager of Zoning and on due cause shown.

[Added 6-17-2003 by Ord. No. 2003-183[1]; amended 2-14-2006 by Ord. No. 2006-22; 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Editor's Note: This ordinance also renumbered former Subsection A(6) as A(7).

Appeals. An appeal from any final decision of the Zoning Board of Appeals as to any matter regarding the administrative appeal may be taken within 30 days of the filing of such decision by any person aggrieved or by any authorized officer, department, bureau, board or commission of the City in accordance with Article 78 of the New York Civil Practice Law and Rules.

Variance.

Authority. The Zoning Board of Appeals shall have the authority, in accordance with the procedures hereinafter established, to authorize use, area or other variances within the City. Minor deviations from this chapter may be permitted under the provisions for administrative adjustment pursuant to § 120-191.

Purpose. The variance procedure is intended to provide a means by which relief may be granted only when no other applicable remedy, pursuant to other provisions of this article, is available.

Use variances. Use variance shall mean the authorization by the Zoning Board of Appeals for the use of land for a purpose that is otherwise not allowed or is prohibited by the applicable zoning regulations. A use variance is approved subject to specific plans, terms and conditions. Modification of such plans, terms and conditions shall require approval by the Zoning Board of Appeals. The Zoning Board of Appeals shall have the authority to grant use variances to restore structures damaged or destroyed or establish a use of greater intensity as outlined in § 120-191. No use variance shall be approved unless the applicant shall establish that carrying out the strict letter of the provisions of this chapter would create unnecessary hardship. For purposes of this subsection, carrying out the strict letter of a provision of this chapter would cause unnecessary hardship if a variance permitted to be approved by this section would alleviate the hardship and if the applicant establishes the existence of each of the following conditions:

No reasonable return.

The subject lot or parcel is not capable of yielding a reasonable return if used for its present use or developed, redeveloped or used for any other use permitted by this chapter (and not prohibited by any other applicable law) in the district in which such lot or parcel is located.

Such inability to yield a reasonable return must be shown by specific fact, and the unsupported opinion of the owner or those appearing for him or her shall not be accepted as establishing such inability. Proof that the property cannot be used for its highest or best use under the regulations applicable to it or that it could be used more profitably if not subject to such regulations shall not, alone, be sufficient to establish such inability.

[Amended 2-14-2006 by Ord. No. 2006-22]

Unique circumstances.

The aforesaid inability to yield a reasonable return results from unique circumstances peculiar to the subject lot or parcel which do not apply to or affect other lots or parcels in the immediate vicinity that are subject to the same regulations, which amount to more than a mere inconvenience to the owner and which relate to or arise out of the lot or parcel rather than the personal situation of the current owner of the lot or parcel.

In all cases, proof of such unique circumstances shall include, as one of its elements, proof that the existing uses in the immediate vicinity of the subject lot or parcel are not of such nature and condition as to justify rezoning a reasonable area in the vicinity of the subject property to a classification that would permit the economic use and maintenance of the subject lot or parcel.

Not self-created. The aforesaid inability to yield a reasonable return is not the result of any action or inaction by the owner or their predecessors in title. Acquisition or improvement of the subject lot or parcel at any time after the enactment of the provision sought to be varied shall raise a rebuttable presumption that the owner's inability to realize a reasonable return is the result of his or her own actions.

[Amended 2-14-2006 by Ord. No. 2006-22]

Essential character of area; surrounding uses and facilities. The variance would not result in a use or development on the lot or parcel in question which would be materially detrimental to the public welfare or materially injurious to the enjoyment, use or development of property or improvements permitted in the vicinity; would materially impair an adequate supply of light and air to properties and improvements in the vicinity; would substantially increase congestion in the public streets due to traffic or parking or increase the danger of flood or fire; would unduly tax public utilities and facilities in the area; or would endanger the public health or safety.

No other remedy. There is no means other than the requested variance by which the hardship can be avoided or remedied to a degree sufficient to permit the economic use of the subject lot or parcel.

Area variances.

Area variance shall mean the authorization by the Zoning Board of Appeals for the use of land in a manner that is not permitted by regulations of this chapter related to:

A dimension, such as size, height and setbacks.

Physical requirements of this chapter.

The expansion, structural alteration or enlargement of a legally existing nonconforming use as outlined in § 120-191.

The waiver of the additional requirements for specified uses for permitted uses set forth in Article XVIII.

Any City-wide or Village Center design standard, excluding applications requiring a certificate of appropriateness.

[Amended 6-17-2003 by Ord. No. 2003-183; 7-19-2011 by Ord. No. 2011-247]

The waiver of the requirements for designated buildings of historic value in CCD as outlined in § 120-65B, excluding applications requiring a certificate of appropriateness.

[Added 7-19-2011 by Ord. No. 2011-247]

An area variance shall be granted only if the applicant establishes the existence of each of the following conditions:

[Amended 6-17-2003 by Ord. No. 2003-183]

Benefits. The benefit to the applicant if the variance is granted outweighs the detriment to the health, safety and welfare of the neighborhood or community by such grant.

Essential character of the area. No 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.

No other remedy. The benefit sought by the applicant can not be achieved by some method feasible for the applicant to pursue, other than the area variance.

Significance. The requested area variance is not substantial.

Physical and environmental conditions. The proposed variance will not have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.

Not self-created. The alleged difficulty was not self-created, the consideration of which shall be relevant to the decision of the Board of Appeals but shall not necessarily preclude the granting of the area variance.

Prohibited variances. Certain uses, by their nature, may have such an adverse impact on adjoining properties and neighborhoods as to jeopardize the purpose and goals of the zoning district in which the property is located. To protect neighborhoods from the establishment of such uses certain variances shall be absolutely prohibited. No variance shall be approved that would:

Permit any use or development in a residential district which is not permitted as of right by the use regulations applicable in such district or in any other residential district established by this chapter.

[Amended 12-20-2005 by Ord. No. 2005-394; 9-19-2012 by Ord. No. 2012-363]

Allow the conversion of a single-family residential structure in the R-1 District.

Permit conversion of a single-family residential structure to any nonresidential uses or increase the number of residential units in the R-1 District, except that a variance may be approved to permit the reestablishment of a prior legally established nonconforming use in a residential structure which has been abandoned as a result of vacancy or discontinuance or to permit the conversion of nonresidential floor area to a dwelling unit(s).

[Amended 12-20-2005 by Ord. No. 2005-394; 9-21-2010 by Ord. No. 2010-323; 2-21-2017 by Ord. No. 2017-30]

Permit the erection of an advertising sign in any district except where specifically permitted.

Permit the creation of an undeveloped lot or parcel with no preexisting principal structure(s) that cannot be developed in compliance with the zoning, subdivision and other regulations applicable thereto.

[Amended 7-27-2004 by Ord. No. 2004-240]

Permit the establishment of a sexually oriented business that is not permitted in that district.

Permit the construction of personal wireless telecommunication facilities (PWTF) on landmarks or a telecommunication tower in a preservation district.

Permit the establishment of an outdoor shooting range in any district.

[Added 7-19-2011 by Ord. No. 2011-247[2]]

Editor's Note: This ordinance provided an effective date of 9-1-2011.

Procedure.

Application. A variance may be sought only after a decision by the Manager of Zoning to deny a certificate of zoning compliance. An application for a variance may be filed by the owner of, or any other person having a contractual interest in, the subject property.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Action by Manager of Zoning.

[Amended 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Upon receipt of a completed application, the Manager of Zoning shall determine whether or not the variance requested is an administrative adjustment.

Upon the receipt of an application for a variance that, if approved, would require the applicant to subsequently obtain a certificate of appropriateness, the Manager of Zoning shall refer a copy of said application to the Preservation Board for its recommendation.

Action by the Zoning Board of Appeals.

In any case where the variance requested is not an administrative adjustment, a public hearing shall be set, advertised and conducted by the Zoning Board of Appeals in accordance with § 120-188.

Within 62 days following the close of the public hearing, the Zoning Board of Appeals shall render its decision, approving or denying the variance, in the manner and form specified by § 120-186. The failure of the Board to act within 62 days shall be deemed a denial of the variance.

[Amended 6-17-2003 by Ord. No. 2003-183]

Within 10 business days following such decision or the expiration of such period, the Manager of Zoning shall mail notice of such decision or failure to act to all persons entitled to such notice pursuant to § 120-186 and file such decision in the office of the City Clerk.

[Amended 6-17-2003 by Ord. No. 2003-183; 6-16-2009 by Ord. No. 2009-179; 6-20-2017 by Ord. No. 2017-170]

Conditions on variances. Specific conditions and safeguards relating to construction, character, location, landscaping, screening and other matters relating to the purposes and objectives of this chapter may be imposed upon the premises benefited by a variance as considered necessary to prevent injurious effects upon other property and improvements in the vicinity or upon public facilities and services. Such conditions shall be expressly set forth in the resolution approving the variance and in the notice informing the applicant thereof and in any zoning permit based thereon. Violation of such conditions and safeguards shall be a violation of this chapter.

Approval of variance other than requested variance. A variance offering less relief than that requested may be approved when the record supports the applicant's right to some relief but not to the relief requested.

Modifications to variances. No expansion or modification of a use or its operation that was originally approved by variance shall be permitted. except through the same process as required for initial approval of the variance.

[Added 6-17-2003 by Ord. No. 2003-183[3]]

Editor's Note: This ordinance also renumbered former Subsection B(6)(f) as B(8) and former Subsection B(7) and (8) as B(9) and (10), respectively.