Town of Niagara, NY Administration

Operation and organization. The Board of Appeals, consisting of five members as constituted and empowered under § 267, as amended, of the Town Law on the effective date of this code, shall be continued. Vacancies occurring in such Board shall be filled in accordance with the Town Law. The Board of Appeals shall have all the powers and perform all the duties prescribed by statute and by this code.

Permitted action. The Board of Appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, interpretation or determination appealed from and shall make such order, requirement, decision, interpretation or determination as in its opinion ought to have been made in the matter by the administrative official charged with the enforcement of such ordinance or local law, and to that end shall have all the powers of the administrative official from whose order, requirement or decision the appeal is taken.

(1)

Use variance.

(a)

The Board of Appeals, on appeal from the decision or determination of the administrative official charged with the enforcement of such ordinance or local law, shall have the power to grant a use variance, authorizing a use of the land which otherwise would not be allowed or would be prohibited by the terms of this code or local law.

(b)

No such variance shall be granted by the Board of Appeals without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship. In order to prove such unnecessary hardship the applicant shall demonstrate to the Board of Appeals that:

[1]

Under applicable zoning regulations the applicant is deprived of all economic use or benefit from the property in question, which deprivation must be established by competent financial evidence;

[2]

The alleged hardship relating to the property in question is unique and does not apply to a substantial portion of the district or neighborhood;

[3]

The requested use variance, if granted, will not alter the essential character of the neighborhood; and

[4]

The alleged hardship has not been self-created.

(c)

The Board of Appeals, in the granting of use variances, shall grant the minimum variance that it shall deem necessary and adequate to address the unnecessary hardship proven by the applicant, and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.

(2)

Area variances.

(a)

The Board of Appeals shall have the power, upon an appeal from a decision or determination of an administrative official charged with the enforcement of such ordinance or local law, to grant area variances from the area or dimensional requirements of such ordinance or local law.

(b)

In making its determination, the Board of Appeals shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant. In making such determination the Board shall also consider:

[1]

Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance;

[2]

Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;

[3]

Whether the requested area variance is substantial;

[4]

Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and

[5]

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

(c)

The Board of Appeals, in the granting of area variances, shall grant the minimum variance that it shall deem necessary and adequate and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.[1]

[1]

Editor’s Note: Former Subsection B(2)(d), regarding restrictions on specific variances, added 5-26-2004 by L.L. No. 2-2004, which immediately followed this subsection, was repealed 11-15-2016 by L.L. No. 2-2016.

(3)

Imposition of conditions. The Board of Appeals shall, in the granting of both use variances and area variances, have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed use of the property, or the period of time such variance shall be in effect. Such conditions shall be consistent with the spirit and intent of the zoning ordinance or local law, and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood community. Also, such variances shall become null and void unless exercised within one year from the date so granted.

Procedures.

(1)

Meetings, minutes, records. Meetings of such Board of Appeals shall be open to the public to the extent provided in Article 7 of the Public Officers Law. Such Board of Appeals shall keep minutes of its proceedings, showing the vote of each member upon every question or, if absent or failing to vote, indicating such fact, and shall also keep records of its examinations and other official actions.

(2)

Filing requirements. Every rule, regulation, every amendment or repeal thereof and every order, requirement, decision or determination of the Board of Appeals shall immediately be filed in the office of the Town Clerk and shall be a public record.

(3)

Assistance to Board of Appeals. Such Board shall have the authority to call upon any department, agency or employee of the municipality for such assistance as shall be deemed necessary and as shall be authorized by the Town Board.

(4)

Jurisdiction. Unless otherwise provided by local law or ordinance, the jurisdiction of the Board of Appeals shall be appellate only and shall be limited to hearing and deciding appeals, reviewing any order, requirement, decision, interpretation or determination made by an administrative official charged with the enforcement of any ordinance or local law adopted pursuant to this article. Such Board shall have the authority to call upon any department, agency or employee of the municipality for such assistance as shall be deemed necessary and shall be authorized by the Town Board. Such department, agency or employee shall be reimbursed for any expenses incurred as a result of such assistance. The concurring vote of a majority of the members of the Board of Appeals shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or to grant a use variance or area variance. Such appeal may be taken by any person aggrieved or by an officer, department, board or bureau of the Town.

(5)

Time of appeal. Such appeal shall be taken within 60 days after the filing of any order, requirement, decision, interpretation or determination of the administrative officer charged with the enforcement of such ordinance or local law by filing with such administrative official and with the Board of Appeals a notice of appeal, specifying the grounds thereof and the relief sought. The administrative official from whom the appeal is taken shall forthwith transmit to the Board of Appeals all the papers constituting the record upon which the action appealed from was taken. The cost of sending or publishing any notices relating to such appeal shall be borne by the appealing party and shall be paid to the Board prior to the hearing of such appeal.

(6)

Stay upon appeal. An appeal shall stay all proceedings in furtherance of action appealed from unless the administrative official charged with the enforcement of such ordinance or local law, from whom the appeal is taken, certifies to the Board of Appeals, after the notice of appeal shall have been filed with the administrative official, that by reason of facts stated in the certificate a stay would, in his or her opinion, cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order, which may be granted by the Board of Appeals or by a court of record on application, on notice to the administrative official from whom the appeal is taken and on due cause shown.

(7)

Hearings. The Board of Appeals shall fix a reasonable time for the hearing of the appeal or other matter referred to it and give public notice thereof by the publication in a paper of general circulation in the Town at least five days prior to the date thereof. The Zoning Officer shall, at least five days prior to the date of hearing, give written notice to the Board of Appeals that all property owners within 250 feet of the property to be affected have been notified of said appeal. The written notice may be a document signed by the respective landowners, or a copy of the correspondence the applicant sent to the landowners with the return receipt affixed to same.

[Amended 8-15-2017]

(8)

Time of decision. The Board of Appeals shall decide upon the appeal within 62 days after the conduct of said hearing. The time within which the Board of Appeals must render its decision may be extended by mutual consent of the applicant and the Board.

(9)

Filing of decision. The findings of facts and the decision of the Board of Appeals on the appeal shall be filed in the office of the Town Clerk within five business days after the day such decision is rendered, and a copy thereof mailed to the applicant.

(10)

State Environmental Quality Review Act (SEQRA). The Board of Appeals shall comply with the provisions of the State Environmental Quality Review Act under Article 8 of the Environmental Conservation Law and its implementing regulations as codified in Title 6, Part 617 of the New York Codes, Rules and Regulations.