There is hereby established a Zoning Board of Appeals having the powers authorized under the New York State Town Law, as provided under Chapter 38 of the Town of Rochester Code. Said Board shall consist of five members of staggered five-year terms, including a chairperson, appointed by the Town Board. Appointments shall be in accordance with the New York State Town Law, and an appointment to a vacancy occurring prior to the expiration of a term shall be for the remainder of the unexpired term. In the absence of a Town Board appointment of a chairperson, the Board of Appeals may designate a member to serve as acting chairperson. The Town Board may also provide for compensation to be paid to experts, clerks and a secretary and provide for such other expenses as may be necessary and proper. In making such appointments, the Town Board may further require Board of Appeals members to complete training and continuing education courses.
A.
The Zoning Board of Appeals may reverse or affirm, wholly or partly,
or may modify the order, requirement, decision, interpretation or
determination as in its opinion ought to have been made in the matter
by the administrative official(s) charged with the enforcement of
this chapter and to that end shall have all powers of the administrative
official(s) from whose order, requirement, decision, interpretation
or determination the appeal is taken.
B.
Use variances.
(1)
The Zoning Board of Appeals, on appeal from the decision or determination
of the administrative officials charged with the enforcement of this
chapter, shall have the power to grant use variances, as defined herein.
(2)
No such use variance shall be granted by a Zoning Board of Appeals
without a showing by the applicant that applicable regulations and
restrictions of this chapter have caused unnecessary hardship. In
order to prove such unnecessary hardship the applicant shall demonstrate
to the Zoning Board of Appeals that:
(a)
He or she cannot realize a reasonable return, provided lack
of return is substantial as demonstrated by competent financial evidence;
(b)
The alleged hardship relating to the property in question is
unique, and does not apply to a substantial portion of the district
or neighborhood;
(c)
The requested use variance, if granted, will not alter the essential
character of the neighborhood; and
(d)
The alleged hardship has not been self-created.
(3)
The Zoning Board of Appeals, in the granting of use variances, shall
grant the minimum variance that it shall deem necessary and adequate
to address the unnecessary hardship proven by the applicant, and at
the same time preserve and protect the character of the neighborhood
and the health, safety and welfare of the community.
C.
Area variances.
(1)
The Zoning Board of Appeals shall have the power, upon an appeal
from a decision or determination of the administrative officials charged
with the enforcement of this chapter, to grant area variances as defined
herein.
(2)
In making its determination, the Zoning Board of Appeals shall take
into consideration the benefit to the applicant if the variance is
granted, as weighed against the detriment to the health, safety and
welfare of the neighborhood or community by such grant. In making
such determination the Board of Appeals shall also consider:
(a)
Whether an undesirable change will be produced in the character
of the neighborhood or a detriment to nearby properties will be created
by the granting of the area variance;
(b)
Whether the benefit sought by the applicant can be achieved
by some method, feasible for the applicant to pursue, other than an
area variance;
(c)
Whether the requested area variance is substantial;
(d)
Whether the proposed variance will have an adverse effect or
impact on the physical or environmental conditions in the neighborhood
or district; and
(e)
Whether the alleged difficulty was self-created, which consideration
shall be relevant to the decision of the Zoning Board of Appeals,
but shall not necessarily preclude the granting of the area variance.
(3)
The Zoning Board of Appeals, in the granting of area variances, shall
grant the minimum variance that it shall deem necessary and adequate
and at the same time preserve and protect the character of the neighborhood
and the health, safety and welfare of the community.
D.
The Zoning Board of Appeals shall, in the granting of both use variances
and area variances, have the authority to impose such reasonable conditions
and restrictions as are directly related to and incidental to the
proposed use of the property, and/or the period of time such variance
shall be in effect. Such conditions shall be consistent with the spirit
and intent of this chapter, and shall be imposed for the purpose of
minimizing any adverse impact such variance may have on the neighborhood
or community.
A.
All meetings of the Zoning Board of Appeals shall be held at the
call of the Chairperson and at such other times as such Board may
determine. Such Chairperson, or in his or her absence the acting Chairperson
may administer oaths and compel the attendance of witnesses.
B.
Meeting of the Zoning Board of Appeals shall be open to the public
to the extent provided in Article 7 of the Public Officers Law. The
Board 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.
C.
Every rule, regulation, every amendment or repeal thereof, and every
order, requirement, decision or determination of the Board of Appeals
shall be filed in the office of the Town Clerk within five business
days and shall be a public record. Every decision of the Zoning Board
of Appeals shall be made by resolution and include findings establishing
the basis of the decision.
D.
The Zoning Board of Appeals shall have the authority to call upon
any department, agency or employee of the Town for such assistance
as shall be deemed necessary and as shall be authorized by the Town
Board. It shall also have authority to refer matters to the Town Planning
Board for review and recommendation prior to making a decision.
E.
Except as otherwise provided herein, the jurisdiction of the Zoning
Board of Appeals shall be appellate only and shall be limited to hearing
and deciding appeals from and reviewing any order, requirement, decision,
interpretation, or determination made by the administrative officials
charged with the enforcement of this chapter. The concuming vote of
three members of the Zoning 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.
F.
Such appeal shall be taken within 60 days after the filing of any
order, requirement, decision, interpretation or determination of the
administrative officials charged with the enforcement of this chapter
by filing with such administrative official and with the Zoning Board
of Appeals a notice of appeal, specifying the grounds thereof and
the relief sought. The administrative official(s) from whom the appeal
is taken shall forthwith transmit to the Board of Appeals all papers
constituting the record for the action appealed.
G.
An appeal shall stay all proceedings in furtherance of the 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 Zoning Board of Appeals, after the notice
of appeal shall have been filed with the administrative office, 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 Zoning 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.
H.
The Zoning Board of Appeals shall fix a reasonable time, no more
than 62 days following application, for the hearing of the appeal
or other matter referred to it and give public notice of such hearing
by publication in a paper of general circulation in the Town at least
five days prior to the date thereof. Notice shall be provided, using
the same notice used in the public advertisement, to all property
owners within 500 feet of the parcel boundary as identified in the
latest tax assessment records of the Town of Rochester, including
those for properties on the opposite side of any public or private
road. Such notice shall be given by the Town at the expense of the
applicant by regular mail postmarked at least seven calendar days
in advance of such hearing. 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.
Upon the hearing, any party may appear in person, or by agent or attorney.
The hearing shall be conducted in accordance with rules of the Zoning
Board of Appeals. Such rules shall permit cross-examination by parties,
provide for evidentiary procedures and allow for rehearings on the
unanimous vote of the members present.
I.
The Zoning Board of Appeals shall decide upon the appeal within 62
days after the close of said hearing. The time within which the Board
of Appeals must render its decision may, however, be extended by mutual
consent of the applicant and the Board.
J.
The decision of the Zoning 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.
K.
At least five days before such hearing, the Zoning Board of Appeals
shall mail notices thereof to the parties to the regional state park
commission having jurisdiction over any state park or parkway within
500 feet of the property affected by such appeal; and to the Ulster
County Planning Department, as required by § 239-m of the
General Municipal Law. No Zoning Board of Appeals decision shall be
made except in conformance with such § 239-m procedures
including requirements for an affirmative vote of no less than four
members of the Board if it shall determine to approve an application
which the County has recommended it disapprove or modify.