[HISTORY: Adopted Malone Village Board 2-6-1984 by Local Law
No. 2, 1984.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 66.
[1]
Editor's Note: This local law also repealed former Ch.
68, Zoning Board of Appeals Procedural Rules, adopted 4-26-1976 by
L.L. No. 2, 1976.
There is hereby continued in the Village of Malone, New York,
a Zoning Board of Appeals of the Village of Malone, New York, pursuant
to the authority conferred upon the Village of Malone by § 7-712
of the Village Law of the State of New York and all laws amendatory
thereof and supplementary thereto.
The Zoning Board of Appeals of the Village of Malone, New York,
shall be governed by the provisions of all state statutes, local laws
and these rules.
For the purposes of this chapter, the following terms shall
have the meaning indicated:
The duly appointed Zoning Board of Appeals of the Village
of Malone, New York.
The duly elected Board of Trustees of the Village of Malone,
New York.
The duly appointed Building Inspector of the Village of Malone,
New York.
The Code of the Village of Malone, New York.
The Village of Malone, New York.
The Board is appointed by the Board of Trustees of the village
and seeks to serve all the people of the village. The members serve
without compensation. In that spirit, they will be happy at any meeting,
time permitting, to discuss informally such questions relating to
zoning as may be of interest to any village resident. The Board will
extend every possible courtesy to those appearing before it and will,
of course, demand the same treatment, not alone for itself and its
members, but for others having occasion to be heard.
A.Â
The Board shall consist of five members, each of whom shall be appointed
by the Board of Trustees. Each member so appointed shall serve for
a term of five years, and the said terms shall expire at the end of
the last day of the official village year. Those three members of
the existing Board who remain in office as of the effective date of
this chapter shall continue in office through the expiration of the
terms to which they were appointed. Thereafter, the terms of their
successors shall expire in accordance with the provisions of this
chapter. In the event that any member of the existing Board shall
resign, die or be removed from office prior to the expiration of his
term, a successor shall be appointed only for a period running through
the end of the last day of the official village year in which the
unexpired term would normally have expired.
B.Â
One of the two new members shall be appointed for a term ending at
the end of the last day of the official village year in 1987 and the
other for a term ending at the end of the last day of the official
village year in 1988. Thereafter, the terms of their successors shall
expire in accordance with the provisions of this chapter.
C.Â
The Board of Trustees shall have the power to remove any member of
the Board for good cause shown after a public hearing. Vacancies shall
be filled by the Board of Trustees for the unexpired term of a member
whose seat has been vacated for any reason.
D.Â
None of the members of the Board shall be members of the Board of
Trustees or hold any elective office in and for the village.
E.Â
The Board of Trustees shall also appoint two alternate members of
the Board. One such alternate shall serve as an acting member of the
Board at any time when the Board is reduced in number for any reason.
Insofar as it is practical, the alternate members should rotate assignments
as acting members of the Board. The alternate members of the Board
shall serve terms of five years, which terms shall expire at the end
of the last day of the official village year.
The officers of the Board shall consist of a Chairman, Deputy
Chairman and Secretary. The officers shall be designated by the Board
of Trustees annually and shall serve for a term of one year.
The Chairman shall perform all of the duties required by statute,
local law or the rules of the Board and shall preside at all of the
meetings of the Board. The Chairman may appoint any committees necessary
to carry out the business of the Board and may administer oaths and
compel the attendance of any witness necessary to carry out the business
of the Board. The signature of the Chairman shall be the official
signature of the Board.
The Deputy Chairman shall serve in the absence of the Chairman.
He shall also have all of the powers and responsibilities of the Chairman
during the absence, disability or disqualification of the Chairman.
The Secretary shall keep minutes of all of the meetings and
proceedings of the Board, keep a record of those members of the Board
present at each meeting and their votes upon any matter and shall
keep minutes of all examinations of any witness appearing before the
Board.
The Village Attorney shall be the attorney for the Board. He
shall render such professional services and advice as the Board may
require. In the event that the Village Attorney shall disqualify himself
in any proceeding before the Board for any reason, the Chairman may,
at the request of the Board, so report to the Board of Trustees and
request the services and advice of another attorney in such proceeding.
A.Â
All meetings of the Board shall be open to the public and shall be
held on the dates and at the times and places designated by the Chairman
or on such other dates and at such other times and places as the Board
may decide by majority decision.
B.Â
The Board shall, insofar as it shall not be inconsistent with this
chapter or statute, determine its own rules and procedure, and all
of its deliberations, resolutions and orders shall be in accordance
therewith.
No hearing or meeting shall be held, nor any action taken, in
the absence of a quorum. A quorum shall consist of a majority of the
entire membership of the Board. However, those members of the Board
present at any meeting of the Board attended by less than a quorum
may request the Chairman to call a meeting on a subsequent date. All
subsequent proceedings shall be readvertised in accordance with the
requirements of applicable law.
No member of the Board shall vote on the determination of any
matter requiring a public hearing unless he shall have attended the
public hearing.
A.Â
All matters shall be decided by a roll call vote. The concurring vote of a majority of the entire membership of the Board shall be necessary to reverse any order, requirement, decision or determination of any administrative official charged with the enforcement of Chapter 66 of the Code; to decide in favor of the applicant on any matter upon which it is required to pass under Chapter 66 of the Code or this chapter; or decide any other matter. A tie vote shall mean the rejection or denial of the appeal or application under consideration.
B.Â
Every order, requirement, decision or determination of the Board
shall be filed in the office of the village, which shall be the office
of the Board, and shall be a public record. The date of the filing
of each decision shall be entered in the official records and minutes
of the Board.
Decisions of the Board shall be made not later than 62 days
from the date of the final hearing. The final decision on any matter
before the Board shall be made in a written order signed by the Chairman.
Such decision shall state the findings of fact which were the basis
for the Board's determination. The decision shall also state
any conditions and safeguards necessary to protect the public interest.
A.Â
The Board shall hear and decide appeals from and shall review any order, requirement, decision, determination or opinion made by the Building Inspector or any other administrative official charged with the enforcement of the regulations established by Chapter 66 of the Code. The Board shall also hear and decide all matters referred to it or upon which it is required to pass under any statute or Chapter 66 of the Code.
B.Â
Such an appeal may be taken by any person aggrieved or by his agent
or by any officer, department, board or bureau of the village.
A.Â
Where there are practical difficulties or unnecessary hardships in the way of carrying out the provisions of Chapter 66 of the Code, the Board shall have the power, in passing upon appeals to it, to vary or modify the provisions of Chapter 66 relating to the use, construction or alteration of buildings or structures or the use of land, so that the spirit of Chapter 66 shall be observed, public safety and welfare secured and substantial justice done by granting:
(1)Â
An area variance, where practical difficulty or unnecessary hardship
is involved with regard to frontage, setback, lot size, density and
yard requirement; or
(2)Â
A use variance, where practical difficulty or unnecessary hardship
have been proven to show that:
(a)Â
The land in question cannot yield a reasonable return if used
only for a purpose allowed in that zone.
(b)Â
The plight of the owner is due to unique circumstances and not
to the general conditions in the neighborhood.
(c)Â
The use to be authorized by the variance will not alter the
essential character of the locality.
(3)Â
An area variance or use variance, as required, where the property
of the applicant lies across the boundary of two districts, in order
to allow the applicant's property to be used for any permitted
use or any use permitted by special exception in either district so
long as the less restrictive use does not extend into the more restricted
district, more than a reasonable distance but generally not to exceed
50 feet.
[Added 12-15-1986 by L.L. No. 4, 1986]
B.Â
In granting a variance pursuant to this section, the Board may attach
such conditions to the variance as it in its judgment deems appropriate.
When the Board attaches such conditions upon the granting of a variance,
it shall direct that the Building Inspector monitor the adherence
to such conditions and report any violations to the Board and to the
Board of Trustees immediately. The said Building Inspector shall file
with the Board an annual report on adherence to such conditions throughout
the village.
C.Â
Special exceptions. When in its judgment the public convenience and welfare will be substantially served and the appropriate use of neighboring property will not be injured thereby, the Board may in any specific case, after due notice and public hearing and subject to appropriate conditions and safeguards, determine and value the application of the regulations of Chapter 66 in harmony with its general purposes and intent, as follows:
[Amended 12-15-1986 by L.L. No. 4, 1986]
An appeal shall be taken within 30 days of the action of the
Building Inspector or other administrative official being appealed
from. Any appeal not so taken shall not be entertained by the Board.
An appeal shall be taken by filing with the Building Inspector or
other administrative official a notice of appeal. Said notice of appeal
shall identify the action of the Building Inspector or administrative
official appealed from, the date of that action, and the grounds upon
which the appeal is based. The Building Inspector or other administrative
official from whom the appeal is taken shall forthwith transmit to
the Chairman of the Board, through the Clerk of the Village, all of
the papers constituting the record upon which the action appealed
from was taken.
An appeal stays all proceedings in furtherance of the action
appealed from, unless the officer from whom the appeal is taken certifies
to the Board after the notice of appeal shall have been filed with
him that, by reason of facts stated in the certificate, a stay would,
in his 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 or by a court of record upon
application, on notice to the officer from whom the appeal is taken
and on due cause shown.
There shall be furnished to the Chairman of the Board six copies
of a record on appeal, containing the required information and data,
at least 10 days prior to the scheduled hearing upon such appeal.
No appeal shall be heard unless a record on appeal is so furnished
to the Chairman. If no record on appeal is so furnished within the
time prescribed herein, the appeal shall be denied, subject to renewal
upon supplying a sufficient record on appeal to the Chairman, or adjourned
at the discretion of the Board. Upon receipt thereof, the Chairman
shall distribute the record upon appeal to the members of the Board
and to the Village Attorney.
The record on appeal shall consist of the following material
in regard to the following matters:
A.Â
Appeals regarding any yard, court or area requirement of Chapter 66.
(1)Â
A copy of the letter, opinion, decision, requirement or ruling appealed
from.
(2)Â
A written executed petition stating in detail all of the pertinent
facts relating to the appeal, including the date of construction of
any building located on the subject property, and stating the grounds
for the appeal.
(3)Â
A plot plan, survey or diagram of the subject premises, accurately
showing the dimensions of all actual or proposed structures on the
subject premises, the distance of all actual or proposed side yards,
rear yards, front yards, courts, driveways, abutting streets and,
except for appeals involving court areas or locations, the distance
from the side and rear lot lines to existing structures, if any, on
adjoining properties closer than 300 feet to said lot lines. If such
an appeal is based upon practical difficulties arising out of topographical
conditions, such as differences in elevation, streams or outcropping
of rocks or the like, the plot plan or survey should sufficiently
indicate the nature and extent of such conditions.
(4)Â
Petitions for waiver and/or modifications of the above requirements
may be submitted along with the application for review.
B.Â
Appeals regarding any use requirements of Chapter 66.
(1)Â
A copy of the letter, opinion, decision or requirement appealed from.
(2)Â
A written executed petition stating in detail all the pertinent facts
relating to the appeal, including the date of acquisition of the subject
property by the appellant or his principal, and stating the grounds
therefor.
(3)Â
A diagram indentifying the property upon which the the use will be
located and the types and number of uses, if any, within a radius
of 1,000 feet of proposed use.
(4)Â
Petitions for waiver and/or modification of the above requirements
may be submitted along with the application for review.
C.Â
(1)Â
A copy of the letter, opinion, decision, requirement or ruling appealed
from, if any.
(2)Â
A written executed petition stating in detail all pertinent facts
relating to the appeal or application and the grounds or reasons for
the appeal.
(3)Â
Any other information or data that the Board may reasonably require
after the public hearing.
(4)Â
Petitions for waiver and/or modification of the above requirements
may be submitted along with the application for review.
D.Â
Any record on appeal may be supplemented by a memorandum of law or
any other information or data the applicant feels may support or explain
the appeal.
The Board may require any additional information it deems necessary
to act upon any appeal or application after the public hearing thereon.
A filing fee of $50 shall be deposited with the Village Clerk
at the time of the filing of the notice of appeal or application for
a use variance. A filing fee of $25 shall be deposited with the Village
Clerk at the time of the filing of the notice of appeal or application
for any other variance or relief. If any appeal is denied, subject
to renewal upon the filing with the Chairman of a sufficient record
on appeal, an additional sum of $50 for a use variance and $25 for
any other variance or relief shall be deposited with the Village Clerk
before such appeal shall be scheduled for a rehearing.
The Board shall give notice of hearing by mailing a written
notice thereof to the applicant or to his attorney by regular mail,
and by publishing such notice twice in the official newspaper of the
village. Additionally, such notice shall be mailed to all such property
owners whose premises adjoin those of the appellant and such other
property owners as the Board in its discretion deems advisable. The
notice of hearing shall state the location of the building or property
involved, the data, time and place of the hearing and the nature of
the relief sought. Such notice shall be mailed and first publication
take place at least 10 days prior to the scheduled hearing date.
A.Â
Upon a motion initiated by any member of the Board and adopted by
unanimous vote of the members present, but not less than a majority
of the entire membership of the Board, the Board shall review at a
rehearing any order, decision or determination of the Board not previously
reviewed. Notice shall be given as upon an original hearing. Upon
such rehearing, and provided that it shall appear that no vested rights
due to reliance on the original order, decision or determination will
be prejudiced thereby, the Board may, upon the concurrence of all
the members present, reverse, modify or annul its original order,
decision or determination.
B.Â
An application for a rehearing may be made in the same manner as
that provided for the original appeal. The application for a rehearing
may be denied by the Board if, from the record, it shall appear that
there has been no substantial change in facts, evidence or conditions.
If any section of this chapter or any part of a section or paragraph of this chapter is declared invalid or unconstitutional,
it shall not be held to invalidate or impair the validity, force or
effect of any other section or sections or part of a section or paragraph
of this chapter.
This chapter shall take effect immediately.
