[Amended 5-15-2006 by L.L. No. 2-2006]
A.
Pursuant to the provisions of the Town Law applicable hereto, there
is hereby established a Zoning Board of Appeals consisting of five
regular members and two alternate members, each appointed by the Town
Board. The Zoning Board of Appeals, consistent with the provisions
of the Town Law, shall determine its own rules, conduct and procedure,
except that the Town Board shall appoint its Chairman.[1]
B.
Alternate members.
(1)
The Town Board may appoint two alternate members to the Zoning Board
of Appeals, which the Town Board shall designate as the "first alternate"
and "second alternate."
(2)
The first alternate member so appointed shall serve for a term expiring
three years from the end of the official year in which he is appointed,
and his successors shall serve for a term of three years from and
after the expiration of the terms of their predecessors in office.
The second alternate member so appointed shall serve for a term expiring
two years from the end of the official year in which he is appointed,
and his successors shall serve for a term of three years from and
after the expiration of the terms of their predecessors in office.
Should a vacancy occur for reason other than the natural expiration
of a term, the Town Board may fill the vacancy for the unexpired term.
(3)
All provisions of state law related to Zoning Board of Appeals member
eligibility, vacancy in office, removal, compatibility of office and
service on other boards, as well as any provisions of a local law
related to training, continuing education, compensation and attendance
shall also apply to alternate members. The Town Board shall have the
power to remove any alternate member of the Board of Appeals for cause
and after a public hearing.
C.
Voting.
(1)
The normal voting members of the Board of Appeals shall be the five
regular members. If any regular member is unable to participate in
a matter(s) or meeting(s) due to a conflict of interest, illness or
absence for other reason, the Chairman of the Board of Appeals may
designate the first alternate member to participate in the deliberations
and action of the Board of Appeals on such matter(s), and he shall
have all the powers and duties of a duly appointed member of the Board
of Appeals for the matter(s) under consideration. Such designation
shall be entered into the minutes of the meeting at which the substitution
is made.
(2)
Whenever two or more regular members of the Board of Appeals, or
one regular member plus the first alternate member thereof, are unable
to participate in a matter(s) or meeting(s) due to a conflict of interest,
illness or absence for other reason, the Chairman of the Board of
Appeals may designate the second alternate member to participate in
the deliberations and action of the Board of Appeals on such matter(s),
and he shall have all the powers and duties of a duly appointed member
of the Board of Appeals for the matter(s) under consideration. Such
designation shall be entered into the minutes of the meeting at which
the substitution is made.
The Zoning Board of Appeals shall have all the powers and duties
prescribed by law and by this chapter, more particularly specified
as follows:
A.
Review. The Zoning Board of Appeals, consistent with the provisions
of the Town Law, shall hear and decide all appeals from and review
any order, requirement, decision or determination made by the Code
Enforcement Officer charged with enforcement of this chapter, including
the interpretation of this chapter. It shall also hear and decide
all matters referred to it or upon which it is to pass under this
chapter or any other local law.
B.
Variances. The Board of Zoning Appeals may grant variances as follows:
[Amended 8-4-2003 by L.L. No. 2-2003; 2-4-2004 by L.L. No.
1-2004]
(1)
Use variances.
(a)
The Board of Appeals, on appeal from the decision or determination
of the Code Enforcement Officer charged with the enforcement of the
Zoning Law, shall have the power to grant use variances authorizing
a use of the land which otherwise would not be allowed or would be
prohibited by the terms of this chapter.
(b)
No such use 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]
The applicant cannot realize a reasonable return, provided that
lack of return is substantial as demonstrated 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 Zoning Board of Appeals shall have the power, upon an appeal
from a decision or determination of the Code Enforcement Officer charged
with the enforcement of this chapter, to grant area variances from
the area or dimensional requirements of such chapter.
(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 consider whether:
[1]
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]
The benefit sought by the applicant can be achieved by some
method feasible for the applicant to pursue other than an area variance;
[3]
The requested area variance is substantial;
[4]
The proposed variance will have an adverse effect or impact
on the physical or environmental conditions in the neighborhood or
district; and
[5]
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.
(3)
Imposition of conditions.
(a)
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 this chapter and shall be imposed for the purpose of
minimizing any adverse impact such variance may have on the neighborhood
or community.
(b)
All variances shall be subject to the following conditions:
[1]
In the event the variance is not used within four months of
the date it is granted, then the variance shall be revoked and a new
petition shall be required.
[2]
In the event the variance is used but the property to which
it applies is not used thereafter or is vacant for a period of one
year, or the property is used but the variance ceases to be used for
a period of one year, the variance shall cease.
[3]
Proof that a copy of the variance has been filed in the County
Clerk's office under miscellaneous records shall be provided
to the Code Enforcement Officer before the use or development for
which a variance is granted shall begin. The cost and responsibility
of filing shall be borne by the applicant.
C.
Special use permits. When in the judgment of the Zoning Board of
Appeals the public convenience and welfare will be substantially served
and the appropriate use of the neighboring property will not be injured
thereby, the Zoning Board of Appeals may, in appropriate and specific
instances after public notice and hearing and subject to appropriate
conditions and safeguards, grant a special use permit whenever it
is provided in this chapter that the approval of the Zoning Board
of Appeals is required, or refuse to grant the same or take such action
as is justified, provided that, in the event that it refuses to grant
such a permit, the Zoning Board of Appeals provides written findings
of the reasons for such refusal. Such special use permit shall be
used only in accordance with the general standards and rules set forth
as follows:
(1)
Such special use shall comply with all applicable regulations of
this chapter for the district within which it is to be located, except
as waived by the Zoning Board of Appeals.
(3)
Such special use shall comply with any conditions deemed necessary
by the Zoning Board of Appeals (e.g., access roads, fences, landscaping,
etc.) in order to protect the value of adjacent properties and promote
the orderly development of the surrounding area.
(4)
In the event that a special permit is not utilized within four months
of it having been granted, then the special use permit shall be revoked
and a new petition must be filed for any subsequent permit.
(5)
In the event that the special permit is utilized but the property
in which it is located is not used for a period of one year or the
property used by the special use permit ceases to be used for a period
of one year, then the special use permit shall cease.
(6)
The special use permit is a personal right to the applicant to whom
it is granted, and it shall not be conveyed or assigned to another
party.
(7)
No special permit shall be issued for a period in excess of three
years or for any period of less than six months.
(8)
A special use permit may be renewed only upon petition to the Zoning
Board of Appeals.
(9)
Proof that the special use permit has been filed in the miscellaneous
records section of the County Clerk's Office shall be presented
to the Code Enforcement Officer before the use or development for
which a special use permit is granted shall begin.
A.
The Zoning Board of Appeals shall act in strict compliance and accordance
with the procedures specified in this chapter and those specified
by law. All appeals and applications to the Zoning Board of Appeals
shall be in writing and be designated as "petitions," on such form
or forms as shall be prescribed by the Zoning Board of Appeals. Every
appeal or application shall refer to the specific provision of this
chapter involved and shall exactly set forth the interpretation that
is claimed, the use for which the special use permit is sought, or
the details of the variance that is applied for and the grounds on
which it is claimed that the variance should be granted, as the case
may be.
B.
At least 10 days before the date of the hearing required by law and
on application or appeal to the Zoning Board of Appeals, the secretary
of said Board shall transmit to the Planning Board a copy of said
application or appeal, and the Planning Board shall submit a report
of such advisory opinion prior to the date of such hearing. Upon failure
to submit such report, the Planning Board shall be deemed to have
rendered no opinion. Every decision of the Board of Appeals shall
be by resolution, each of which shall contain a full record of the
findings of the Board of Appeals on a particular case.
C.
In addition to giving notice as prescribed by Town Law, the Town
Clerk shall send notice by mail to all property owners, as shown on
the assessment role of the Town of Busti, who own property located
within 500 feet of the property in questions, provided that, in the
event the property is bounded both north of Hunt Road and northwest
of the Conrail Railroad tracks in the Town of Busti, such notice shall
only be sent to property owners as shown on the, assessment role of
the Town of Busti who own property located within 250 feet of the
property in question. In the absence of bad faith or deliberate intent,
the failure to send notice to less than 50% of the property owners
shall not invalidate the action of the Zoning Board of Appeals. If
the applicant files with the Zoning Board of Appeals a signed consent
for such special permit or variance signed by more than 50% of the
affected owners, or if the applicant filed or is requested to file
an affidavit that he has served notice by mail or in person to all
such property owners, the Town Clerk shall be relieved of the duty
to mail or send notices to such property owners.
A.
Before issuing a special permit or granting a variance affecting
any real property lying within a distance of 500 feet of the boundary
of the Town of Busti from the boundary of any existing or proposed
county or state park or other recreation area or from the right-of-way
of any existing or proposed county or state parkway, thruway, expressway,
road or highway or from the existing or proposed right-of-way of any
stream or drainage channel owned by the County or for which the County
has established channel lines or from the existing or proposed boundary
of any county or state owned land or on which a public building or
institution is situated, the matter shall be referred to the Chautauqua
County Planning Board.
B.
Within
30 days after receipt of a full statement of such referred statement
the Chautauqua County Planning Board to which the referral is made
or the authorized agent of said department shall report its recommendation
thereon to the Board of Appeals, accompanied with a full statement
as to the reason. If the County Planning Board fails to make such
report within 30 days or such longer period as may have been agreed
upon by it and the Board of Appeals after receipt of the referred
matter, the Board of Appeals may act without such report. If the Chautauqua
County Planning Board disapproves the proposal or recommends modification
thereof, the Board of Appeals shall not act contrary to such disapproval
or recommendation except by a vote of four members thereof and after
the adoption of a resolution fully setting forth the reasons for such
contrary action.
C.
Within seven days after final action by the Board of Appeals, approval,
modification or disapproval of a referred matter, the Board of Appeals
shall file a final report on the action it has taken with the Chautauqua
County Planning Board which had made the recommendation, modifications
or disapproval.
Any applications for an amendment, variance or special use permit
filed by or on behalf of the owners of the property affected shall
be accompanied by a fee of $50.
No special use permit or variance shall be granted by the Zoning
Board of Appeals or the Town Board except after a public hearing upon
notice published in the official Town newspaper, such notice to be
so published at least five days prior to the date of such hearing.
