Town of Busti, NY
Chautauqua County
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[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]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
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.
(2) 
Such use shall comply with the standards as they are set forth for the special use in §§ 405-25, 405-26 and 405-28 of this chapter.
(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.
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
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.