A.
The City of Watervliet Board of Appeals has been established in accordance with § 81 of the General City Law.
B.
There shall be five members of the Board of Appeals who shall be
residents of the City of Watervliet and shall be appointed by the
Mayor for a term of three years. The term of office of the successors
of such members shall be three years. Vacancies occurring in said
Board by expiration of term or otherwise shall be filled in the same
manner.
C.
The Mayor shall designate a member to serve as Chairperson. In the
absence of the Chairperson, the Board of Appeals shall choose one
of its members as acting Chairman. Such Chairman, or the party acting
in his stead during his absence, may administer oaths and compel the
attendance of witnesses.
D.
Alternate members of the Board of Appeals shall be appointed by the
Mayor for a term of one year and may serve when a member is unable
to participate due to a conflict of interest. The Chairperson of the
Board of Appeals may designate an alternate to substitute for a member
when such member is unable to participate on an application or matter
before the Board of Appeals. When so designated, the alternate member
shall possess all the powers and responsibilities of such member of
the Board. Such designation shall be entered into the minutes of the
initial Board of Appeals meeting at which the substitution is made.
Any alternate member may be removed by the Mayor for cause and after
public hearing.
E.
The presence of three members shall be necessary to constitute a
quorum.
F.
Voting requirements. Except on a rehearing, every motion or resolution
of a Board of Appeals shall require for its adoption the affirmative
vote of a majority of all members of the Board regardless of absences
or vacancies. Three members shall constitute a majority.
G.
Removal of members. Any member may be removed by the Mayor for cause and after public hearing. The standard of proof to demonstrate cause shall be a preponderance of evidence. Rules of admissibility of evidence at the hearing shall be applied and constructed to allow all statements, including but not limited to hearsay evidence. All relevant evidence not legally privileged may be received. Notice of the public hearing shall be given to the Board member at least five days prior to the hearing. The hearing shall be held in Council chambers; a judicial hearing officer (JHO) shall be selected by the Corporation Counsel for the purpose of presiding over such public hearing and for maintaining order. The JHO shall conduct the hearing, in the presence of the Mayor, and the Mayor shall make the sole decision to remove the Board member for cause, based upon a preponderance of the evidence standard. Pursuant to General City Law § 81(7-a), any Board of Appeals member may be removed for noncompliance with minimum requirements relating to meeting attendance and training as established by the Council by local law or ordinance and as set forth in § 272-85H of the City of Watervliet Code.
H.
Minimum requirements for members.
(1)
Training. Pursuant to General City Law § 81(7-a), each
member of the Board of Appeals shall complete a minimum of four hours
of training each year designed to enable such members to more effectively
carry out their duties.
(2)
Attendance. Each Board member shall be required to attend 75% of
the scheduled meetings in each calendar year. Failure to attend the
required number of meetings may be grounds for removal from the Board.
Failure to attend three consecutive meetings may be grounds for removal
from the Board.
I.
The Board of Appeals may appoint a Secretary, who shall take minutes
of all its meetings and keep its records.
J.
The Board of Appeals shall adopt from time to time such rules and
regulations as it may deem necessary to carry into effect the provisions
of this chapter, and all its resolutions and orders shall be in accordance
therewith.
The Board of Appeals shall have the following power and duties prescribed by statute (see § 81 of the General City Law as may be amended from time to time) and this chapter:
A.
Interpretation. On appeal from an order, requirement, decision or
determination made by a Zoning Enforcement Officer or on request by
an official, board or department of the City, to decide any one of
the following questions:
(1)
The meaning of any portion of the text of this chapter or of any
condition or requirement specified or made under the provisions of
this chapter.
B.
Special use permits. The Board of Appeals shall review and issue special use permits in accordance with Article XII, Special Use Permits, of this chapter.
C.
Appeals. The Board of Appeals shall, in accordance with provisions of this article, hear and determine appeals from any refusal of a zoning permit, building permit or certificate of occupancy by the Building Inspector, Housing Inspector or Zoning Enforcement Officer or review any order or decision of said individuals where such order or decision is based upon the requirements of this Chapter 272, Zoning.
D.
Variances. The Board of Appeals, on appeal from the decision or determination
of the Zoning Enforcement Officer, shall have the power to grant variances,
as follows:
(1)
Use variances.
(a)
A use variance is an authorization by the Board of Appeals that
allows a specified use in a zoning district where such specified use
is not allowed. No such use variance shall be granted by a 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 that for each and every permitted use under the zoning
regulations for the particular district where the property is located:
[1]
The applicant cannot realize a reasonable return, provided that
lack of return is substantial as demonstrated by competent financial
evidence;
[2]
That 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]
That the requested use variance, if granted, will not alter
the essential character of the neighborhood; and
[4]
That the alleged hardship has not been self-created.
(b)
The Board, 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)
An area variance is an authorization by the Board of Appeals
that allows a departure from the requirements of this chapter. Area
variances include any departure not covered by a use variance (for
example, lot size, yard sizes and number of parking spaces). In making
its determination, on an area variance application the Board 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.
(b)
The Board, 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. 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. 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.
The powers and duties of the Board of Appeals shall be exercised
in accordance with rules and procedures established by said Board.
Such rules and procedures shall include the following:
(1)
The Board shall hear and decide all applications and appeals for
variances and other relief from any order, requirement, decision or
determination made by the Zoning Enforcement Officer or any other
official or department of the City under the provisions of this chapter.
(2)
An application or appeal must be made within 60 days of the action
being applied for or appealed. During such sixty-day period and during
such time as an appeal or application is pending before the Board
of Appeals, the Zoning Enforcement Officer shall not seek to institute
any legal action or proceeding through the office of the Corporation
Counsel to enforce the order, requirement or decision which is the
subject of review by the Board.
(3)
In the case of an appeal, a copy of the letter denying the issuance
of a permit must be included as part of the application submitted
to the Board of Appeals. In other cases, documentation of the decision,
order, requirement or determination which is the subject of the appeal
must be submitted.
(4)
Copies of the proper application form, survey map and/or plot plan,
together with all evidence, information and documents pertaining to
such application or appeal, shall be filed with the Board of Appeals
through the Code Enforcement Office. The survey map or plot plan submitted
shall be drawn to scale, indicating the formal boundaries of the subject
property, the location of any existing structures, the location of
any proposed structures or building additions and the nature and extent
of any landscaping improvements or site alterations. Interior floor
plans, building elevations, and/or a formal site plan containing the
elements may be required to advise the Board fully with reference
to the application or appeal.
(5)
Within 10 business days of receipt of a complete application to the
office of the Zoning Enforcement Officer, the applicant shall be notified
in writing of the scheduled date of the public hearing pertaining
to such appeal or application.
(6)
Not less than five days prior to the hearing date, the appellant
or applicant shall publish in the official newspaper of the City a
legal notice of the hearing which shall be conducted by the Board.
The appellant or applicant shall also cause notice of the hearing
to be mailed by regular mail to the owners of all property within
a two-hundred-foot radius of the parcel which is the subject of the
hearing before the Board. Such notice shall be mailed not less than
five days prior to the hearing date.
(7)
The failure to give notice in exact conformance herewith shall not
be deemed to invalidate any action taken by the Board of Appeals in
connection with the granting of any appeal or variance, provided that
due notice shall have been published and that there shall have been
substantial compliance with the remaining provisions of this section.
(8)
The Board shall render a decision on any appeal or application within
62 days of the public hearing unless an extension of time is mutually
agreed to by the Board and the applicant.
B.
Appeals.
(1)
Time of appeal. Such appeal shall be taken within 60 days after the
filing of any order, requirement, decision, interpretation or determination
of the Building Inspector charged with the enforcement of such ordinance
or local law by filing with such Building Inspector and with the Board
of Appeals a notice of appeal, specifying the grounds thereof and
the relief sought. The Zoning Enforcement Officer from whom the appeal
is taken shall transmit to the Board of Appeals all the papers constituting
the record upon which the action appealed from was taken.
(2)
Stay upon appeal. An appeal to the Board of Appeals shall stay the
enforcement of the ordinance or local law from which the appeal has
been taken, unless the Zoning Enforcement Officer determines that
the stay of enforcement would pose imminent peril to life or property.
C.
Public hearings and referrals.
(1)
For all appeals and variance applications, the Board of Appeals shall
fix a reasonable time for the hearing of the appeal or other matter
referred to it and shall direct the applicant to give public notice
of such hearing by publication in a paper of general circulation in
the City at least five business days prior to the date thereof. The
cost of sending notices relating to such appeal or a reasonable fee
relating thereto shall be borne by the appealing party. Upon the hearing,
any party may appear in person or by agent or attorney. For a hearing
on a special use permit, the public hearing must be held within 62
days from the filing of the application.
(2)
At least five days before such hearing, the Board of Appeals shall
mail notices to the county, metropolitan or regional planning agency,
as required by § 239-m of the General Municipal Law, which
notice shall be accompanied by a full statement of the matter under
consideration as defined in § 239-m of the General Municipal
Law.
(3)
Where the consideration for a special use permit involves land within
500 feet of an adjoining municipality, or from the boundary of any
existing or proposed county or state park, or from the right-of-way
of any existing or proposed state or county highway, or from the existing
or proposed right-of-way of any stream or drainage channel owned by
the county, or state or county-owned land on which a public building
is situated, the application shall be referred to the Albany County
Planning Board at least 30 days before the public hearing and acted
upon in accord with the provisions of § 239-m of New York
State General Municipal Law.
D.
Decision.
(1)
The 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 be extended by mutual consent
of the applicant and the Board.
(2)
Filing of decision and notice. The decision of the Board of Appeals
shall be filed in the office of the City Clerk within 10 business
days after such decision is rendered and a copy thereof mailed to
the applicant.
E.
Compliance with the State Environmental Quality Review Act. The Zoning
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.
F.
Rehearing. A motion for the Board of Appeals to hold a rehearing
to review any order, decision or determination of the Board previously
reviewed may be made by any member of the Board. A unanimous vote
of all members of the Board then present is required for such rehearing
to occur. Such rehearing is subject to the same notice provisions
as an original hearing. Upon such rehearing, the Board may reverse,
modify or annul its original order, decision or determination upon
the unanimous vote of all members then present, provided that the
Board finds that the rights vested in persons acting in good faith
in reliance upon the reviewed order, decision or determination will
not be prejudiced thereby.
A.
A use variance granted by the Board of Appeals shall only be valid
if the use for which it has been granted has been established within
12 months of the date of the approval or as otherwise established
by the Board Appeals as part of the granting of the variance.
B.
An area variance granted by the Board of Appeals shall only be valid
if the erection and construction of the new principal building or
structure for which the variance was granted shall actually have been
commenced within 12 months of the date of the approval or as otherwise
established by the Board of Appeals as part of the granting of the
variance.
C.
The Board of Appeals may grant one extension to the time limit for
the validity of a variance of up to 12 months upon filing of an application
for an extension with the Board of Appeals.
All requests to withdraw an application or appeal made to the
Board must be made in writing to the Board of Appeals at least 24
hours prior to the scheduled time of the public hearing at which the
appeal is to be heard. Failure to make such application for withdrawal
may result in the application or appeal being heard by the Board and
a decision made upon such evidence as is presented to the Board.
