A Zoning Board of Appeals is hereby created in accordance with
Article 16, § 267, of the Town Law. Said Board shall consist
of seven members appointed by the Town Board. Members shall be residents
of the Town of New Hartford. The Town Board, by resolution, shall
fix the members' terms so that one member's term shall expire at the
end of each year for seven calendar years. At the expiration of each
original member's appointment, the replacement member shall be appointed
for a term of seven years. The Town Board shall annually designate
the Chairman of the Board of Appeals, while the Board of Appeals shall
annually designate its Secretary and may prescribe reasonable rules
in addition to those provided herein for the conduct of its affairs.
All members are subject to removal by the Town Board for just cause
after public hearing. All Board of Appeals members shall complete
a minimum of four hours of Town-Board-approved training per year as
required by § 267 of the Town Law.
The Board of Appeals shall have all the powers and duties prescribed
by law and by this chapter, which are more particularly specified
as follows:
A.
Interpretation. To hear and decide on questions where it is alleged
that there is an error in any order, requirement, decision or determination
made by the Code Enforcement Officer involving the interpretation
of any provision of this chapter or on request by an administrative
official, board or agency or resident of the Town, to decide any of
the following questions:
(1)
Determination of the meaning of any portion of the text of this
chapter or of any conditions or requirements specified or made under
the provisions of this chapter.
B.
Variances. To authorize, upon appeal from a decision of the Code
Enforcement Officer charged with the enforcement of this chapter,
variances from the terms of this chapter. Variances may apply to either
the area, bulk, height and density requirements (area variance) or
the use requirements (use variance) for a structure or parcel. The
criteria to be applied by the Zoning Board of Appeals for review of
each type of variance are as follows:
(1)
Use variances.
(a)
No 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, 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]
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.
(b)
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)
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 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.
[5]
Whether the alleged difficulty was self-created, which 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 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)
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 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.
The Zoning Board of Appeals shall act in strict accordance with
the procedures specified by § 267 of the Town Law and this
chapter.
A.
Meetings. Meetings shall be held at the call of the Chairperson or
at such other times as the Board of Appeals may determine. A quorum
shall consist of four members, but in order to issue an interpretation,
reverse a decision of the Code Enforcement Officer or authorize a
variance, an affirmative vote of at least four members shall be required.
A favorable vote of a majority plus one shall also be required if
the action taken is contrary to an advisory recommendation received
from the Oneida County Department of Planning, under the provisions
of § 239-m of the General Municipal Law. The Board shall
keep minutes of its proceedings showing the vote of each member upon
each question and shall keep records of its examinations and other
official actions. All meetings of the Board of Appeals shall be open
to the public.
B.
Application and fee. All appeals and requests made to the Board shall
be in writing, on forms prescribed by the Board. All appeals shall
be filed with the Board within 60 days of the action appealed from
and shall be accompanied by the applicable fee in accordance with
the fee schedule established and annually reviewed by the Town Board.
Every appeal or request shall refer to the specific provision of this
chapter that is involved and shall precisely set forth either the
interpretation that is claimed or the details of the variance that
is applied for and the grounds on which it is claimed that such variance
should be granted.
C.
Public notice and hearing. The Board shall fix a reasonable time
and place for a public hearing on any such appeal or request, of which
hearing date the appellant shall be given notice and at which hearing
he/she shall appear in person or by agent. Additionally, notice shall
be provided as follows:
(1)
By publishing at least five calendar days prior to the date
thereof a legal notice in the official newspaper of the Town.
(2)
By requiring the applicant to provide notice of the public hearing
and data regarding the substance of the appeal to the owners of all
property abutting that held by the applicant and all other owners
within 500 feet, or such additional distances that the Board of Appeals
may deem advisable, of the land involved in such appeal. Notice shall
be provided by certified mail at least five calendar days prior to
the hearing, with compliance with this notification procedure certified
to by a United States Postal Service receipt. The names of owners
notified shall be taken as such appear on the last completed tax roll
of the Town.
D.
Required referral. A full statement of any appeal that meets the
referral requirements of § 239-m of the General Municipal
Law shall also be referred not less than five days prior to the public
hearing to the Oneida County Department of Planning. No action shall
be taken by the Board of Appeals on such appeal until an advisory
recommendation has been received from said Board or 30 calendar days
have elapsed since the Board received such full statement.
E.
Decisions. Every decision of the Board of Appeals on an appeal or
request shall be made within 62 days of the close of the hearing by
the Board, shall be recorded in accordance with standard forms adopted
by the Board, shall fully set forth the circumstances of the case
and shall contain a full record of the findings on which the decision
is based. Every decision shall be by resolution of the Board, with
each such decision being filed in the office of the Town Clerk within
five business days thereof. The Board shall also notify the Code Enforcement
Officer and the Secretary of the Planning Board of its decision in
each case. If applicable, a report on the action taken shall also
be filed within 30 calendar days of said action with the Oneida County
Department of Planning.
F.
Attachment of conditions. In all cases where the Board of Appeals
grants a variance from the strict application of the requirements
of this chapter, it shall be the duty of the Board of Appeals to attach
such conditions and safeguards as may be in accordance with the spirit
and intent of this chapter.
G.
Effect of appeal. Unless the Code Enforcement Officer determines
there exists an imminent peril to either life or property, an appeal
stays all proceedings in furtherance by either the Town or appellant
related to the action which is the subject of the appeal.
H.
Expiration of approval. Unless construction or use is commenced and
diligently pursued within one calendar year from the date of the granting
of a variance, such variance shall become null and void without further
hearing and notification by the Board of Appeals.
I.
Strict compliance. All the provisions of this chapter relating to
actions of the Board of Appeals shall be strictly adhered to. The
Board of Appeals, as a body of limited jurisdiction, shall act in
full conformity with all provisions of law and of this chapter and
in strict compliance with all limitations contained therein; provided,
however, that if the procedural requirements set forth in this chapter
have been substantially observed, no applicant or appellant shall
be deprived of the right of application or appeal.
The Zoning Board of Appeals shall comply with the provisions
of the State Environmental Quality Review Act (SEQRA).
