The Board of Appeals, consisting of five members,
as constituted and empowered under § 267 of Article 16 of
the Town Law on the effective date of this chapter, shall be continued.
Vacancies occurring in such Board shall be filled in accordance with
the Town Law. The Board of Appeals shall have all the powers and perform
all the duties prescribed by statute and by this chapter.
The Board of Appeals shall hear and decide appeals
where it is alleged that there is an error or misrepresentation in
any order, requirement, decision or determination by any administrative
official of the Town of Cheektowaga charged with the enforcement of
the provisions of this chapter. The Board of Appeals may reverse,
modify or affirm, in whole or in part, any such appealed order, requirement,
decision or determination appealed from, and may make such order,
requirement, decision or determination as in its opinion ought to
be made in strictly applying and interpreting the provisions of this
chapter, and for such purposes shall have all the powers of the officer
from whom the appeal is taken.
A.
On an appeal from an order, requirement, decision
or determination of any administrative official charged with the enforcement
of this chapter, where it is alleged by the appellant that there are
practical difficulties or unnecessary hardship in the way of carrying
out the strict application of any provision of this chapter, the Board
of Appeals may grant a variance from the strict application of such
provisions, provided that the findings of the Board of Appeals are
consistent with the following:
B.
Variances defined. The following define the two types
of variances which the Zoning Board of Appeals has the power to grant
and the criteria which the Zoning Board of Appeals must consider in
order to grant each type of variance:
(1)
"Area variance" shall mean the authorization by the
Zoning Board of Appeals for the use of land in a manner which is not
allowed by the dimensional or physical requirements of the applicable
zoning regulations. 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.
(a)
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 area 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.
(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.
(2)
"Use variance" shall mean the authorization by the
Zoning Board of Appeals for the use of land for a purpose which is
otherwise not allowed or is prohibited by the applicable zoning regulations.
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 for each and every permitted use under the zoning
regulations for the particular district where the property is located:
(a)
The applicant cannot realize a reasonable return,
provided that lack of return is substantial as demonstrated by competent
financial evidence;
(b)
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;
(c)
That the requested use variance, if granted,
will not alter the essential character of the neighborhood; and
(d)
That the alleged hardship has not been self-created.
C.
The Board of Appeals, in the granting of the 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.
D.
Imposition of conditions. The Board of Appeals shall,
in the granting of both use variances and area variances, have 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 a neighborhood or community, public safety
secured and substantial justice done. Such conditions or restrictions
shall be incorporated in the building permit and certificate of zoning
compliance.
A.
The Board of Appeals shall hear and decide, in accordance
with the provisions of this article, all applications for special
permits or for modifications of provisions of this chapter in all
such cases upon which the Board of Appeals is specifically authorized
to pass, or to make any other determination required by this chapter.
B.
In authorizing any specified special permit or specified
modification, or in making any required determination, all required
findings shall be made, and, in the case of special permits or modifications,
the Board of Appeals may prescribe appropriate conditions to minimize
adverse effects on the character of the surrounding area and to safeguard
the public health, safety, convenience or general welfare.
C.
No special permit or modification of the provisions
of this chapter shall be authorized by the Board of Appeals unless,
in addition to other findings specified in this chapter, it finds
that such special permit or modification:
(1)
Will be in harmony with the general purposes and intent
of this chapter.
(2)
Will not tend to depreciate the value of adjacent
property.
(3)
Will not create a hazard to health, safety or the
general welfare.
(4)
Will not alter the essential character of the neighborhood
nor be detrimental to the residents thereof.
(5)
Will not otherwise be detrimental to the public convenience
and welfare.
A.
Temporary structures or uses (not including signs).
The Board of Appeals may authorize a temporary and revocable permit
for not more than two years for uses or structures that do not conform
with the regulations of this chapter for the district in which they
are located, provided that the following findings are made:
B.
Permitted temporary structures or uses; extension
of time limit. The Board of Appeals may authorize the continuation
of temporary structures or uses incidental to construction work, provided
that the following findings are made:
A.
Rules of conduct and procedure. The Board of Appeals,
consistent with law and ordinance, may adopt rules of conduct and
procedure.
B.
Filing appeals. An appeal to the Board of Appeals
from any ruling of any administrative officer charged with the enforcement
of this chapter may be taken by any person aggrieved or by any officer,
department, board or bureau of the Town. Such appeal shall be taken,
within such time as shall be prescribed by the Board of Appeals by
general rule, by filing with the officer from whom the appeal is taken
and with the Board of Appeals a notice of appeal, specifying the ground
thereof. The officer from whom the appeal is taken shall forthwith
transmit to the Board of Appeals all the papers constituting the record
upon which the action appealed from was taken.
C.
Filing applications. An application for any matter
upon which the Board of Appeals is required to pass may be made to
the Town Clerk, along with a filing fee as set by Town Board resolution,
by the owner or tenant of the property (or a duly authorized agent)
for which such appeal or application is sought.
D.
Meetings, witnesses and records.
(1)
Meetings of the Board of Appeals shall be held at
the call of the Chairman and on the third Wednesday of each month
at 7:30 p.m. in the Council Chambers of the Cheektowaga Town Hall.
All meetings shall be open to the public. The Chairman of the Board
of Appeals or, in his absence, the Acting Chairman may administer
oaths and compel the attendance of witnesses.
(2)
The Board of Appeals shall keep minutes of its proceedings,
showing the vote of each member upon every question or, if absent
or failing to vote, indicating such fact, and shall keep records of
its examination and other official action. Every rule, regulation,
amendment or repeal thereof and every order, requirement, decision
or determination of the Board of Appeals shall immediately be filed
in the office of the Town Clerk and shall be a public record.
F.
Public hearing. The Board of Appeals shall fix a reasonable
time for a hearing of an appeal, applications for special permits
or modifications or regulations, or other matters referred to it,
and shall give public notice thereof in accordance with the provisions
of Subdivision 5 of § 267 of the Town Law.[2]
[2]
Editor's Note: See also Town Law § 267-a,
Subdivision 7.
G.
Decisions of the Board of Appeals.
(1)
The concurring vote of a majority of the members of
the Board of Appeals shall be necessary to reverse any order, requirement,
decision or determination appealed from, to decide in favor of the
applicant any matter upon which it is required to pass under this
chapter, or to effect any variation in this chapter.
(2)
Every decision of the Board of Appeals shall be by
resolution. Where findings are required, the decision shall set forth
each required finding, supported by substantial evidence or other
data considered by the Board of Appeals in each specific case, or,
in the case of denial, the decision shall include the findings which
are not satisfied.
Any variance, special permit or modification
of regulations authorized by the Board of Appeals shall be automatically
revoked unless a building permit conforming to all the conditions
and requirements established by the Board of Appeals is obtained within
six months of the date of approval by the Board of Appeals and construction
is commenced within one year of such date of approval.
Failure to comply with any condition or restriction
prescribed by the Board of Appeals in approving any appeal for a variance,
application for a special permit or a modification of regulations
shall constitute a violation. Such violation may constitute the basis
for revocation of a variance, special permit or modification, or for
imposing penalties and other applicable remedies.
