ARTICLE IX
ZONING BOARD OF APPEALS
SECTION 901 CREATION
A Zoning Board of Appeals is hereby created: said Board shall consist of five members, to be appointed by the Village Board, and function in accordance with enabling Law. The Village Board’s appointment of the initial Zoning Board of Appeals shall be as follows: one member’s term shall expire at the end of the Village fiscal year in which such member was appointed; one member’s term shall expire at the end of the second Village fiscal year from initial appointment: one member’s term shall expire at the end of the third Village fiscal year from initial appointment: one member’s term shall expire at the end of the fourth Village fiscal year from initial appointment: one member’s term shall expire at the end of the fifth Village fiscal year from initial appointment, the replacement member shall be appointed for a full five year term.
The members of the Zoning Board of Appeals shall be removable for cause by the appointing authority upon written charges and after public hearing.
The Village Board shall designate the chairperson and deputy chairperson of said Zoning Board of Appeals. The Zoning Board of Appeals may prescribe rules of procedure for its affairs.
No member of the Zoning Board of Appeals shall hold other elective or appointive offices in the Village Government.
SECTION 902 POWERS AND DUTIES
With due consideration for the purpose and intent of the Zoning Text, the Zoning Board of Appeals shall:
A. Hear and decide all appropriate matters referred to it, or upon which it is required to pass under this Text.
B. Interpret the meaning of the Zoning Law when called upon to do so, see Article IX, Section 904.
C. Hear and act upon applications for special use permits, see Article IX, Section 905.
D. Hear and act upon applications for variances, see Article IX, Section 906.
E. Decide appeals from a person who feels aggrieved by a decision of the Building Inspector. The board may reverse, affirm, or modify the decision made by the Building Inspector.
SECTION 903 GENERAL PROCEDURES (DUTIES)
A. Duties - The Zoning Board of Appeals shall act in strict accordance with procedures specified by Law and by this Zoning Law. The major duties of the Board shall be to hear and to decide on Special Use permit and variance requests as well as to interpret the meaning of the Zoning Law as requested. Additionally, they shall hear requests for selected Special Use Permits when a Variance (Use or Area) is also required.
B. Format for Requests - All requests shall be in writing on forms prescribed by the Zoning Board of Appeals. Specific provisions of the Zoning Law shall be referred to and as a minimum, the following information shall be provided by the person requesting the variance/interpretation:
1. property identification;
2. project description;
3. drawing of sufficient detail to provide needed information sufficient to decide on the request;
4. reasons for permit denial;
5. proof of unnecessary hardship or practical difficulties; and
6. hearing information.
C. Referral to the Planning Board - On an optional basis, the Zoning Board of Appeals may request in writing a recommendation by the Planning Board. The failure of the Planning Board to submit said report shall be deemed to be an approval of the appeal or interpretation in favor of the applicant.
D. Hearings - All hearing procedures shall be in accordance with Section 7-712 of the Village Law and other applicable laws with respect to notices, timeliness, etc.
E. Decisions - Every decision of the Zoning Board of Appeals shall be by resolution, each of which shall contain a full record of the findings. Decisions shall be made in a timely manner in accordance with state law. As per state law, a majority of the membership is needed to pass or reject any request.
F. Time Requirements - All appeals to the Zoning Board of Appeals for interpretations or variances shall be submitted to the Zoning Board of Appeals within thirty days of the date of denial of the application.
SECTION 904 INTERPRETATION
The Zoning Board of Appeals shall have the power to interpret the meaning of this Zoning Law whenever called upon by the Municipal Board, Zoning Officer, or an aggrieved party. This shall include the power to reverse any order, requirement, decision, or determination of an administrative official of the Board. This interpretive power shall include the determination of district boundary lines.
SECTION 905 SPECIAL USE PERMITS
A. General Procedure – The Zoning Board of Appeals may issue a special use permit for any of the special uses listed in this Text, provided such special use complies with the general standards set forth in this Text and with the special requirements enumerated elsewhere herein.
1. Legal requirements- The Zoning Board of Appeals shall act in strict accordance with procedure specified by law and by this Zoning Law with regard to public hearings, notices, publications, etc.
2. Plan – A plan for the proposed development of a site for the designated special use shall be submitted with an application for a special use permit. Such plan shall show the location of all buildings, lots, parking areas, traffic access and circulation drives, open spaces, landscaping, and any other pertinent information that the Zoning Board of Appeals deems necessary.
3. Permit – A special use permit shall be deemed to authorize only one particular use and shall expire if the special use shall cease for more than one year for any reason. No special use permit shall be issued for a property where there is an existing violation of this Law.
4. Planning Board Recommendations – At least 15 days before the date of the hearing required by Law on an application or appeal to the Zoning Board of Appeals, the Board may, at its discretion, transmit to the Planning Board a copy of said application or appeal, and the Planning Board shall submit a report of its advisory opinion prior to the date of such hearing. If the Planning Board fails to submit such report within the specified period, the Zoning Board of Appeals may act on the application, without such report.
5. Decisions – Every decision of the Zoning Board of Appeals shall be by resolution, which shall contain a full record of the findings of the Zoning Board of Appeals in the particular case. Decisions shall be made within 30 days from the hearing date and failure to decide in this time span shall result in automatic approval of the permit.
B. General Standard
A special use permit shall only be granted when the proposed use is of such character, size, and location that in general it will be in harmony with the orderly development of the district in which the property is situated and will not be detrimental to the orderly development of adjacent districts.
The location and size of the use, the nature and intensity of the operations involved, the size of the site in relation to it, and the location of the site with respect to the existing or future streets giving access to it shall be such that it will be in harmony with the orderly development of the district, and the location and/or size, nature and height of buildings, walls, and fences will not discourage the appropriate development and use of adjacent land and buildings or impair the value thereof. Operations in connection with any special use shall not be more objectionable to nearby properties by reason of noise, fumes, vibrations, or lights, than would be the operations of any permitted use.
Upon finding that such general standards and the special standards set forth herein have been fully met, the Zoning Board of Appeals may issue such special use permit and in so doing may impose any conditions that it may deem necessary to accomplish the reasonable application of said standards. Furthermore, it may deny any such application which in its judgment is not in accordance with said general or special standards. Said Board may require as a condition of the issuance of any special use permit, that it shall be periodically renewed, or said Board may issue a temporary special use permit, subject to adequate guarantees that the use covered will be terminated at the end of the period specified or such extension thereof as may be granted by said Board, provided that any such renewal or extension shall be subject to the same procedure as specified herein for original issuance of the special permit involved and shall be in conformity with aforesaid general and special standards.
C. Standard for Creating Substandard Sized Lots:
For single-family units: An applicant who desires to create a lot which does not meet the lot size and width requirements found in Article V, Section 505 may apply for a special use permit. In determining whether to allow a substandard sized lot to be created the following specific standard ( in addition to the general standards of Article IX Section 905 ( A & B) shall be considered.)
1. The following table must be complied with as attested by a licensed engineer or other appropriate person:
Percolation Rate
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Lot Area
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Lot Width
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2. The possibility of the parcel being served by either municipal sewer or water systems in the future shall be considered. The proximity to existing municipal systems, the size of adjacent lots, etc., shall be evaluated.
3. Appropriate permits from the County Health Department are mandatory prior to the issuance of any special use or building permits.
4. The effects the proposal could have on the character of the neighborhood shall be considered.
5. If the Zoning Board of Appeals turns down the special use permit request for any reason, an area variance may be applied for in accordance with Article IX, Section 906.
6. If desired, the Zoning Board of Appeals may refer the special use permit request to the Planning Board for their recommendations.
SECTION 906 USE AND AREA VARIANCES
A. Reasons for Variances - The Zoning Board of Appeals has the authority to vary or modify the strict letter of the Zoning Law where a literal interpretation would cause practical difficulties (Area Variances) or unnecessary hardships (Use Variance).
B. Applicability and Limitations -
1. The Zoning Board of Appeals can decide appeals from a person who feels aggrieved by a decision of the Enforcement Officer.
2. The Zoning Board of Appeals has absolutely no power to amend the Zoning Law and must exercise great care to insure that its rulings do not, in effect, amend the Zoning Law.
C. The Zoning Board of Appeals has the power to grant use variances provided that the applicant demonstrates that the applicable zoning regulation causes unnecessary hardship as applied to the applicant’s property. In order to prove unnecessary hardship the applicant must demonstrate all of the following.
1. Under the applicable zoning regulations the applicant is deprived of all economic use or benefit from the property in question, which deprivation must be established by competent financial evidence.
2. That the hardship relating to the property 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 hardship has not been self-created.
The Zoning Board of Appeals, in the granting of a use variance, shall grant only the minimum variance that it deems necessary and adequate to address the unnecessary hardship proven by the applicant, and to preserve and protect the character of the neighborhood and the health, safety and welfare of the community.
D. The Zoning Board of Appeals has the power to grant area variances. In making its determination, the Zoning Board of Appeals must weigh the benefit (which will be accorded the applicant by the granting of the variance), against the detriment to the health, safety and welfare of the neighborhood or community. In making such determination the Board must 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 variances.
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 difficulty was self-created, which consideration shall be relevant to the decision of the Zoning Board of Appeals, but shall not necessarily preclude the granting of the area variance.
The Zoning Board of Appeals, in the granting of area variances, shall grant only 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.
E. In granting any variance, the Zoning Board of Appeals shall prescribe any conditions that it deems to be necessary or desirable. The conditions must be written in the resolution in detail, including the reasons for the conditions imposed.
SECTION 907 MANDATORY REFERRAL (GENERAL MUNICIPAL LAW 239 l and m)
A. Applicability - In accordance with General Municipal Law 239 l and m, before issuing a Special Use Permit or granting a variance affecting any real property lying within a distance of five hundred feet of the boundary of this Municipality or from a 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 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 on which a public building or institution is situated, the matter shall be referred to the Chautauqua County Planning Board.
B. Response Time - Within thirty days after receipt of a full statement of such referred matter, the Chautauqua County Planning Board to which referral is made or an authorized agent of said agency shall report its recommendations thereon to the Permitting Board, accompanied by a full statement of the reasons for such recommendations. If the Chautauqua County Planning Board fails to report within such period of thirty days, the Permitting Board may act without such report. If the Chautauqua County Planning Board disapproves the proposal or recommends modification thereof, the Permitting Board shall not act contrary to such disapproval or recommendation except by a vote of a majority plus one of all the members thereof and after the adoption of a resolution fully setting forth the reasons for such contrary action.
C. Report of Action - Within seven days after final action by the Permitting Board, modifications or disapproval of a referred matter, the Permitting Board shall file a report of the final action it has taken with the Chautauqua County Planning Board which had made the recommendations, modifications, or disapproval.
3. Appropriate permits from the County Health Department are mandatory prior to the issuance of any special use or building permits.
4. The effects the proposal could have on the character of the neighborhood shall be considered.
5. If the Zoning Board of Appeals turns down the special use permit request for any reason, an area variance may be applied for in accordance with Article IX, Section 906.
6. If desired, the Zoning Board of Appeals may refer the special use permit request to the Planning Board for their recommendations.
SECTION 906 USE AND AREA VARIANCES
A. Reasons for Variances - The Zoning Board of Appeals has the authority to vary or modify the strict letter of the Zoning Law where a literal interpretation would cause practical difficulties (Area Variances) or unnecessary hardships (Use Variance).
B. Applicability and Limitations -
1. The Zoning Board of Appeals can decide appeals from a person who feels aggrieved by a decision of the Enforcement Officer.
2. The Zoning Board of Appeals has absolutely no power to amend the Zoning Law and must exercise great care to insure that its rulings do not, in effect, amend the Zoning Law.
C. The Zoning Board of Appeals has the power to grant use variances provided that the applicant demonstrates that the applicable zoning regulation causes unnecessary hardship as applied to the applicant’s property. In order to prove unnecessary hardship the applicant must demonstrate all of the following.
1. Under the applicable zoning regulations the applicant is deprived of all economic use or benefit from the property in question, which deprivation must be established by competent financial evidence.
2. That the hardship relating to the property 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 hardship has not been self-created.
The Zoning Board of Appeals, in the granting of a use variance, shall grant only the minimum variance that it deems necessary and adequate to address the unnecessary hardship proven by the applicant, and to preserve and protect the character of the neighborhood and the health, safety and welfare of the community.
D. The Zoning Board of Appeals has the power to grant area variances. In making its determination, the Zoning Board of Appeals must weigh the benefit (which will be accorded the applicant by the granting of the variance), against the detriment to the health, safety and welfare of the neighborhood or community. In making such determination the Board must 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 variances.
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 difficulty was self-created, which consideration shall be relevant to the decision of the Zoning Board of Appeals, but shall not necessarily preclude the granting of the area variance.
The Zoning Board of Appeals, in the granting of area variances, shall grant only 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.
E. In granting any variance, the Zoning Board of Appeals shall prescribe any conditions that it deems to be necessary or desirable. The conditions must be written in the resolution in detail, including the reasons for the conditions imposed.
SECTION 907 MANDATORY REFERRAL (GENERAL MUNICIPAL LAW 239 l and m)
A. Applicability - In accordance with General Municipal Law 239 l and m, before issuing a Special Use Permit or granting a variance affecting any real property lying within a distance of five hundred feet of the boundary of this Municipality or from a 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 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 on which a public building or institution is situated, the matter shall be referred to the Chautauqua County Planning Board.
B. Response Time - Within thirty days after receipt of a full statement of such referred matter, the Chautauqua County Planning Board to which referral is made or an authorized agent of said agency shall report its recommendations thereon to the Permitting Board, accompanied by a full statement of the reasons for such recommendations. If the Chautauqua County Planning Board fails to report within such period of thirty days, the Permitting Board may act without such report. If the Chautauqua County Planning Board disapproves the proposal or recommends modification thereof, the Permitting Board shall not act contrary to such disapproval or recommendation except by a vote of a majority plus one of all the members thereof and after the adoption of a resolution fully setting forth the reasons for such contrary action.
C. Report of Action - Within seven days after final action by the Permitting Board, modifications or disapproval of a referred matter, the Permitting Board shall file a report of the final action it has taken with the Chautauqua County Planning Board which had made the recommendations, modifications, or disapproval.