ARTICLE VI, Board of Appeals

ARTICLE VI, Board of Appeals

§ 250-38. Establishment; organization.

A A Board of Appeals is hereby established in accordance with the provisions of the Village Law thereto, and pursuant to § 7-712, Subdivision 2, of the Village Law, effective July 1, 1992, the Zoning Board of Appeals is exempt from the restriction of appellate review only.

B The Board of Appeals shall be organized as follows:

(1) The Board of Appeals shall consist of five (5) members appointed by the Village Board, each to serve for a term of five (5) years.

(2) The first appointment hereafter of members shall be for terms so fixed that at least one (1) will expire at the end of each official year commencing at the end of the current such year and continuing in succeeding years until the entire original appointments run out.

(3) At the expiration of each original appointment, the succeeding members shall be appointed for three-year terms in the case of a three-member Board and five-year terms in the case of a five-member Board. No such term shall exceed five (5) years.

(4) No person who is a member of the Village Board of Trustees shall be eligible for membership on such Board of Appeals.

(5) Any member of the Board may be removed by the Mayor for cause and after public hearing.

(6) All meetings of the Board of Appeals shall be held at the call of the Chairman and at such other times as such Board may determine. Such Chairman may administer oaths and compel the attendance of witnesses.

(7) Meetings of such Board shall be open to the public to the extent provided in Article 7 of the Public Officers Law. Such Board 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 also keep records of its examinations and other official actions.

(8) The Village Office shall be the office of the Board, and the Village Clerk shall be the Clerk of the Board.

(9) Every rule, regulation, every amendment or repeal thereof and every order, requirement, decision or determination of the Board shall immediately be filed in the office of the Board and with the Village Clerk and shall be a public record. Each resolution shall be filed in the office of the Village Clerk by case number under one or another of the following headings: interpretations, special permits or variances, together with all documents pertaining thereto. The Board of Appeals shall notify the Board of Trustees and the Planning Board of each special permit and each variance granted under the provisions of this chapter.

(10) All records of the Board shall be public records and shall be filed with the Village Clerk in the Village Office. Such Board shall show the vote of each member on any question.

(11) Term of members now in office. Members now holding office for terms which do not expire at the end of a year shall, upon the expiration of their term, hold office until the end of the year and their successors shall then be appointed for terms which shall be equal in years to the number of members of the Board.

(12) Decreasing membership. A Board of Trustees which has increased the number of members of the Board of Appeals to five (5) may, by resolution, decrease the number of members of the Board of Appeals to three (3) to take effect upon the next two (2) expirations of terms.

(13) Vacancy in office. If a vacancy shall occur otherwise than by expiration of term, the Board of Trustees shall appoint the new member for the unexpired term.

(14) The concurring vote of a majority of the members of the Board shall be necessary to decide in favor of the applicant on any matter which the Board is required to pass upon under the provisions of this chapter.

C Chairman; Acting Chairman.

(1) The Board of Appeals shall appoint its own Chairman. The Board shall also appoint a Deputy Chairman who shall serve for a period of three (3) years. The Deputy Chairman shall act in the absence of the Chairman.

(2) All meetings of the Board of Appeals shall be held at the call of the Chairman and at such other times as a majority of the Board may determine.

(3) Such Chairman or, in his absence, the Acting Chairman may administer oaths and compel the attendance of witnesses.

§ 250-39. Powers and duties.

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. Upon appeal from a decision by an administrative official, the Board of Appeals shall decide any question involving the interpretation of any provision of this chapter, including determination of the exact location of any district boundary if there is uncertainty with respect thereto.

B Special permits.

(1) The Board of Appeals shall issue special permits for any of the uses for which this chapter requires the obtaining of such permits from the Board of Appeals or for the extension of a building or use as such existed at the time of the passage of this chapter into a contiguous more restricted district for a distance not exceeding one hundred (100) feet.

(2) No such special permit shall be granted by the Board of Appeals unless it finds that the use for which such permit is sought will not, in the circumstances of the particular case and under any conditions that the Board considers to be necessary or desirable, be injurious to the neighborhood or otherwise detrimental to the public welfare.

C Variances.

(1) Definitions. As used in this section:

USE VARIANCE -- 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.

AREA VARIANCE -- 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 law.

(2) The Board of Appeals shall vary or adapt the strict application of any of the requirements of this chapter in the case of exceptionally irregular, narrow, shallow or steep lots or other exceptional physical conditions, whereby such strict application would result in practical difficulty or unnecessary hardship that would deprive the owner of the reasonable use of the land or building involved, but in no other case.

(3) Use variances.

a) The Board of Appeals, on appeal from the decision or determination of the administrative officer charged with the enforcement this Article, shall have the power to grant use variances, as defined herein.

b) No such use variance shall be granted by the Board of Appeals without a showing by the applicant that the applicable zoning regulations and restrictions have caused necessary hardship. In order to prove such unnecessary hardship, the applicant shall demonstrate to the Board of Appeals for each and every permitted use under the zoning regulations for the particular district where the property is located, that the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence; 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; that the requested use variance, if granted, will not alter the essential character of the neighborhood; and that 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 proved 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.

(4) Area variances.

a) The Zoning Board of Appeals shall have the power, upon an appeal from a decision or determination of the administrative official charged with the enforcement of this Article, to grant area variances as defined herein.

b) 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 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; whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; whether the requested area variance is substantial; whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and whether the alleged difficulty was self-created, which considerations 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.

(5) Imposition of conditions. The Board of Appeals shall, in the granting of both use 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 Article and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.

D Exceptions.

(1) Accessory buildings and swimming pools. The Codes Enforcement Officer of the Village of Ilion shall have the authority to grant permits for setback requirements with respect to accessory buildings and swimming pools. However, the applicant for the permit shall contact all adjoining land owners to allow them to voice any objections they have to the granting of the permit, and said applicant will submit in writing approval of all land owners to the Codes Enforcement Officer. Absent approval from all landowners, the applicant must apply to the Zoning Board of Appeals for a permit.

(2) In the event of a valid objection by the adjoining land owners or the Codes Enforcement Officer, the Codes Enforcement Officer shall refer the application to the Zoning Board of Appeals.

(3) Under any other conditions, the Codes Enforcement Officer, in his/her discretion, may refer any application to the Zoning Board of Appeals for review.

E Advisory opinions.

(1) At the discretion of the Zoning Board of Appeals, the Zoning Board may cause to be transmitted to the Planning Board a copy of the application or appeal and may request that the Planning Board submit to the Board of Appeals an advisory opinion with respect to the applications on appeal. Said advisory opinion may be requested prior to the public hearing on the application or appeal or after the public hearing.

(2) The Zoning Board of Appeals may request an advisory opinion from any established commission in the Village of Ilion.

F Special exceptions. The Board of Appeals shall have the power to hear and decide all applications for special exceptions. The Board shall have the authority to permit the following:

(1) Enlargements or extensions of nonconforming uses, subject to the limitations of § 250-28.

§ 250-40. Appeals and application procedure.

A The Board of Appeals shall act in strict accordance with the procedure specified by law and by this chapter. All appeals and applications made to the Board shall be in writing, on forms prescribed by the Board. Every appeal or application shall refer to the specific provision of this chapter involved and shall exactly set forth the specific provision that is claimed, the use for which the specific 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 No applications or appeals shall be filed until payment of a hearing fee as determined by resolution of the Village Board is paid therewith to the Village Clerk to cover the costs of publication and hearing expenses.

C Such Board of Appeals shall hear and decide appeals from and review any order, requirement, decision or determination made by an administrative official charged with the enforcement of any ordinances or local laws adopted pursuant to this Article. It shall also hear and decide all matters referred to it upon which it is required to pass under any such local law or ordinance. The concurring vote of a majority of the Board shall be necessary to reverse any order, requirement, decision or determination of any such administrative official or to decide in favor of the applicant any matter upon which it is required to pass under any such ordinance or local law or to effect any variation in such local law or ordinance. Such appeal may be taken by any person aggrieved or by an officer, department, board or bureau of the village.

D Time of appeal. Such appeal shall be taken within sixty (60) days after the filing of any order, requirement, decision, interpretation or determination of the administrative official charged with the enforcement of such local law by filing with such administrative official and with the Board of Appeals a notice of appeal, specifying the grounds thereof and the relief sought. The administrative official 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. The cost of sending or publishing any notices relating to such appeal shall be borne by the appealing party and shall be paid to the Board prior to the hearing of such appeal.

E The Board of Appeals shall fix a reasonable time for the hearing of the appeal and give due notice thereof to the parties and, not less than ten (10) days prior to the hearing date, publish such notice at least once in the official newspaper designated by the Village Board of Trustees for such purposes, and decide the same within sixty-two (62) days after the final hearing. Upon the hearing, any party may appear in person or by agent or by attorney. The Board of Appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and shall make such order, requirement, decision or determination as in its opinion ought to be made in the premises and to that end shall have all the powers of the officer from whom the appeal is taken. Where there are practical difficulties or unnecessary hardships in the way of carrying out the local law or ordinance, the Board of Appeals shall have the power in passing upon appeals, to vary or modify the application of any of the provisions of such local law or ordinance relating to the use, construction or alteration of buildings or structures or the use of land, so that the spirit of the local law or ordinance shall be observed, public safety and welfare secured and substantial justice done.

F Stay upon appeal. An appeal shall stay all proceedings in furtherance of the action appealed from, unless the administrative official charged with the enforcement of such local law, from whom the appeal is taken, certifies to the Board of Appeals, after the notice of appeal shall have been filed with the administrative official, that by reason of facts stated in the certificate a stay would, in his or her opinion, cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Board of Appeals or by a court of record on application, on notice to the administrative official from whom the appeal is taken and on due cause shown.

G Hearing on appeal. The Board of Appeals shall fix a reasonable time for the hearing of the appeal or other matter referred to it and give public notice thereof by the publication in a paper of general circulation in the village of a notice of such hearing, at least five (5) days prior to the date thereof.

H Time of decision. The Board of Appeals shall decide upon the appeal within sixty-two (62) days after the conduct 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.

I Filing of decision and notice. The decision of the Board of Appeals on the appeal shall be filed in the office of the Village Clerk within five (5) business days after the day such decision is rendered and a copy thereof mailed to the applicant.

§ 250-41. Article 78 proceeding.

A Application to Supreme Court by aggrieved persons. Any person or persons jointly or severally aggrieved by any decision of the Board of Appeals or any officer, department, board or bureau of the village may apply to the Supreme Court for review by a proceeding under Article 78 of the Civil Practice Law and Rules. Such proceeding shall be instituted within thirty (30) days after the filing of a decision of the Board in the office of the Village Clerk or in the office designated by resolution of the Board of Trustees. The court may take evidence or appoint a referee to take such evidence as it may direct and report the same with his or her findings of fact and conclusions of law, if it shall appear that testimony is necessary for the proper disposition of the matter. The Court at special term shall itself dispose of the cause on the merits, determining all questions which may be presented for determination.

B Cost of appeal. Costs shall not be allowed against the Board of Appeals unless it shall appear to the Court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from.

C Preference of appeal to Court. All issues in any proceeding under this section shall have preference over all other civil actions and proceedings.

D Power of Court. If, upon the hearing at a special term of the Supreme Court, it shall appear to the Court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the Court with his or her findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the Court shall be made. The Court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.

E Remedies. In case any building or structure is erected, constructed, reconstructed, altered, repaired, converted or maintained or any building, structure or land is used or any land is divided into lots, blocks or sites in violation of this chapter or of any local law or other regulation made under authority conferred thereby, the proper local authorities of the village, in addition to other remedies, may institute any appropriate action or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance, use or division of land, to restrain, correct or abate such violation, to prevent the occupancy of said building, structure or land or to prevent any illegal act, conduct, business or use in or about such premises. All issues in any action or proceeding for any of the purposes herein stated shall have preference over all other civil actions and proceedings.