HomeMy WebLinkAbout1993-12-07 i
TOWN OF DRYDEN ZONING BOARD OF APPEALS
DE.CEMBE. R 71 1993
• AGENDA :
SERVRITE FOOD SERVICE :
To erect a free standing sign closer than 15 feet from the
NYS right away boundary at 80 Etna Lane .
LAURA LITCHFIELD -•KIMBER :
Leave an existing attached private garage structure closer
than 70 feet from the center of , South Knoll Drive .
MEMBERS PRESENT' S CHAIRWOMAN ANNE EVERETT , ALAN LAMGTTE , JGSEPH
JAY , CHARLES HANLEY AND MARK. VARVAYANIS .
Also present but not limited to : Clinton Cotterill , Henry
Slater , Kevin Deans and Laura Litchfield - Kimber .
The Town of Dryden Zoning Board of Appeals meeting was
opened at 7 : 30 PM by the Chair . Anne Everett . The Board Members
were introduced and the chair . explained the procedure as
follows :
•
We will have a public hearing for two applicants this
evening one is at 7 : 30 the other is at '7 : 45 . At that time I
will do certain procedures that I have to do as the Chair . The
applicant will have the opportunity , to present additional
information . The Board will question the applicant and then the
Public will also have a chance to address the issues . At the
end of the Public Hearings the Board will have a deliberate
session . At that time the Board will discuss the variance
which is before us . Although we can ask you questions for
clarification at that point you can ; not ask us questions . Each
is welcome to stay for the entire evening or you may phone the
Code Enforcement Officer in the morning for the decisions . The
Board will state the findings and vote on each application
tonight .
PUBLIC HEARING FOR SERVRITE FOOD SERVICE
7 : 35 PM
The Public Hearing for Servrite Food Service was opened at 7 : 35
PM with the Chair . reading the Legal ' Notice which was published
in the Ithaca Journal .
a
ZBA 12 - 7 -93 FAG .
The Chair . noted that she had received the notice of appeal
in a timely fashion . The request is for an area variance in an
" RB1 " Zone . The criteria , effective July 11 199 , which the
Board will follow in considering the application was read as
follows
The Zoning Board of Appeals shall have the power upon an
appeal from a decision or determination of an administrative
official charged with the enforcement of such ordinance or local
law to grant area variances from an , area or dimensional
requirement of such ordnance or local law .
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 grunting 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 variances ( 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 .
The Chair stated that those were the things which the Board
takes into consideration when considering an area request .
The Chair noted there was one letter signed by Avey Rapos
dated 12 / 1 / 93 this is a letter sent by Henry to all properties
owners within 500 feet and states : " I do disapprove "
The file contains an application from the applicant and a
letter from Jim Schug to Ken Norton , NYS Dept . of
Transportation , more or le > s saying the Servrite would like to
place their sign 6b feet from the center of Rt . 13 and 1E0 feet
from the center of Etna Lane . It goes on to say that it is a
Commercial Business property located in a residential zone by
special permit . Servrite has cleaned up the underbrush and
brought their property into a parklike setting , and is in favor
of having the sign placed where Servrite would like to have it
placed .
A letter from James Konopelski from the Regional Director of
Transportation Office and states the sign would meet the
qualifications for an on — remise sign and would not be subject to
regulation by the State of New York . , He suggest that the
Cortland / Tompkins Resident Engineer , . should be consulted to
ensure that the sign site is outside the right - of —way of Route
a
ZBA 12 -7 - 93 PG . 3
A letter has also been received from David Putnam of T .
G . Millers Engineers and Surveyors and says he doesn ' t have a
• problem with the location and does not oppose the variance . The
sign location and size will not obstruct the sight distance and
he says DOT should be notified after the sign location is staked
out and prior to erection .
A map has been provided and a letter from Dan Brown of
SerVrite goes on to explain why the SerVrite should have the
sign placed as requested .
There is also a letter from Gordon Reimels , the Resident
Engineer and he doesn ' t have a problem . He says it is the
responsibility of the company owners to erect the sign outside
of the highway right - of -way .
Kevin Deans representing the applicant stated he had nothing
further to add and stated that the letter from Dan Brown spoke
to the feelings for the variance .
The Chair asked if the pictures which were mentioned in Jim
Schugs letter were available ?
Henry Slater stated they were not .
QUESTIONS FROM THE BOARD
• A . Everett : Where exactly is the sign going to be in relation
to that nice line of trees ?
K . Deans : It would be in front of that line of trees . One
of the desires of having it up in front is we
would not have to cut down those trees . He stated
that there was no view from Rt . 13 and many of the
trees would be lost if the sign were placed close
to the building where the state wanted . The sign
is to be placed in the same area where it was
before the road was constructed .
A . Everett : It is not inside the DOT right - of - way ? It is
inside of your property ?
K . Deans : Yes it is on our property .
A . Everett : Describe the sign ?
K . Deans : It is 4 foot tall by 8 foot long . One sign with
two end pillars . It is an attractive sign , done
by Cayuga Signs . The sign is in conformance with
the Zoning regulations .
•
1 `
ZBA 1 ' - 7 - 93 FAG . 4
A . Everetta It is E5 feet from the center of Rt . 13 ?
• K . Deans : That is correct and 120 from Etna Lane , center of
the road . Might on the edge of the trees .
M . Varvayanis : In paragraph three it is stated that if you
had not granted the right - of -way to the
State . Did you grant it willingly or was
there fear of them taking it ?
K . Deanso Your questing whether, the requested area variance
is substantial ?
M . Varvayanis : Right .
K . Deanso The right - of -way that ' the state took was
irregular , it was granted willing based on their
request to us . On the Etna Lane you actually
entered in on an angle on both sides so they took
quite a bit of property on that line .
A . Everett : How many trucks , vehicles enter the property each
day .
K . Deanso There are probably 151' office personnel and 6
vending personnel that are in and out of the
facility each day .
• M . Varvayanis : One trip ?
K . Deanso Yes . Mostly one trip a day and a few delivery
vehicles come in and out , however they are on a
random bases through the week .
A . Everetta This is mainly to advertise where the business is ?
K . Deans : Correct it is our corporate offices so we do have
visitors such as sales , banking personnel ,
professional people who do visit the site . With
us set back in down Etna Lane , people do not see
the building and it is difficult to define our
location . We asked for turning lanes on RT . 13
which were not done . At the rate of travel on RT .
13 unless there are good site lines to know , that
is where you want to turn , there is a safety
issue .
QUESTIONS FROM THE PUBLIC
NONE &
• HEARING CLOSED B a 50 PM
ZBA 12: 7 - 93 PG . 5
PUBLIC HEARING - LAURA LITi:HFIELD -KIMBER
•
The Public Hearing for Laura Litchfield - Kimber was opened by
the Chair . who stated the applicant is seeking relief from
Dryden Town RB Zone District , Section 703 . 1 requirement for all
structures to be not closer than '70 feet from the center line of
any public road .
The Chair noted the notice of appeal was received in a
timely fashion . The legal notice published in the Ithaca
Journal was read .
The application was read as follows %
" Upon closing on the sale of the house , it was discovered
that a violation of the Town ' s setback line existed as roughly
four feet of the garage stands over that line . ( please see
attached survey map . ) The residence was built 21 years ago and
had presumably been issued a building permit for this , though it
violated the set back line . Unfortunately , though the house had
been sold three times previously , this violation remained
undiscovered until the closing in late October ( 1993 ) . The bank
who had prepared mortgage papers for me had begun to reconsider
this loan for this violation . . . . and it goes on to say . . . . . I
am concerned , however , with the violation as it exists now for
the risk it may pose for me when it comes time to sell the house
• again .
There is a map slyowin .4 the house with approximately five feet
from the structure protruding over the line .
QUESTIONS FROM THE BOARD
A . Everett : Is the lot in compliance with all other zoning
ordinance regulations ?
L . Litchfield -Kimber : According to the inspections that were
going on when I was going through the
acquisition of title insurance . That ' s
when my attorney who also sells title
insurance found it and according to
everything else he said everything else
was okay .
A . Everett : It ' s five feet of the garage ?
L . Litchfield -Kimber : Yes .
•
ZBA 12 - 7 - 93 PG . 6
QUESTIONS FROM THE PUBLIC
• C . Cotterill : Stated that he deeded the road to the town , built
the house and sold it . He is not sure when the
property was resurvey , if they checked to the
center of the highway . Sibley Stewart issued a
building permit to Colder - Graver . I gave
Colder-Craver a contract to build on the lot , and
they were to pay me for the land when I deeded
it . Colder -Craver got the permit , they built the
house ( shell ) and Sibley Stewart was suppose to
check the set back . So if there are any errors
between Colder-Craver who got the building permit
and Sib Stewart who was the Town Zoning Officer I
can not say . Colder - Craver went bankrupt and I
took the house back and George Clark finished the
house and I sold it . I was not involved with
permits or checking the set backs . I know I sold
it to Ron Chase , Ron Chase sold it to Ken Bronge .
Ken Browg sold it to someone else and who ever
that was sold it to these people . There has never
been a question until now . Talking with the
neighbors who received notice of the appeal
couldn ' t believe there would be any problem after
20 years .
• PUBLIC HEARING CLOSED
6 : `,6 PM
EACH BOARD MEMBER DURING ITS DELIBERATION WROTE INDIVIDUAL
FINDINGS FOR EACH VARIANCE TO BE DISCUSSED AS A GROUP . .
DELIBERATION FOR SERVRITE FOOD SERVICE
J . Jay : Stated he agreed with the statements / wording
made by Dan Brown in his letter of November
17 , 1993 for findings .
M . Varvayanisa Disagreed and stated he didn ' t like the way it
had worded it . As I pointed out in paragraph
three where he said " had we not granted the
right - of -way to the State " that means they did
it voluntarily which means the problem was
self created . In the second paragraph " no way
to achieve the benefits sought without causing
a detriment to the area " I don ' t think you.► can
put in finding like that and turn around and
vote for it .
C . Hanley : Excused from meeting to return shortly and
• went on record as stating " I can ' t imagine a
problem with either finding / variance , either
one of these two .
ZBA 12 - 7 - 93 PG . 7
A . LaMotte : Are we wide of the mark to call that a
Commercial Corridor ?
A . Everett : Didn ' t know . . . . questionable residential .
M . Varvayanis : Is this the same sign that was there before ?
K . Deans : Yes it is .
A . Everett : It ' s not a newer , bigger , version , same one ?
K . Deans : Name one .
J . Jay : You had to move it because of the
construction ?
K . Deans : Yes , it was uprooted because of the
construction .
M . Varvayanis : I think if you are going to put the same sign
in the same spot that pretty much covers
character of the neighborhood .
J . Jay : Same spot ?
K . Deans : Same sign , different spot because of the
right - of -way .
A . LaMotte : At Mr . LaMotte ' s invitation Henry Slater
pointed out on the map where the sign needed
to be placed in order to be in compliance and
identified wording on the map .
M . Varvayanis : Stated he thought his most important finding
was his last . " GRANTING THE VARIANCE WOULD
ALLOW THE PROPERTY OWNER TO PLACE THE SIGN IN
FRONT OF A LINE OF WELL DEVELOPED TREES SAVING
THEM AND IMPROVING THE PHYSICAL AND
ENVIRONMENTAL CONDITIONS OF THE
NEIGHBORHOOD " . Then I said " THERE IS NO
UNDESIRABLE CHANGE IN THE CHARACTER OF THE
NEIGHBORHOOD SINCE THE SAME SIGN IS GOING TO
BE REPLACED " ,
A . Everett : THE ALLEGED DIFFICULTY WAS CREATED WHEN THE
RT . 13 IMPROVEMENT PROJECT ENLARGED THE D . O . T .
RIGHT - OF -WAY . THE SIGN NEEDED TO BE MOVED TO
A MORE VISIBLE PLACE .
No other finding were discussed .
•
ZBA 12 - 7 - 93 PG . 6
THE CHAIR READ THE FOLLOWING THREE FINDINGS :
i ( 1 ) Granting the variance would allow the property owners to
place the sign in front of a line of well developed trees saving
them and improving the physical and environmental conditions .
( 2 ) There will be no undesirable change in the character of the
neighborhood since the same sign is going to be installed . ( 3 )
The alleged difficulty was created when the tit . 13 improvement
project enlarged the DOT ROW . The sign needed to be moved to a
more visible place .
Mark Varvayanis moved to accept the findings as written .
Second by Joseph Jay .
Discussion .
VOTE YES ( 5 ) A . Everett , C . Hanley , J . Jay , A . LaMotte , and
M . Varvayanis .
NO ( 0 ) ABSTAINED ( 0 )
JOSEPH JAY MOVED TO GRANT A VARIANCE BASED ON THE FINDINGS .
SECOND BY MARK VARVAYANIS
DISCUSSION
VOTE YES ( 5 ) A . Everett , C . Hanley , J . Jay , A . LaMotte , and
M . Varvayanis .
NO ( 0 ) ABSTAINED ( 0 )
DECISION : VARIANCE GRANTED .
DELIBERATIONS FOR LAURA LITCHFIELD - KIMBER
J . Jay was concerned that the wording_ was such that it only
applied to this or existing homes and not to new construction .
C . C: otterill : The road was a gravel road at that time and the
center of the road might have changed when it was paved .
ZNA 12 - 7 - 93 PG . 9
• Ann Everett read the following findingsa
( 1 ) A building permit was issued and the house built twenty
one years ago . The discrepancy of nine feet was recently
noticed .
( E ) There will be no undesirable change in the neighborhood .
Mark Varvayanis moved to accept the findings as written .
A second to the motion was made by Joseph Jay .
Discussion :
VOTE YES ( 5 ) A . Everett , C . Hanley , J . Jay , A . LaMotte , and
M . Varvayanis .
NO ( 0 ) ABSTAINED ( 0 )
CHARLES HANLEY MOVED TO GRANT A VARIANCE FOR THE EXISTING
STRUCTURE AT 52 SOUTH KNOLL DRIVE .
SECOND BY MARK VARVAYANIS
DISCUSSION
VOTE YES ( 5 ) A . Everett , C . Hanley , J . Jay , A . LaMotte , and
M . Varvayanis .
NO ( 0 ) ABSTAINED ( 0 )
DECISION : VARIANCE GRANTED ,
e v • • v • v v e v e v v a
MEETING ADJOURNED
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41
V I i Mr I
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l�fififi111 BUILDINGS
knowledge of the restrictions does not necessarily remove the self-
created hardship factoril" but it may be considered . " Thus, expen -
ditures made in good faith in reliance on an invalid .budding
permit subsequently revoked may be considered in determiining .
whether a variance should be granted . " An applicant who im- �x
3i proves land adjacent to the site of the proposed variant use is not ,
it in a better position than one who improves the subject property :
. ; with knowledge of the :restrictions. " fit:
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to
Al
44
§ 279. Effect of nearby uses or variances similar to variant use
lo
1 , A landowner is not entitled to a variance simply because `
adjacent land is being used for the purpose proposed in his
;v
g " application . " The proximity of a use identical to the one for
' Pt ` which a variance is sought does not relieve the applicant of his
, l
P I s burden of proving that his land would not yield a reasonable 32`;
i return if it was confined to uses authorized by the zoningi4
�. regulations. " The nearby existence of illegal"' or nonconforming92
vti A uses similar to the one sought by the applicant does not require Ya
the board of appeals to 'conclude that the applicant's land is
subjected to unnecessary hardship.
ol 'o ,r ,
The existence of one ors more variances of the type sought byn
<" the applicant does not entitle such applicant to the variance he
� .: seeks . He must prove unnecessary hardship, and the existing
too
N Y�^
% 85, Pagnotta v Roberts ( 1950, Sup) 89. People ex rel . Fordham Manor
101 NYS2d 836. Reformed Church v Walsh ( 1927) 244
NY 280, 155 NE 575. `-
86. Hoffman v Harris ( 1964, 2d +r ;
`u Dept) 21 AD2d 800, 250 NYS2d 767, 90. 'People ex rel. Werner v Welsh ,y`
„ affd 17 NY2d 138, 269 NYS2d 119, ( 1925) 212 AD 635, 209 NYS 454,
oo
216 NE2d 326.
affd 240 NY 689, 148 NE 760. :
87. Jayne Estates, Inc. v Raynor 91. Von Elm v Zoning Board of pry
r. ( 1968) 22 NY2d 4179 293 NYS2d 75, Appeals ( 1940) 258 AD 981), 17
NYS2d 548 (two-family home; single-
i' 239 NE2d 713 ; Automotive Clutch M :
1 family district)" People ex rel. Santora
Rebuilders, Inc. v Long Beach ( 1977 , v Kreuter ( 1938) 253 AD 8,98, 1 v'x°
2d Dept) 59 AD2d 941 , 399 NYS2d 462. NYS2d 879.
F
92. Tenlan Realty Corp, v Board of a")
89. Peter Pan Playland, Inc. v Foley Standards & Appeals ( 1937) 251 AD mt;
( 1961 , 2d Dept) 13 AD2d 546, 212 311 , 296 NYS 740, affd 276 NY 594,
NYS2d 759. 12 NE2d 592.
286 12 NY Jur 2d
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BUILDINGS § 280
e
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i x:
eve
variant uses will be considered, along with all of the circum- r' ' '
stances of the case, in determining whether such hardship exists . d3I' ll„ ,
The board of zoning appeals will consider the effect on the i ; .E � '
applicant's land of the uses previously permitted by the board, butJ7 '1 "fix
_ it will also consider the cumulative effect on the area of existing � +t ,
uses plus the new one proposed by the applicant. 8° The redrawing
Yr ,,, .
rI lee*
of a district boundary, through an amendment to the zoning
r ordinance, does not always impose unnecessary hardship upon the .
owner whose land is adjacent to the new line. 85 A landowner is
not entitled to a variance simply because his property is located
on or near a line which separates two districts . ' Whether the '
proximity of an applicant's land to the line marking the point
where uses are permitted which may be incompatible with those
allowed in the applicant's district results in unnecessary hardship " '
, is a question within the competence of the board of zoning
appeals . 97
3 . AREA VARIANCES § § 280 -289]
§ 280. Requirement that practical difficulties be shown Y ,• ..
While the zoning enabling acts permit boards of zoning appeals
to grant variances where there are practical difficulties "or"
unnecessary hardship,8" the courts have distinguished use vari-
ances from area variances," and generally hold that the unneces-
, t .
Me
t,
93. Rosenberg v Murdock ( 1955 , 96. Seinfeld v Murdock ' ( 1940) 259 r
Sup) 139 NYS2d 468, revd on other AD 694, 20 NYS2d 464, reh den 259 ' f
grounds 286 AD 1019, 144 NYS2d AD 1074, 21 NYS2d 610 and app � • : e{' r k'
Y 769. dismd 285 NY 513, 32 NE2d 817 and x'rfell _
94. Rosenberg v Murdock 1955, affd 285 NY 718, 34 NE2d 488 .
ieee
r` s
Sup) 139 NYS2d 468, revd 286 AD
101 % 144 NYS2d 769. 97. Seinfeld v Murdock ( 1940) 259
A denial of an area variance is not AD 694, 20 NYS2d 464, reh den 259
AD 10742 21 NYS2d 610 and app
an abuse of discretion simply because dismd 285 NY 513 , 32 NE2d 817 and ty :,the board had on previous occasions
granted variances to persons similarly affd 285 NY 718, 34 NE2d 488.
w .
situated. Mastroianni v Board of Zon- gg CLS Gen City Law § 81 subd 4, ; ` x3 I,t
'• ing Appeals ( 1961 ) 36 Misc 2d 343,
235 NYS2d 213 . CLS Vill Law § 7-712 subd 2(c), CLS = - '
Town Law § 267 subd 5 .
95. Walsh v Murdock ( 1958) 15
lee
Misc 2d 279, 179 NYS2d 988. 99. § 264, supra. :
> t
12 NY Jur 2d 287
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§ 267-a
CONSOLIDATED LAWS SERVICE 1993 S
9 . Filing of decision and notice . The decision of the board of appeals on the appeal a
• shall be filed in the office of the town clerk within five business days after the day n
such decision is rendered , and a copy thereof mailed to the applicant. o
10. Notice to park commission or planning agency . At least five days before such tc
hearing, the board of appeals shall mail notices thereof to the parties ; to the ei
regional state park commission having jurisdiction over any state park or parkway p,
within five hundred feet of the property affected by such appeal ; and to the county , in
metropolitan or regional planning agency, as required by section two hundred 2
thirty-nine-m of the general municipal law, which notice shall be accompanied by a
full statement of the matter under consideration , as defined in subdivision one of
section two hundred thirty-nine-m of the general municipal law .
11 . Compliance with state environmental quality review act. The board of appeals
shall comply with the provisions of the state environmental quality review act under
article eight of the environmental conservation law and its implementing regulations
as codified in title six, part six hundred seventeen of the New York codes, rules and
regulations.
(Added, L 1993)
12. Rehearing. A motion for the zoning board of appeals to hold a rehearing to
review any order, decision or determination of the board not 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
171 J s ' 'w to the same notice provisions as an original hearing. Upon such rehearing the board .
r c
may reverse, modify or annul its original order, decision or determination upon the
unanimous vote of all members then present, provided 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. 1
t
r4 � ' HISTORY: 3 , f
Add, L 1991 , ch 692, § 2, eff July 1 , 1992.
' r Sub 2, amd, L 1992, ch 248, § 4, eff July 1 , 1992. a
d The 1992 act deleted at fig 1 "immediately" . v
Sub 3 , amd, L 1992, ch 248, § 5, eff July 1 , 1992. Q
a
Sub 4, amd, L 1992, ch 248, § 6, eff July 1 , 1992. (1 s The 1992 act deleted at fig 1 "an" and at fig 2 "Such board shall have the authority c,
to call upon any department, agency or employee of the town for such assistance a
as shall be deemed necessary and as shall be authorized by the town board. Such a
department, agency or employee shall be reimbursed for any expenses incurred as c{
` a result of such assistance. ".
Sub 5, amd, L 1992, ch 248, § 7, eff July 1 , 1992. t}
The 1992 . act deleted at fig 1 "officer" and at fig 2 "The cost of sending or gi
publishing any notices relating .to such appeal shall be borne by the appealing bf
' . party and shall be paid to the board prior to the hearing of such appeal. at
Sub 7, amd, L 1992, ch 248 , § 8, eff July 1 , 1992, L 1993, ch 208, § 7, eff July 6, th
1993 . en
Sub 12, add, L 1993, ch 208, § 8, eff July 6, 1993 . ali
RESEARCH REFERENCES AND PRACTICE AIDS: de
I Annotations: of
Construction and application of statute or ordinance requiring notice as prerequisite (c)
to granting variance or exception to zoning requirement. 38 ALR3d 167. mi
Validity, construction, and application of statutes making public proceedings open tin
to the public. 38 ALR3d 1070. saf
t 4. Im
§ 267-b. Permitted action by board of appeals variar
1
tions .
1 . Orders' , requirements, decisions, interpretations, determinations. The board of the p{
104
k'
i
1
LL
t Supp TOWN LAW § 267 -b
appeals may reverse or affirm, wholly or partly , or may modify the order, require-
' ment, decision, interpretation or determination appealed from and shall make such {{
order, requirement, decision, interpretation or determination as in its opinion ought {� "
to have been made in the matter by the administrative official charged with the ji
enforcement of such ordinance or local law and to that end shall have all the j
a powers of the administrative official from whose order, requirement,' decision,
interpretation or determination the appeal is taken.
2. Use variances. (a) The board of appeals, on appeal from the decision or determi-
nation of the administrative official charged with the enforcement of such ordi-
nance or local law, shall . have the power to grant use variances, ' as defined
herein .
°a (b) 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 of appeals that' for each and everyIt I `
permitted use under the zoning regulations for the particular district where the I
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 E
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 .
• (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 proven by the applicant, and at the same time preserve andto
l x
protect the character of the neighborhood and the health, safety and welfare of
the community .
3 . 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 such ordinance or local law, . to grant area variances' as l
defined herein . TA
b In making its determination, the zoningboard of appeals shall take into
consideration t
he benefit to the applicant if granted, as weighed
PP the variance is Ob i*$ �1 I , f '.
against the detriment to the health, safety and welfare of the neighborhood or t ,`t,
community by such grant. In making such determination the board shall also , , t }-. , 1
consider: ( 1 ) whether an undesirable change will be produced in the character of
cSG}i{,i' f
the neighborhood or a detriment to nearby properties will be 'created by the +iw rr,
I go
granting of the area variance; (2) whether the benefit sought by the applicant can {tl ; ,
be achieved by some method, feasible for the applicant to pursue, other than an 1.
! •lt "fY,4 c
area variance; (3) whether the requested area variance is substantial; (4) whether i t}^ i `$ jol P ,`t Af, ti� a ?l III .
the proposed variance will have an adverse effect or impact on the physical or c 3 { 11 ``l; �s i fst ` ; ;
environmental conditions in the neighborhood or district; and (5) whether the ` (j � �s,4 Y; . ,`c,
I.
-created, which consideration shall be relevant to the
alleged difficulty was self F�tit ,�, faff, , • ': `"c
t necessarily preclude the granting a+ , <` r`` °*'i%
decision of the board of appeals, but shall no `;l '`
of the area variance. .
( :
(c) The board of appeals, in the granting of area variances, shall grant the i, .
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 .
4. Imposition of conditions. The board of appeals shall, in the granting of both use
evariances and area variances, have the authority to impose such reasonable condi -
tions 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 the
105
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§ 267 =b CONSOLIDATED LAWS SERVICE 1993
7
zoning ordinance or local law, and shall be imposed for the purpose of minimizing
• any adverse impact such variance may have on the neighborhood or community .
HISTORY: 11
Add, L 1991 , ch 692, § 3 , eff IJuly 1 , 1992.
Sub 1 , amd, L 1992, ch 248, § 9, eff July 1 , 1992 .
The 1992 act deleted at fig 1 "Interpretations" and at fig 2 "or" . I
Sub 2, par (a), amd, L 1992, ch 248, § 10, eff July 1 , 1992 .
The 1992 act deleted at fig 1 ' "authorizing a use of the land which otherwise would
not be allowed or would be prohibited by the terms of the ordinance or local
law" .
Sub 2, par (b), amd, L 1993 , ''ch 208, § 9, eff July 6, 1993 .
The 1993 act deleted at fig 1 , "( 1 ) under 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" .
Sub 3, par (a), amd, L 1992, 'ch 248, § 11 , eff July 1 , 1992.
The 1992 act deleted at fig' 1 "an" and at fig 2 "from the area or dimensional
requirements of such ordinance or local law" .
Sub 4, amd, L 1992, ch 248,, § 12, eff July 1 , 1992, L 1993, ch 208, § 9, eff July 6, §
1993 . i1
The 1993 act deleted at fig 1 and/ or the period of time such variance shall be in o.
effect' . st
RESEARCH REFERENCES AND PRACTICE AIDS:
Annotations: e7
Construction and application of statute or ordinance requiring notice as prerequisite of
j. to granting variance or exception to zoning requirement. 38 ALR3d 167 . fig
Validity, construction, and application of statutes making public proceedings open in
�. to the public. ' 38 ALR3d 1070, a
yE
th
§ 267-c. Article seventy-eight ,proceeding H
1 . Application to supreme court by aggrieved persons. Any person or persons,
ge
jointly or severally aggrieved by any decision of the board of appeals or any officer,• d(department, board or bureau of the town, may apply to the supreme court for de
review by a proceeding under article seventy-eight of the civil practice law_ and inrules. Such proceeding shall `be instituted within thirty days after the filing of a cc
e
decision of the board in the office of the town clerk' .
2. Costs of appeal. Costs shall not be allowed against the board of appeals unless it Hl
shall appear to the court that" it acted with gross negligence or in bad faith or with
malice in making the decision' appealed from.
t 3 . Preference of appeal to court. All issues in any proceeding under this section RI
shall have preference over all 'other civil actions and proceedings.
4. Power of court. If upon the hearing at' the supreme court, it shall appear to the
z ' - 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 determining. all questions which may be presented
Iffl for determination . '
;t ;tc4`v HISTORY: p
;1 � fir • Add, L 1991 , ch 692, § 4, eff July 11 1992. Tov
f'. Sub 1 , amd, L 1992, ch 248, § 13, eff July 1 , 1992. tion
The 1992 act deleted at fig 1 "or in the office designated by resolution of the town wit]
board. The court may take evidence or appoint a referee to take such evidence as
fielc
it may direct and report the same with his or her findings of fact and conclusions use
106
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