HomeMy WebLinkAbout1979-03-19 TOWN OF GROTON APPEALS BOARD INFORMATIONAL MEETING
Held in the Town Hall , Groton , New York
Monday - March 19th , 1979 - 8 PM
PRESENT : G . Hoy - Chairman* G . Evans - County Planning Board
F . Fouts * T . Robinson - Groton Town Supervisor*
G . Bushnell* R . Gleason - Chairman - Town Planning Board*
F . Pierson' J . Bell - Recording Clerk*
Janet Bell
- Denotes those present .
Mr . Hoy called the meeting to order at 8 PM
and introduced Mr . Evans to the other members of
the Board . He then turned the meeting over to
Mr . Evans ,
G . Evans : I have prepared some material for you to look at while I ' m
talking and I will be looking at it too because I have
trouble remembering after supper what I decided in the
afternoon I was going to say .
(Mr . Evans handed out material to all present plus
a copy for Janet Bell who was not at the meeting . )
G . Evans ; Part of the reason I ' m here is to carry out a function of the County
Planning Board which is established in the County charter and it ' s
called communication systems . Various towns and villages and the
city in the County are supposed to get technical planning assistance
from the County Board whenever they want it and whenever we have the
man power to do it . So I have been asked to talk primarily about .
the Board of Zoning Appeals functions and so on which was precipitated ,
I believe , by the work your Town Planning Board is doing in revising
the Town Zoning Ordinance and some of the sections I suggested they
adopt were read by Mr . Hoy and he asked me to come .
Now , I ' m going to go over a number of things and I ' m going to assume
that you already know most of these but I ' ll go through them in a
systematic way trying not to overlook anything so if there are any
questions , or I 'm talking about something that is so well known and
you are not interested in , stop me and tell me what the situation
is and I ' ll go on .
Now the item here I handed out to you is a xerox copy of the section of
New York State Town Law Section 267 which establishes the Board of
Appeals and ennumerates its various powers and duties . I have handed
this out simply as a handy reference . On the first page , the top
section , in very brief form , has a number of Court decisions regarding
zoning appeals and by scanning over them briefly you can feel out some -
what some of the material that is in the law itself .
Now the powers of the Zoning Board of Appeals are established in
Section 267 , paragraph 2 , and on the second page you will see
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G . Evans : " such Board of Appeals shall determine and decide . . . . . . . . "
Now there are two main functions , the first to hear and
decide appeals from decisions of the zoning officer . Now
this is an appeals function . It ' s a quasi - judicial function
and the power comes directly from the language of the State
law and the guidance on making these decisions comes from the
case law . What I mean by case law are these items that are
summarized on the first page of this . It says such and such
a case which was decided by the New York State Court of
Appeals held so and so . We will be referring to this from
time to time as we move on .
Now if you read through this paragraph 2 on the second page
it says "decide appeals and review . . . . . . . " and so on but it
does not give you a great deal of detail about which way to
decide what . It does not give you the criteria upon which
to base these decisions and those criteria are what have
gradually evolved from case law .
There has been zoning in New York State for 62 years now with
a lot of court cases and from these cases gradually the
guidelines for making appeals decisions have evolved .
G . Hoy : Do you mind if we ask questions as you go along ?
G . Evans : No , go ahead .
G . Hoy : Could you explain to me why the Town Board appoints this Board
- -why- -now you ' re asking us to set up guidelines for our own
Board why is it not the Town Board ' s function to set up the
guidelines for us as long as they appoint us ?
G . Evans ; Well , I ' m going to have to guess on this but I think , in the
first paragraph under section 627 the State law says you do
it .
G . Hoy : And we do it for all the members that follow us on the Board ?
G . Evans : That ' s right except if they don ' t like them they can change
them . You have an annual organization meeting the first of
the year where you get your members . That ' s the usual
time when the Board would review its by- laws and you could
then make any revisions you feel are called for .
Now , back to the appeals . Out of court decisions there have
evolved two general types of appeal . One is an appeal as to
the interpretation of the ordinance , - - that is there is a dis -
agreement by the applicant for the permit and the zoning
officer and the applicant may then appeal to this Board
as to whether the zoning officer is interpreting it right
or not . The second type of appeal is called a variance . No
disagreement of what the ordinance says but applicant is asking
to do something the ordinance says he can ' t do . We ' ll get in-
to variances in more detail later .
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G . Evans : Now a second general function of the Board of Appeals , as listed
here in paragraph 2 on the second page is to hear and decide all
matters referred to it or on which it is required to pass under
- - - - - - - - - - - - of the zoning ordinance . What this means is that
the Town Board in any of its ordinances can stipulate that some
matter be referred to this Board for its review and decision and ,
as a matter of fact , in the zoning ordinance the Town Board has
provided that special permits be referred to this Board for re -
view and decision . Now this is an administrative function and is
different from an appeals ' function . The difference is an ad -
ministrative function you simply see if the applicant has met
certain criteria and if he has you issue the permit . Now the
power to hear and decide - - is delegated , or may not be delegated ,
by the Town Board . The State law allows the Town Board to do it
but they don ' t have to so that the power for you to carry out this
function comes directly from your own Town Board and the guide-
lines on making the decisions must also come from the Town Board .
I don ' t have specific information about the automotive repair shop
matters that you were dealing with earlier on . Maybe you ' re
still dealing with them , I don ' t know but anyways I believe this
was a case where the Town Board delegated to you the responsibility
of reviewing applications and along with that they did have to tell
you what the main decision criteria were . Doesn ' t have to be in
detail but do have to give you some guidelines .
Now , about variances , and I ' m reading from the second page Section
267 ( 2 ) .
(Mr . Evans read aloud from this and gave an example of a case a man
from - - - - - - - - - - - - - had who wanted a variance to put a garage on his
property . )
G . Evans ; Now there are specific criteria that have been developed in the case
law which have to do with area variance and they are listed here .
There are five of them and the Court case which was cited as having
finally developed these criteria and decided them is Wachsberger vs .
Micholis . What this means is if an appellant says he wants to do
something your regulations say he cannot , in regard to dimensions ,
heighth of building and that sort of thing , you look at these five
criteria to see if they are met . Another variance occurred recently
- the minimum lot requirement was 30 , 000 sq . ft . The guy had a lot
7 , 000 sq . ft . and wanted to divide it into 3 , - -well that ' s not slight .
It simply wouldn ' t qualify as a slight variation .
The second one here in a rural town , this is rarely a problem . This
is one that primarily refers to urban areas .
The third - Substantial Change . . . . .. . Now the example I gave about the
guy who wanted to put his garage on the narrow side . If his neighbors
house had been close by it might have been argued it would be a
detriment to his neighbor and maybe he ought to put it elsewhere .
The fourth item - Practical Diffcupltyn . in other words have
you looked at this seriously and thought about it and other ways of
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V
G . Evans ; doing it without getting a variance and the fifth item - - -
( T . Robinson , Town Supervisor , came in at 8 * 25 PM
to attend the meeting and Mr . Evans gave her the
papers he had handed out to the Board of Appeals
members . )
G . Evans : Now I put a note down at the bottom , which will not have much
meaning at this point , but it will later on .
"Acquiring the property knowing these conditions exist
does not disquality the applicant from getting a variance . "
If he bought the 7 , 000 sq . ft . lot knowing the requirement of
30 , 000 sq , ft , this , in itself , does not disqualify him getting
a variance . We ' re talking about area variances only though .
Now the next page is variances as to permitted facilities or
activities which is called "use variance " .
(Mr . Evans read aloud : "in this type of variance . . . . . etc . "
The actual language in the Town law is - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - - - - - - - - - on unnecessary hardship and over
the 62 years that zoning has been litigated in this State
practical difficult and unnecessary hardship have been separated
out so when you ' re talking about - area variance you ' re talking
about practical difficulty and when you ' re talking about use
variances you are talking about unnecessary hardship . The
courts have defined unnecessary hardship . The finding of un -
necessary hardship is the finding of these 5 points below and
before granting a use variance the Board of Appeals would make
findings on all five of these points .
(Mr . Evans read the 5 points aloud . )
This is a principle of any administrative law and that is you
seek administrative remedies first then you go to judicial re-
medies so if there is any possible way to do what this person
wants under a special permit you seek that first . Now since
your Board has both the special permit function and variance
function this person could come to you with a special permit and
you would say no and the only place he could come for appeal would
be back to you again which would be a little discouraging I suppose
but that is the way it has to work .
. The second point "the . . . . . 6f facilities . . . . . . " The emphasis here
should go on any . What they are saying is that in the District
Regulations of your ordinance for the district the land is in none
of those things that are permitted are reasonable for me to do .
The third item (Mr . Evans read this aloud . ) This has to do with
neighborhood conditions , - - the remedy would be to re-write the
zoning ordinance , the district regulations are not appropriate for
that area if every lot in the whole neighborhood is similarly
affected .
The fourth item (Mr . Evans read this aloud ) Now here we ' re talking
about activities , about building types , this sort of thing . For
example an area was developed for houses on small lots and the
people who bought those lots and invested in those houses did so
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h •
G . . Evans : relying on the assumption that this would be a residential area
that the vacant lots would , in time , be developed as houses .
This is what I mean by stability of the ordinance and the fifth
item (Mr . Evans read this aloud) . In other words you can ' t buy a
lot and then complain that you cannot develop it under the ordin-
ance if the ordinance was in effect at the time you bought the lot .
Now the note at the bottom of the page and "acquiring the property
. . . . . . " This is an important distinction between the use variance
and the area variance .
These five items I have listed their sources - - the first is just
general principles of administrative remedies , points 2 , 3 , 4 are
from the opinion of Otto vs . S - - - - - - - - and point 5 from the opinion
on Clark vs . Zoning Board of Appeals in the Town of H- - - - - - - - - .
Now , I would like you to turn 2 pages down and look at the outline
of district regulations in the proposed zoning ordinance .
As proposed now plan to keep the same districts you have now .
. The minimum lot area through - - - - - - - - - - - variance if - - - - - - - - - - - - -
wants some variance in the regulations of those sections - - this
would be a dimension or area variance . Facilities required for a
zoning permit etc , etc , a variation in those three would be a
use variance .
Now this is not iron clad . This is just a guide because in your
regulations you have some provisions that yards are a certain require-
ment . However , with a special permit , that can be a little smaller
so a variance in yard requirements may not be a dimension variance
at all , may be special permit .
The last two items are administrative function , - - special permit by
this Board but a different type of function .
Are there any questions on this as far as I have gone ?
T . Robinson : How can you prove acquiring the property knowing the condition
exists which keeps appellant from getting a variance ?
G . Evans ; If you can determine the time the person bought the property and
whether the ordinance was in effect or not . That ' s all the proof
you would need . A person who would buy something knowing perfectly
well couldn ' t build on it could allege he didn ' t know any better .
The occasions when a use variance can legitimately be granted are
few and far between , - - in fact most States do not recognize this
type of variance at all .
One of the important things to keep in mind is the concept of un-
necessary hardship refers to the lot or the building . It has
nothing whatever to do with any person . A person or his financial
situation or health .
G . Hoy : Doesn ' t have anything to do with health ?
G . Evans : Absolutely irrelevant . It has to do with the lot or the building not
of the person . There ' s a strong urge to function as a relief agency
when you have the opportunity to help someone out . You like to do
it but the fact is the Board of Appeals doesn ' t have the authority
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G . Evans : to grant someone relief on the basis of their personal or
health circumstances . You ' re simply overstepping your powers .
You can , of course , send them to some other agency with re -
commendations galore but you do not have the authority to
grant them relief .
G . Hoy : Any questions at this time?
G . Evans : If there are no questions now I ' ll move on to one other point .
Referral to the County Planning Commissioner of certain
municipal zoning actions . This is under the General Municipal
law not Town law and the purpose of it is coordination of
zoning actions with regard to amendments , variances and special
permits on lands within 500 ft . of municipal boundary.. . . . . .. .
The idea here is when there are two municipalities abutting one
another and a special permit or variance comes along you have
limited powers to consider what is going on across the boundary
line but by referring it to a County agency , which has the
responsibility for coordination between these two , this function
is then taken care of and the procedure is the municipality , - Min
your case it would be you or your zoning officer - - sends a " full
statement " of the case to the Planning Commissioner who has 30
days to respond so , as soon as we get one of these things , we put
a date stamp on it and have 30 days to respond .
( At 20 to 9 PM Mr . R . Gleason , Chairman of the Groton
Town Planning Board joined the group . )
G . Evans ; What this means is if you ' re considering a variance on a property
that abuts a County highway you are required by State law to send
a full statement of the particulars in the case to Frank Liguori
and he has 30 days to scratch his head and think about it and if
he decides he thinks it ' s just fine he will write a letter and
say so . On the other hand if he thinks it would be a bad idea , - -
that there is some undesirable effect that this would have on
some County facilities , - - like for instance it would cause too
much activity on this particular strip of County road let ' s say , - -
he might say no this is not a good idea , I recommend you do not
grant this variance . After you receive that letter you can still
go ahead and grant the variance but the State law requires that you
do it by an extraordinary majority - - you would have to have
4 out of 5 members to override his recommendation . But if he
doesn ' t send anything or it arrives late , say 32 days after he
received it , - -you can proceed as though he wrote a letter recom-
mending that you do it . His powers here are primarily the powers
to recommend , - - to bring up some points perhaps that you hadn ' t
considered , - -maybe to tell you about some building project the
County has that you had no knowledge of or something of that sort .
In any event , he can ' t keep you from making a decision one way or
the other and this also applies to special permits and amendments
to the ordinance . The current revision activities , before final
action is taken on that , the whole ordinance will have to be
referred to Frank Liguori to look it over and he will tell the Town
Board what he thinks of it .
Now "full statement " is in quotation marks here because full
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G . Evans : statement is undefined . It ' s partly the responsibility of the
Planning Commissioner to define what full statement means to
give some guidance to the municipalities as to just what it is
he would like to get in the mail . Frank has taken a very easy
approach on this whole thing . He wants people to at least send
him something - - anything , - - just a postcard - - just a notice
that there is something going to happen to get this process
started . We have had say half of the municipalities that did
something or are actually doing something . Most of them are
simply sending a copy of the agenda which usually arrives two
to three days before the hearing . This can ' t possibly con-
stitute a full statement and shows no intent of giving him 30
days to consider it and respond but Frank feels the first step
is to get the process started and eventually some fuller kind
of statement can be worked up .
Now in this book there ' s an example of what one County in this
State has established as a full statement and it ' s on page 60 .
( The book he was referring to is one called Zoning Adminis -
tration) .
. It ' s a 2 - page item - - a form to answer questions and to be sent
in .
Now there ' s a fairly specific range of things that Frank is
looking at . The State law stipulates that the intention of
this act is that the considerations include the following :
" the compatability of various land uses with one and another "
"Traffic generating . . . . . . . . . . " That ' s State law where you look
at the traffic situation . "The impact of proposed land uses
on the . . . . . . . . " Let ' s say there was some big item which was
proposed up by the new County Hospital after it was underway ,
- - that across the road another large project of some kind was
proposed . One of the things he would look at is what is the
impact of that on the new hospital ? Will this in any way de-
grade the County ' s investment in this facility ?
"Protection of local character . . . . . " Community appearance , - -how
does this look ? Drainage , community facilities which mean such
things as schools , jails , libraries , Town highway , department
barns , Town Halls , all of these kinds of facilities which are
owned by the municipalities and so on . It ' s a fairly extensive
list but he has no particular authority to comment on anything
that isn ' t on that list so his responsibilities are fairly well
defined .
Evidently on a State-wide basis this is being enforced fairly
loosely at this time and presumably will be more stringently
enforced as time passes .
R . Gleason : This page 60 . I remember we had a subdivision that we sent a
letter or something to Frank on .
G . Evans : Yes , that is the same sort of thing .
R . Gleason : One of the things , - - there are some things asked here - - I ' m
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R . Gleason : not sure - - whether they are more stringent , or more demanding
than we demand in our zoning ordinance or not?
G . Evans : No , - - this item you ' re looking at has to do with special permits
and variances . Now subdivision review is under Section 239N and
it has different criteria and they do not have any example of
that kind of form in this book .
R . Gleason : Oh , I see . But a lot of the information had to be the same .
G . Evans : I agree , - -much of it is the same information . What it amounts
to is enough information so that he can review it . We spend
quite a lot of staff time in our office when we get something
of significance in doing the research we really shouldn ' t have
to do .
R . Gleason : I was going down the site plan . It would be conceivable to
grant variances for a lot say on Lansing Road . That ' s next to
Dryden so that requires a notification , - -right ?
G . Evans : That ' s right .
R . Gleason : But I was just wondering , do we have surface and subsurface drain -
ing plan incorporated in the land use plan ? It ' rs going to require
more than we have been doing in a lot of cases .
G . Evans : These are not requirements . It ' s just if you have a requirement
for a surface or subsurface plan we would like to see it .
_ R . Gleason : Oh , I see , - -O . K .
Some discussion was held on this by T . Robinson ,
R . Gleason and G . Evans ,
T . Robinson : Talking about streams , - -do you mean , - - is this the same as fishing
rights or do you mean , - -how do you mean about streams ?
G . Evans : I honestly don ' t know what they mean by a County- owned stream .
Some discussion was held on this by R . Gleason , G .
Evans , G . Hoy and others .
G . Hoy : What you ' re talking about here , - - this means any kind of a
variance in these locations ?
G . Evans : Yes ,
R . Gleason : In other words this repair shop deal we just went through?
G . Hoy : All of them should have gone that way ?
G . Evans : Yes . Most of the things that we get in we just look at and see
there ' s no problem with that and send a one-paragraph letter back
saying we have reviewed this and found no great impact and you '
can proceed without prejudice .
Further discussion was held by R . Gleason , G . Hoy ,
G . Evans and others regarding the repair shops .
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R . Gleason : Say today you have an application , - - or let ' s say April 1st you
get an application , - - at what point do you notify Frank , - - immed -
iately ?
G . Evans ; I think that would be appropriate , yes . Make a copy of it and
send it to Frank .
R . Gleason ; But then he has 30 days and they can ' t act for 30 days then ?
G . Evans : He isn ' t apt to take 30 days but he does have 30 days .
R. Gleason : But say somebody comes in and says we want to do this in two
weeks ' time .
G . Evans : Let ' s start at the beginning here . You had a rash of these
and they were on County and State roads and in that case should
get in touch with Frank and ask him how can we expedite these .
He might look at them all at once and comment on them or see
one or two that might be a problem . I think if something like
this comes up and you ' re trying to get through a bunch of them
quickly it would be a good idea to get in touch and to do it
as expeditiously as possible for everyone involved .
Now in actual practice it often takes us 3 weeks after we get
these - - to run around and get all the information we need
and shake somebody loose from some other job so they have time
to look at it and make some comment on it . This is why if some
kind of established form is used you can fill in the blanks or
your zoning officer can when he gets the application and see if
he has everything he needs to know available , then he could just
fill this thing out and send it all in at once . This would save
us a lot of time .
R . Gleason ; One of the things I get worried about now is - - getting all these
things to do , - - inadvertently one of us forgets to do these things
- - it almost seems to me it would be awfully easy to omit doing it .
Can we develop a check list ?
G . Evans : Yes , a check list is obviously the answer to this . There has to be
some way of jogging your memory .
R . Gleason : It looks to me like we should have a check list and also have a
check list we can pass out to the person applying so he can give
us all the information we need .
G . Evans : Yes .
G . Hoy : Would in certain circumstances ; - -would he suggest conditions like
on a road that maybe topography in a certain spot was not - - - - - - - -
- - - - - for certain types of operations ?
G . Evans : One of the suggestions might be the driveway is in the wrong
location and if the driveway is moved down say 50 ft . would
recommend approval , otherwise he couldn ' t .
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G . Evans : We have a fairly large staff , - - about 7 - 8 people down there now
and they are all. either planners or architects or engineers and
one of the things that happens is a variance or special application
comes across our desk and we see the thing they are proposing to
do is not too good at first glance and we get the idea that the
Board of Appeals might really not like to have to decide on this
thing or that they would like to be able to say no but don ' t know
how on earth to do it .
(Mr . Evans gave the Board an example of this from
the Village of Trumansburg . )
G . Evans ; I had lots of notes here so I wouldn ' t forget anything I wanted to
say and it seems to me I ' ve said it all now but if you have ques -
tions on general topics you ' d like to talk about , please do .
G . Bushnell : If those forms are sent down to you and you make a decision on
them and send them back to our Board , your decision would have
quite an impact but who would make the decision , - - the County or
the Town ?
G . Evans : If Frank in his letter says don ' t do it you can still do it but
all it requires is you do it with a little bit more resolution
than you are required to do ordinarily . You need one extra person
to approve it as a majority .
G . Bushnell ; Is this to keep the towns uniform within the County ?
G . Evans ; In those places where there ' s potential conflicts between different
jurisdictions , - - the idea is to impose a little uniformity at
those points . Now as far as uniformity between zoning practices
of the Town of Groton and the Town of Dryden that ' s none of our
business , - - it ' s where you come together , - - that ' s our business .
T . Robinson ; Has this ever been presented before or is this something that has
been ignored, wbecause I don ' t think the Appeals Board has ever had
anything to do with the County Board .
G . Evans ; It ' s been part of the State law for 20 years .
T . Robinson ; But it hasn ' t really been practiced ?
G . Evans ; No , for one thing it says in those counties where there ' s a
County Planning Commissioner . Well , there wasn ' t one in this
County until 1970 so it didn ' t really apply here until then .
G . Hoy ; How do you suggest now we take action on this draft that you gave
us awhile back , - -how do we proceed with it ?
G . Evans ; If the members of your Board have looked it over and discussed
it and are in general agreement with it you should turn it
over to your Town Attorney for his review and approval and once
you have that at the next regular scheduled meeting you have
that as an item of business and simply adopt it .
G . Hoy ; Is the Board of Appeals required to have regular meetings ?
G . Evans : I don ' t think so . I think it ' s required to have at least one
meeting a year .
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G . Hoy : So we could make amendments to it by having an organizational meeting
regularly once a year ?
G . Evans : Right .
G . Hoy : Where do you draw the line on applications received for hearings ?
Say someone wants to do something in an area absolutely not permitted
to , do you have to have the hearing or just let him read the zoning
ordinance or read it to him ?
G . Evans : I think one of the functions of the zoning officer is to discourage
frivolous appeals and tell them it ' s a preposterous appeal and no way
will it be permitted but I don ' t think there ' s any way you can stop some -
one from making the appeal . That ' s a difficult question because there ' s
always a hazy borderline area where aftef you look at it it might not be
as frivolous as you thought . I know most Boards have more appeals than
they want and a lot of them are really quite trivial but I don ' t know
of any way to cut them down other than as a matter of precedent - -
have some clear cut rules that are in the zoning ordinance and your
rules and regulations that you ' re going to look for these 5 points and
Of answer is yes you get variance if answer is no on one of these points
you don ' t get it . Once that is known and established than frivolous
appeals will decrease but that ' s a long process .
I think the appeal the guy made with his 7 , 000 sq . ft . lot to divide it
into 3 was preposterous but you know what ? He got it . I think it will
be overturned because the Board made some procedural errors . They made
their referral to the County Planning Board but neglected to wait 30
days and the County ' s reply was 2 pages of reasons why it should not be
permitted but the fact is the Board at their hearing decided yes he can do
it .
G . Hoy : Are there any other questions at this time ?
G . Evans : I ' ve had a chance to look over this book and this was intended to
replace this one but I don ' t think it ' s as good as the old one except at
the back it has all these forms , - - aren ' t you glad?
T . Robinson : More paper work .
G . Evans : If it ' s a function you ' re trying to perform these forms are very
helpful and trying to create one of them out of thin air is a real
problem sometimes .
F . Pierson : You could almost make a check list from some of those questions .
G . Evans : Right . But the text isn ' t as good as the old one so if you have any
copies of it keep them , - - they ' re still valid .
G . Hoy : Who ' s responsible for getting this form to your office ?
G . Evans : It varies , - - some places it ' s the chairman of the Board of Appeals
and some places the zoning officer - - the State law simply says the
municipality shall refer it to the County Planning Commissioner ,
G . Hoy : I guess that ' s it then and I ' ll adjourn the meeting and I want to
thank you , Gary , for coming out .
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Go Evans : You ° re welcome , I ' m always happy to attempt to clarify some
of these things ,
The meeting adjourned at 9 : 20 P . M .
Respectfully submitted ,
Joiephine Bell
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