HomeMy WebLinkAboutPeter's Memo 08-26-2010.pdfHello all,
Hope this proves useful.
Peter
Our recent meeting made it clear that the ZBA must be prepared to address two
kinds of problems at any given meeting: a) responding to a request for a variance and b)
establishing the criteria needed to accomplish (a). What follows is not offered as a set of
ideal procedures, but merely as a framework for guiding deliberations about how to
resolve our present difficulties.
To simplify matters, assume that the Board of Trustees pass a new law for the first
time restricting the height of buildings in the Village, the limit now to be 25 feet.. How
would enforcement proceed? Presumably at some point Brent would receive a request
for a building permit which he would deny because the proposed structure exceeds 25
feet in height. To make that judgment, Brent would need to decide how the height of a
building should be measured – not an easy assignment, given the irregular topography in
the Village. The would-be builder could file a request for a variance, arguing, in effect,
that Brent’s measurement technique imposes an undue hardship in his or her case.
The resulting ZBA meeting would begin by Brent explaining and justifying his
measurement technique used for determining the structure’s height which caused him to
deny the building permit. The following are two possible scenarios:
1. The ZBA unanimously approves Brent’s measuring technique and proceeds to
consider the variance request.
2. One or more ZBA members and/or the attorney do not approve Brent’s
measuring techniques.
The point of this memo is to ask: What should happen in the second case? The
following is one possible answer consisting of four steps.
1. At the public meeting, the ZBA member(s) or attorney (Kristen) would ask for a
private session for attorney – client discussion. (Kristen – Is this the correct
terminology?)
2. The ZBA members, Brent and the attorney (Kristen) would then move to an available
private room. (Brent would need to request a key or ask an Officer to be available to let
the group into the Police conference room.)
3. The attorney would begin the discussion by clarifying any relevant laws, and the
implications of those laws, if any, for appropriate criteria (if the attorney has not done so
already during the public meeting). Subsequent deliberations should lead to one of two
possible outcomes
4(a). The ZBA members reach a consensus on the appropriate measuring technique and
the group would return to the public hearing. Jack would announce the results of the
deliberations and the variance request would be considered, using the commonly agreed-
upon criteria.
4(b). Those criteria would also be forwarded to the Board of Trustees, who may consider
revising the local law to include the measuring technique agreed to by the ZBA or reject
the ZBA’s recommendation and request the ZBA to take an action they would deem
appropriate given their rejection.
Alternatively
4(a). No consensus is reached and the split in opinions (we’ll assume) consists of a
majority favoring one measuring technique, and a minority favoring another. In which
case the group would return to the public forum; Jack would announce that there is a
disagreement concerning which measuring technique should be used, and accordingly the
variance request would be tabled.
4(b). The dispute concerning the appropriate measuring technique would then be
forwarded to the Board of Trustees, asking them to resolve it..
Notice what the second set of procedures would accomplish. They would identify
two possible criteria to be used in the enforcement of the relevant zoning law concerning
the limit on the height of buildings, and they would turn over the decision concerning
which criteria should be used to the elected representatives of Village residents. As for
the original variance request, this would only be taken up (or “taken off the table”) when
the Board of Trustees notifies the ZBA which criteria should be used. In most cases, I
would assume that the Trustees would also amend the relevant zoning law to include the
measuring criteria they have determined to be appropriate.
A few final thoughts. When these or similar procedures are first established, ZBA
meetings are likely to be messy and protracted. But only a handful of zoning problems
are likely to require such an approach. “Movable structures” and “temporary fencing”
come immediately to mind. Once criteria have been established for any given problem,
the need for subsequent protracted meetings to establish such criteria disappears. The
main benefits would seem to be that a process is established to force the clarification of
criteria to be used in the enforcement of any given zoning law, and should an unresolved
criteria dispute occur at any ZBA meeting, the final decision on appropriate criteria is
turned over to that organization responsible for making Village laws; namely, the Board
of Trustees.