Document cayugacounty_gov_doc_b0dd44128e

Cayuga County Well-Planned Communities Project Zoning Board of Appeals ---PAGE BREAK--- ---PAGE BREAK--- Materials for Zoning Boards of Appeals in Cayuga County, New York Contents: Sample Documents: • Sample Process for ZBA Appeal • Sample Application for Area Variance ZBA Appeal • Sample Application for Use Variance ZBA Appeal • Sample Worksheet for Use Variance Application • Area Variance Worksheet for Board Member Deliberation • Use Variance Worksheet for Board Member Deliberation • Sample Decision for Approving an Area Variance • Sample Decision for Denying an Area Variance • Sample Decision for Approving a Use Variance • Sample Decision for Denying a Use Variance Reference Materials • Town Law & Village Law Relating to Zoning Boards of Appeals • Guidelines for Applicants to the Zoning Board of Appeals • James A. Coon Series - Zoning Board of Appeals SEQR & 239 l, m,n Review Materials: • SEQR Short Environmental Assessment Form • SEQR Long Environmental Assessment Form • SEQR Positive Declaration Determination Form • SEQR Negative Declaration Determination Form • 239 Review Cover Letter • List of Actions Required to be Reviewed by NYS General Municipal Law §239 • List of Other Materials Required to Submitted with a 239 Referral ---PAGE BREAK--- ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 3 8. Clerk assembles applicati on materials and determinati on materials for ZBA. 9. Clerk properly noti ces the ZBA meeti ng and appeals Pre-applicati on 1. Landowner wants to do something with his/her property that requires a building permit 2. Landowner applies for a building permit 3. CEO denies building permit because the landowner’s project violates the zoning ordinance Applicati on 4. Landowner applies for a variance from town clerk 5. Clerk gives land owner an applicati on packet for an area or use variance 6. Landowner completes applicati on packet and returns packet to the clerk with applicati on fee 7. Clerk Issues appeal number, receives fee, issues receipt and adds variance appeal to the ZBA agenda. ZBA Meeti ng 10. ZBA reviews applicati on materials & conducts SEQR review. 1) the ZBA classifi es the acti on for SEQR (Type II or unlisted), 2) conducts the appropriate SEQR review 3) determines signifi cance 11. ZBA determines whether 239 review is necessary 1) if 239 review is necessary, ZBA submits SEQR materials & determina- ti on, local variance applicati on materials and a cover lett er to Cayuga County Planning Board 12. ZBA reviews applicati on 13. ZBA conducts a public hearing 14. ZBA deliberates 15. ZBA makes a moti on and votes Post-meeti ng 16. Clerk sends a lett er to the land owner and CEO 17. Clerk fi les the ZBA moti on Cayuga County Zoning Board of Appeals Sample Process for ZBA Appeal ---PAGE BREAK--- ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 5 Cayuga County Zoning Board of Appeals Sample Application for Area Variance ZBA Appeal Appeal No.: Hearing Date: Receipt No.: 1. Type of Appeal Appeal is made herewith for an area variance from the Zoning Ordinance. 2. Appellant Information APPELLANT: (Name) (Address) (City) (State) (Zip Code) / / (Phone) (Fax) (Email) PROPERTY OWNER (if different) (Name) (Address) (City) (State) (Zip Code) / / (Phone) (Fax) (Email) 3. Location of Property / / (Number and Street) (Tax Map Number) (Use District on Zoning Map) 4. Provision(s) of the Zoning Ordinance Appealed (Indicate the article/section/subsection/paragraph) Page 1 of 3 ---PAGE BREAK--- 5. Previous Appeal A previous appeal ( ) has ( ) has not been made with respect to this proposal and was (were) made in Appeal No. dated Appeal No. dated Appeal No. dated Appeal No. dated 6. Description of the Appeal What is it that you want to do? How does the Zoning Ordinance prevent you from doing what you want to do? 7. Criteria for Area Variance Review State statute requires the Zoning Board of Appeals to consider the following criteria and then to balance the benefit to the applicant if the variance is granted against the detriment to the health, safety and welfare of the community or neighborhood. A. Will an undesirable change be produced in the character of the neighborhood - or - will the granting of this variance be a detriment to nearby properties? Why? B. Can the benefit you seek be achieved in some way other than an area variance? If yes, what is that way? Appeal No. Page 2 of 3 ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 7 Appeal No. C. Is the variance substantial? Why? D. Will the variance have an adverse impact on the physical or environmental conditions in the neigh- borhood or district? Why? E. Is the alleged difficulty self-created? Why? F. Is this the minimum variance necessary and adequate to achieve your goal? 8. Certification I certify that the information submitted with the appeal is true to the best of my knowledge and belief, and that I have read and am familiar with those sections of the Town/Village of Zoning Ordinance that apply to this appeal. I also acknowledge that the Board of Zoning Appeals may visit the prop­ erty and specifically permit such visits. (Signature of Land Owner) (Date) USE SEQR Classification: ( ) Unlisted ( ) Type 2 Environmental Assessment Forms Used: ( ) Short EAF ( ) Long EAF ( ) Lead Agency ( ) Determination of Significance SEQR Determination of Significance: ( ) Negative Declaration ( ) Positive Declaration Building Permit Application No. (if any) Date Received Date of First Hearing GML 239 Review Required? ( ) Yes ( ) No GML 239 Review Determination Town/Village Planning Board Review Required? ( ) Yes ( ) No Town/Village Planning Board Recommendation: Page 3 of 3 ---PAGE BREAK--- ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 9 Cayuga County Zoning Board of Appeals Sample Application for Use Variance ZBA Appeal Appeal No.: Hearing Date: Receipt No.: 1. Type of Appeal Appeal is made herewith for a use variance from the Zoning Ordinance. 2. Appellant Information APPELLANT: (Name) (Address) (City) (State) (Zip Code) / / (Phone) (Fax) (Email) PROPERTY OWNER (if different) (Name) (Address) (City) (State) (Zip Code) / / (Phone) (Fax) (Email) 3. Location of Property / / (Number and Street) (Tax Map Number) (Use District on Zoning Map) 4. Provision(s) of the Zoning Ordinance Appealed (Indicate the article/section/subsection/paragraph) Page 1 of 3 ---PAGE BREAK--- 5. Previous Appeal A previous appeal ( ) has ( ) has not been made with respect to this proposal and was (were) made in Appeal No. dated Appeal No. dated Appeal No. dated Appeal No. dated 6. Description of the Appeal A. What uses are permitted in the Zoning District? B. What use, not currently permitted, are you seeking for your property? C. Describe the project that requires the appeal 7. Criteria for Use Variance Review State statute requires the appellant to prove that the Zoning Ordinance has caused an “unnecessary hardship”. In order to prove such an unnecessary hardship the applicant must demonstrate to the Board of Zoning Appeals the following information for each and every use permitted in the zoning district: A. the appellant cannot realize a reasonable return, provided that the lack of return is substantial as demonstrated by competent financial evidence. B. that the alleged hardship relating to the property in question is unique and does not apply to a substantial portion of the district. C. that the requested use variance, if granted, will not alter the essential character of the neighborhood D. that the alleged hardship has not been self-created. E. that the requested use variance is the minimum variance necessary and adequate to address the unnecessary hardship while at the same time preserving and protecting the health, safety and welfare of the community. Given these requirements: A. Use the “Worksheet for Use Variance Application” to demonstrate that you cannot realize a reasonable return from any of the permitted uses in the Zoning District. B. What evidence can you provide that the alleged hardship relates only to your property and not to a substantial portion of the Zoning Appeal No. Page 2 of 3 ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 11 C. What evidence can you provide that the use variance will not alter the essential character of the D. What evidence can you provide that the alleged hardship has not been self-created? E. Why is the use variance you are requesting the minimum variance necessary and adequate to ad- dress the alleged hardship? 8. Certification I certify that the information submitted with the appeal is true to the best of my knowledge and belief, and that I have read and am familiar with those sections of the Town/Village of Zoning Ordinance that apply to this appeal. I also acknowledge that the Board of Zoning Appeals may visit the property and specifically permit such visits. (Signature of Land Owner) (Date) USE SEQR Classification: ( ) Unlisted ( ) Type 2 Environmental Assessment Forms Used: ( ) Short EAF ( ) Long EAF ( ) Lead Agency ( ) Determination of Significance SEQR Determination of Significance: ( ) Negative Declaration ( ) Positive Declaration Building Permit Application No. (if any) Date Received Date of First Hearing GML 239 Review Required? ( ) Yes ( ) No GML 239 Review Determination Town/Village Planning Board Review Required? ( ) Yes ( ) No Town/Village Planning Board Recommendation: Page 3 of 3 ---PAGE BREAK--- ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 13 Tax Assessment: Zoning District: Uses allowed in the zoning district: 1. 2. 3. 4. 5. 6. USE Estimated construction costs/sq. ft. Construction & Land Costs Site Aquisition Construction Cost Contingency Subtotal - Land and Construction Costs Soft Costs Accounting Fees Appraisal Architecture/Engineering Construction Management Environmental Audits Insurance - Construction Period Interest - Construction Period (in Legal Fees Loan Fees Permits/Approval Fees Project Marketing Recording Fees Surveys Subtotal - Soft Costs TOTAL PROJECT COSTS Project cost per Sq. Ft Cayuga County I Zoning Board of Appeals Worksheet for Use Variance Application Address of Property Tax Map No. Appeal Page 1 of 4 ---PAGE BREAK--- Revenues TOTAL REVENUES Expenses Accounting & Legal Advertising Bank Charges Insurance Lawn & Ground Mainenance Mantainance Labor Mainenance Supplies Management Fee Property Taxes Utilities Repairs Reserves Snow Removal Telephone Trash Removal Water & Sewer $ First Year $ First Year $ First Year $ First Year $ First Year $ First Year $ First Year $ First Year $ First Year $ First Year $ First Year $ First Year $ First Year $ First Year $ First Year $ First Year % Escalation per year % Escalation per year % Escalation per year % Escalation per year % Escalation per year % Escalation per year % Escalation per year % Escalation per year % Escalation per year % Escalation per year % Escalation per year % Escalation per year % Escalation per year % Escalation per year % Escalation per year % Escalation per year % Escalation per year Financing Loan Amount Interest Rate Term Debt Service Equity Loan to Value First Mortgage Second Mortgage Cayuga County I Zoning Board of Appeals Worksheet for Use Variance Application Address of Property Tax Map No. Appeal Page 2 of 4 ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 15 Cayuga County I Zoning Board of Appeals Worksheet for Use Variance Application Address of Property Tax Map No. Appeal Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Revenues Expenses Accounting & Legal Advertising Bank Charges Insurance Lawn & Ground Maintenance Maintenance Labor Maintenance Supplies Management Fee Property Taxes Utilities Repairs Reserves Snow Removal Telephone Trash Removal Water & Sewer Total Expenses Net Operating Income Debt Service First Mortgage Second Mortgage Debt Service Total CASH FLOW AFTER DEBT SERVICE Page 3 of 4 ---PAGE BREAK--- Cayuga County I Zoning Board of Appeals Worksheet for Use Variance Application Address of Property Tax Map No. Appeal Year 8 Year 9 Year 10 Year 11 Year 12 Year 13 Year 14 Revenues Expenses Accounting & Legal Advertising Bank Charges Insurance Lawn & Ground Maintenance Maintenance Labor Maintenance Supplies Management Fee Property Taxes Utilities Repairs Reserves Snow Removal Telephone Trash Removal Water & Sewer Total Expenses Net Operating Income Debt Service First Mortgage Second Mortgage Debt Service Total CASH FLOW AFTER DEBT SERVICE Page 4 of 4 ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 17 Cayuga County Zoning Board of Appeals Area Variance Worksheet Statutory Authority Facts in support of the application Facts in opposition to the application Source of information Conclusion Considerations Balance the benefit to the applicant if the variance is granted vs. any detriment to the health, safety and welfare of the neighborhood or community if the variance is granted. Will an undesirable change be produced in the character of the neighborhood? or Will a detriment to nearby properties be created by granting the variance? Can the benefit sought by the applicant be achieved by some method feasible for the applicant to pursue, other than an area variance? Is the requested area variance substantial or minimal? Will the proposed variance have an adverse effect or impact on the physical or environ- mental conditions in the neighborhood or district? Vil. Law §7-712-b(3) Town Law §267-b(3) Vil. Law §7-712-b(3) Town Law §267-b(3) Vil. Law §7-712-b(3) Town Law §267-b(3) Vil. Law §7-712-b(3) Town Law §267-b-3 Vil. Law §7-712-b(3) Town Law §267-b(3) Case Name: Date: Name of Applicant: Page 1 of 2 ---PAGE BREAK--- Cayuga County Zoning Board of Appeals Area Variance Worksheet Statutory Authority Facts in support of the application Facts in opposition to the application Source of information Conclusion Considerations Is the requested variance the minimum variance necessary and adequate while at the same time preserving the health, safety and welfare of the community and character of the neighborhood Vil. Law §7-712-b(3) Town Law §267-b(3) Notes: Is the alleged difficulty which makes the variance desireable to the applicant self-created? A ‘yes’ answer may be relevant to your decision but shall not necessarily preclude the granting of the area variance. Vil. Law §7-712-b(3) Town Law §267-b(3) Page 2 of 2 ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 19 Cayuga County Zoning Board of Appeals Use Variance Worksheet Statutory Authority Facts in support of the answer “YES” Facts in support of the answer “NO” Source of information Conclusion Considerations Is the applicant unable to realize a reasonable return on the property? Is the alleged hardship relating to the property in question unique? (i.e. it does not apply to a substantial portion of the district) Will the requested use variance, if granted, not alter the essential character of the neighborhood? Has the alleged hardship has not been self-created? Vil. Law §7-712-b(2) Town Law §267-b(2) Case Name: Date: Name of Applicant: The applicant must prove that the applicable zoning regulations have caused “unnecessary hardship”. In order to prove that the zoning regulations have caused an “unnecessary hardship” the applicant must prove that for each and every permitted use under the zoning regulations for the particular district where the property is located the answer to the following four questions is “YES”: What competent financial evidence has been provided to demonstrate that the lack of return is substantial? (Such evidence is required to be presented by the applicant) Vil. Law §7-712-b(2) Town Law §267-b(2) Vil. Law §7-712-b(2) Town Law §267-b(2) Vil. Law §7-712-b(2) Town Law §267-b(2) Page 1 of 1 ---PAGE BREAK--- ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 21 Cayuga County Zoning Board of Appeals Sample Decision for Approving an Area Variance In the matter of APPEAL NO. by applicant for the property located at and having a tax map number of WHEREAS, the applicant has requested a area variance because the applicant wishes to which results in a (side yard setback, building stories, etc.) deficiency of (feet /percent/stories etc.) from the (feet/percent/stories) required in the district by the zoning ordinance; and WHEREAS, a hearing was scheduled for the meeting of the (Town/Village) of Board of Zoning Appeals to consider the applicant’s request; and WHEREAS, the applicant has appeared and addressed the board at said meeting. NOW the Board hereby makes the following findings of fact and conclusions of law concerning said application 1. The subject property is zoned 2. (Choose one) A. The granting of this variance will not result in an undesirable change in the character of the neigh- borhood B. The granting of this variance will not create a detriment to nearby properties because_________ 3. The benefit sought by the applicant could not be achieved by some method, feasible for the applicant to pursue, other than the area variance because 4. The area variance requested is (not substantial / minimal) in that 5. The area variance requested will not have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district. Page 1 of 2 ---PAGE BREAK--- 6. (Optional) The applicant’s alleged difficulty was not self-created in that 7. In light of the foregoing the Board finds that, having ballanced the benefit to the applicant against any detriment to the health, safety and welfare of the neighborhood or community if the variance is granted, the minimum variance necessary and adequate to address the alleged difficulty while at the same time preserving the helth, safety and welfare of the community and character of the neighborhood is as follows: A variance to permit THEREFORE the Board hereby grants said variance. Page 2 of 2 ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 23 Cayuga County Zoning Board of Appeals Sample Decision for Denying an Area Variance In the matter of APPEAL NO. by applicant for the property located at and having a tax map number of WHEREAS, the applicant has requested an area variance because the applicant wishes to which results in a (side yard setback, building stories, etc.) deficiency of (feet /percent/stories etc.) from the (feet/percent/stories) required in the district by the zoning ordinance; and WHEREAS, a hearing was scheduled for the meeting of the (Town/Village) of Board of Zoning Appeals to consider the applicant’s request; and WHEREAS, the board finds that the applicant has provided sufficient evidence to evaluate the subject application. NOW the Board hereby makes the following findings of fact and conclusions of law concerning said application 1. The subject property is zoned 2. (specify one or more of the following): A. an undesireable change will be produced int heneighborhood/community in that B. constitute(s) a detriment to nearby properties that would result from the granting of this variance. C. the benefit sought by the applicant could feasibly be achieved by the applicant in another way, namely, D. the requested area variance is (substantial/not minimal) in that E. the proposed variance will have an (adverse effect/impact) on the (physical/environmental) conditions in the neighborhood in that 1 of 2 ---PAGE BREAK--- f. the alleged difficulty which makes the variance desireable to the applicant is self-created in that g. the requested variance is not the minimum variance necessary and adequate while at the same time protecting the health, safety and welfare of the community and character of the neighborhood because 3. In light of the foregoing, having ballanced the benefit to the applicant against any detriment to the health, safety and welfare of the neighborhood or community if the variance is granted, the Board finds that the variance may not be granted. THEREFORE, the Board hereby denies the application for an area variance. 2 of 2 ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 25 Cayuga County Zoning Board of Appeals Sample Decision for Approving a Use Variance In the matter of APPEAL NO. by applicant for the property located at and having a tax map number of WHEREAS, the applicant has requested a use variance to and WHEREAS, a hearing was scheduled for the meeting of the (Town/Village) of Board of Zoning Appeals to consider the applicant’s request; and WHEREAS, the applicant has appeared and addressed the board at said meeting. NOW the Board hereby makes the following findings of fact and conclusions of law concerning said application 1. The subject property is zoned 2. This zone permits the following uses of said property: The requested use is not permitted in this zone without a variance. 3. The applicant has submitted competent evidence in the form of which demonstrates that no permissible use of said property can result in a reasonable return to the applicant, and that such lack of a reasonable return is substantial: a. The use of said property as a (single family residence, etc. other uses) cannot result in a reasonable return because: The lack of a reasonable return is substantial in that b. The use of said property as a (two family residence, etc. other uses) cannot result in a reasonable return because: The lack of a reasonable return is substantial in that c. (continue for all permitted uses in the district) 4. This inability to obtain a reasonable return causes an unnecessary hardship. 5. This hardship relates to the property itself which is unique in that These unique characteristics of the property no not apply to a substantial portion of the district because the proper- ties in the surrounding district 1 of 2 ---PAGE BREAK--- 6. The proposed use will not alter the essential character of the neighborhood in that 7. Said hardship has not been self-created in that 8. (if required) The Cayuga County Planning Board’s 239 Review Committee has reviewed this action and made the following determination: 9. The Board hereby determines that the minimum variance necessary and adequate to address the unnecessary hardship proven by the applicant preserving and protecting the character of the (district/neighborhood) and health, safety and welfare of the community is as follows: A variance to permit the use of the property__________ THEREFORE, in light of the foregoing, the Board hereby grants said variance. RESOLVED, that the Zoning Board of Appeals is lead agency for environmental review and that the Zoning Board of Appeals makes a negative declaration of significant environmental impact, based on the (long/short) Environmen- tal Assessment Form (Part 1 and 2) on file with 2 of 2 ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 27 Cayuga County Zoning Board of Appeals Sample Decision for Denying a Use Variance In the matter of APPEAL NO. by applicant for the property located at and having a tax map number of WHEREAS, the applicant has requested a use variance to and WHEREAS, a hearing was scheduled for the meeting of the (Town/Village) of Board of Zoning Appeals to consider the applicant’s request; and WHEREAS, the board finds that the applicant has provided sufficient evidence to evaluate the subject application. NOW the Board hereby makes the following findings of fact and conclusions of law concerning said application 1. The subject property is zoned 2. The applicant has not demonstrated that the following requirements for a use variance have been met (specify one or more of the following): a. the applicant has not submitted competent financial evidence which demonstrates that no permissible use of said property can result in a reasonable return to the applicant and that such lack of reasonable return is substantial in that b. This inability to obtain a reasonable return does not cause an unnecessary hardship because c. 1. This hardship relates to the property but is not unique to the (district/neighborhood) because OR c. 2. This hardship does not relate to the property itself because d. The proposed use will alter the essential character of the neighborhood in that e. Said hardship has been self-created in that THEREFORE, the Board hereby denies the application for a use variance. 1 of 1 ---PAGE BREAK--- ---PAGE BREAK--- 54 Definitions “Use variance” “Area variance” Appointment of members; compensation for experts; staff; expenses Ineligibility Terms of office Terms to be extended to end of year Increasing membership Decreasing membership § 267. Zoning board of appeals. 1. Definitions. As used in this section: "Use variance" shall mean 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" shall mean 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 regulations. 2. Appointment of members. Each town board which adopts a local law or ordinance and any amendments thereto pursuant to the powers granted by this article shall appoint a board of appeals consisting of three or five members as shall be determined by such local law or ordinance and shall designate the chairperson thereof. In the absence of a chairperson the board of appeals may designate a member to serve as acting chairperson. The town board may provide for compensation to be paid to experts, clerks and a secretary and provide for such other expenses as may be necessary and proper, not exceeding the appropriation made by the town board for such purpose. 3. Town board members ineligible. No person who is a member of the town board shall be eligible for membership on such board of appeals. 4. Terms of members first appointed. In the creation of a new board of appeals, or the reestablishment of terms of an existing board, the appointment of members to the board shall be for terms so fixed that one member's term shall expire at the end of the calendar year in which such members were initially appointed. The remaining members' terms shall be so fixed that one member's term shall expire at the end of each year thereafter. At the expiration of each original member's appointment, the replacement member shall be appointed for a term which shall be equal in years to the number of members of the board. 5. Terms 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. 6. Increasing membership. Any town board may, by local law or ordinance, increase a three member board of appeals to five members. Additional members shall be first appointed for single terms as provided by resolution in order that the terms of members shall expire in each of five successive years and their successors shall thereafter be appointed for full terms of five years. No such additional member shall take part in the consideration of any matter for which an application was on file with the board of appeals at the time of his or her appointment. 7. Decreasing membership. A town board which has increased the number of members of the board of appeals to five may, by local law or ordinance, decrease the number of members of the board of appeals to three to take effect upon the next two expirations of terms. Any board of appeals which, Excerpts from Town Law Related to the Functions of the ZBA Materials for Cayuga County Zoning Boards of Appeals Page 29 ---PAGE BREAK--- TOWN LAW 55 Continuation of seven-member boards Zoning board of appeals members are required to receive training on an annual basis Must receive training to be eligible for reappointment Waivers Decisions of board not voided if not in compliance with training requirements Vacancy in office Removal of members Chairperson duties Appointment of alternate members. upon the effective date of this section has seven members, may continue to act as a duly constituted zoning board of appeals until the town board, by local law or ordinance, reduces such membership to three or five. However, no incumbent shall be removed from office except upon the expiration of his or her term. 7-a. Training and attendance requirements. Each member of the board of appeals shall complete, at a minimum, four hours of training each year designed to enable such members to more effectively carry out their duties. Training received by a member in excess of four hours in any one year may be carried over by the member into succeeding years in order to meet the requirements of this subdivision. Such training shall be approved by the town board and may include, but not be limited to, training provided by a municipality, regional or county planning office or commission, county planning federation, state agency, statewide municipal association, college or other similar entity. Training may be provided in a variety of formats, including but not limited to, electronic media, video, distance learning and traditional classroom training. To be eligible for reappointment to such board, such member shall have completed the training promoted by the town pursuant to this subdivision. The training required by this subdivision may be waived or modified by resolution of the town board when, in the judgment of the town board, it is in the best interest of the town to do so. No decision of a zoning board of appeals shall be voided or declared invalid because of a failure to comply with this subdivision. 8. Vacancy in office. If a vacancy shall occur otherwise than by expiration of term, the town board shall appoint the new member for the unexpired term. 9. Removal of members. The town board shall have the power to remove, after public hearing, any member of the zoning board of appeals for cause. Any zoning board of appeals member may be removed for non-compliance with minimum requirements relating to meeting attendance and training as established by the town board by local law or ordinance. 10. Chairperson duties. All meetings of the board of appeals shall be held at he call of the chairperson and at such other times as such board may determine. Such chairperson, or in his or her absence, the acting chair person, may administer oaths and compel the attendance of witnesses. 11. Alternate members. A town board may, by local law or ordinance, or as a part of the local law or ordinance creating the zoning board of appeals, establish alternate zoning board of appeals member positions for purposes of substituting for a member in the event such member is unable to participate because of a conflict of interest. Alternate members of the zoning board of appeals shall be appointed by resolution of the town board, for terms established by the town board. The chairperson of the zoning board of appeals may designate an alternate member to substitute for a member when such member is unable to participate because of a conflict of interest on an application or matter before the board. When so designated, the alternate member shall possess all the powers and responsibilities of such member of the board. Such designation shall be entered into the minutes of the initial zoning board of appeals meeting at which the substitution is made. All provisions of this section relating to zoning board of appeals member training and continuing education, attendance, conflict of interest, compensation, eligibility, vacancy in office, removal, and service on other ---PAGE BREAK--- TOWN LAW 56 Keeping of minutes, records Filings Authority of the board to seek assistance The appellate nature of the board Decisions of the enforcement officer must be filed in the enforcement office unless the town board directs they be filed with the town clerk Appeal taken within sixty days after filing by administrative enforcement official Stay upon appeal Hearing on appeal; notice, publication boards, shall also apply to alternate members. Note: For a complete discussion of zoning board of appeals powers and duties under this statute and applicable court decisions, see DOS Local Government Technical Series publication “Zoning Board of Appeals.” § 267-a. Board of appeals procedure. 1. Meetings, minutes, records. Meetings of such board of appeals shall be open to the public to the extent provided in article seven of the public officers law. Such board of appeals 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. 2. Filing requirements. Every rule, regulation, every amendment or repeal thereof, and every order, requirement, decision or determination of the board of appeals shall be filed in the office of the town clerk within five business days and shall be a public record. 3. Assistance to board of appeals. Such board shall have the authority to call upon any department, agency or employee of the town for such assistance as shall be deemed necessary and as shall be authorized by the town board. Such department, agency or employee may be reimbursed for any expenses incurred as a result of such assistance. 4. Hearing appeals. Unless otherwise provided by local law or ordinance, the jurisdiction of the board of appeals shall be appellate only and shall be limited to hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation, or determination made by the administrative official charged with the enforcement of any ordinance or local law adopted pursuant to this article. Such appeal may be taken by any person aggrieved, or by an officer, department, board or bureau of the town. 5. Filing of administrative decision and time of appeal. Each order, requirement, decision, interpretation or determination of the administrative official charged with the enforcement of the zoning local law or ordinance shall be filed in the office of such administrative official, within five business days from the day it is rendered, and shall be a public record. Alternately, the town board may, by resolution, require that such filings instead be made in the town clerk`s office. An appeal shall be taken within sixty days after the filing of any order, requirement, decision, interpretation or determination of the administrative official, 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. 6. 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 ordinance or 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. 7. 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 of such hearing by publication in a paper of general circulation in the town at least Materials for Cayuga County Zoning Boards of Appeals Page 31 ---PAGE BREAK--- TOWN LAW 57 General Municipal Law §239-nn requires that notice be sent to the clerk of the adjacent municipality prior to holding a hearing on a use variance for property which is within 500 feet of the municipal line. Notice must be given at least 10 days prior to the hearing. Appeal to be decided by board within 62 days after conduct of hearing Decision to be filed within five business days after rendered Notice to park commission or planning agency mailed five days prior to hearing Compliance with SEQRA Rehearing Default denial five days prior to the date thereof. The cost of sending or publishing any notices relating to such appeal, or a reasonable fee relating thereto, shall be borne by the appealing party and shall be paid to the board prior to the hearing of such appeal. Upon the hearing, any party may appear in person, or by agent or attorney. 8. Time of decision. The board of appeals shall decide upon the appeal within sixty-two 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. 9. Filing of decision and notice. The decision of the board of appeals on the appeal shall be filed in the office of the town clerk within five business days after the day such decision is rendered, and a copy thereof mailed to the applicant. 10. Notice to park commission and county planning board or agency or regional planning council. At least five days before such hearing, the board of appeals shall mail notices thereof to the parties; to the regional state park commission having jurisdiction over any state park or parkway within five hundred feet of the property affected by such appeal; and to the county planning board or agency or regional planning council, as required by section two hundred thirty-nine-m of the general municipal law, which notice shall be accompanied by a full statement of such proposed action, 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. 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 reheard 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 to the same notice provisions as an original hearing. Upon such rehearing the board 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 reheard order, decision or determination will not be prejudiced thereby. 13. Voting requirements. a. Decision of the board. Except as otherwise provided in subdivision twelve of this section, every motion or resolution of a board of appeals shall require for its adoption the affirmative vote of a majority of all the members of the board of appeals as fully constituted regardless of vacancies or absences. Where an action is the subject of a referral to the county planning agency or regional planning council the voting provisions of section two hundred thirty- nine-m of the general municipal law shall apply. b. Default denial of appeal. In exercising its appellate jurisdiction only, if an affirmative vote of a majority of all members of the board is not attained on a motion or resolution to grant a variance or reverse any order, requirement, decision or determination of the enforcement official within the time allowed by subdivision eight of this section, the appeal is denied. The board may amend the failed motion or resolution and vote on the amended motion or resolution within the time allowed without being subject to the rehearing process as set forth in subdivision twelve of this section. ---PAGE BREAK--- TOWN LAW 58 Authority of the board regarding orders, requirements, decisions, interpretations, determinations Test for granting use variances Unnecessary hardship must be shown Reasonable return Unique hardship Essential character of neighborhood Not self-created Board must grant minimum variance necessary Area variances Test for granting area variances Individual benefit vs. community detriment considerations Undesirable change in neighborhood character Alternative cure sought Substantiality § 267-b. Permitted action by board of appeals. 1. Orders, requirements, decisions, interpretations, determinations. The board of appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, 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 enforcement of such ordinance or local law and to that end shall have all the powers of the administrative official from whose order, requirement, decision, interpretation or determination the appeal is taken. 2. Use variances. The board of appeals, on appeal from the decision or determination of the administrative official charged with the enforcement of such ordinance or local law, shall have the power to grant use variances, as defined herein. 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 every permitted use under the zoning regulations for the particular district where the property is located, 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. 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 and protect the character of the neighborhood and the health, safety and welfare of the community. 3. Area variances. 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 defined herein. 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; Materials for Cayuga County Zoning Boards of Appeals Page 33 ---PAGE BREAK--- TOWN LAW 59 Adverse effect or impact Not self-created Board must grant minimum variance necessary Power to impose conditions Application for proceeding must be filed within 30 days after decision by board Costs of appeal Preference of appeal over other court actions 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 consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance. 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. 4. Imposition of conditions. The board of appeals shall, in the granting of both use variances 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 the 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. Note: For an explanation of the rules and standards under which appeals may be taken to the ZBA,see DOS technical series publication “Guidelines for Applicants to the Zoning Board of Appeals". § 267-c. Article seventy-eight proceeding. 1. 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 town, may apply to the supreme court for review by a proceeding under article seventy-eight of the civil practice law and rules. Such proceeding shall be instituted within thirty days after the filing of a 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 shall appear to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from. 3. Preference of appeal to court. All issues in any proceeding under this section 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 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 for determination. ---PAGE BREAK--- 102 Definitions "Use variance" "Area variance" Appointment of members; compensation for experts; staff; expenses Appointment of chairperson Compensation Ineligibility Terms of office Terms of members to be extended to end of year Increasing membership § 7-712. Zoning board of appeals. 1. Definitions. As used in this section: "Use variance" shall mean 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" shall mean 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 regulations. 2. Appointment of members. Each village board of trustees which adopts a local law and any amendments thereto pursuant to the powers granted by this article shall create a board of appeals consisting of three or five members as shall be determined by such local law. The mayor shall appoint the board of appeals and the chairperson thereof, subject to the approval of the board of trustees. In the absence of a chairperson the board of appeals may designate a member to serve as acting chairperson. The board of trustees may provide for compensation to be paid to experts, clerks and a secretary and provide for such other expenses as may be necessary and proper, not exceeding the appropriation made by the board of trustees for such purpose. 3. Board of trustees ineligible. No person who is a member of the village board of trustees shall be eligible for membership on such board of appeals. 4. Terms of members first appointed. In the creation of a new board of appeals, or the reestablishment of terms of an existing board, the appointment of members to the board shall be of terms so fixed that one member's term shall expire at the end of the village official year in which such members were initially appointed. The remaining members' terms shall be so fixed that one member's term shall expire at the end of each official year thereafter. At the expiration of each original member's appointment, the replacement member shall be appointed by the board of trustees for a term which shall be equal in years to the number of members of the board. 5. Terms 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. 6. Increasing membership. Any board of trustees may, by local law, increase a three member board of appeals to five members. Additional members shall Excerpts from Village Law Related to the Functions of the ZBA Materials for Cayuga County Zoning Boards of Appeals Page 35 ---PAGE BREAK--- VILLAGE LAW 103 Decreasing membership Zoning Board of Appeals members are required to receive training on an annual basis Must receive training to be eligible for reappointment Waivers Decisions of board not voided if not in compliance with training requirements Filing vacancies in unexpired term Removal of members Duties of chairperson Appointment of alternate members. be first appointed for single terms as provided by resolution in order that the terms of members shall expire in each of five successive years and their successors shall thereafter be appointed for full terms of five years. No such additional member shall take part in the consideration of any matter for which an application was on file with the board of appeals at the time of his or her appointment. 7. Decreasing membership. A board of trustees which has increased the number of members of the board of appeals to five may, by local law, decrease the number of members of the board of appeals to three to take effect upon the next two expirations of terms. 7-a. Training and attendance requirements. Each member of the board of appeals shall complete, at a minimum, four hours of training each year designed to enable such members to more effectively carry out their duties. Training received by a member in excess of four hours in any one year may be carried over by the member into succeeding years in order to meet the requirements of this subdivision. Such training shall be approved by the board of trustees and may include, but not be limited to, training provided by a municipality, regional or county planning office or commission, county planning federation, state agency, statewide municipal association, college or other similar entity. Training may be provided in a variety of formats, including but not limited to, electronic media, video, distance learning and traditional classroom training. To be eligible for reappointment to such board, such member shall have completed the training promoted by the village pursuant to this subdivision. The training required by this subdivision may be waived or modified by resolution of the board of trustees when, in the judgment of the board of trustees, it is in the best interest of the village to do so. No decision of a board of appeals shall be voided or declared invalid because of a failure to comply with this subdivision. 8. Vacancy in office. If a vacancy shall occur otherwise than by expiration of term, the mayor shall appoint the new member for the unexpired term. 9. Removal of members. The mayor shall have the power to remove, after public hearing, any member of the zoning board of appeals for cause. Any zoning board of appeals member may be removed for non-compliance with minimum requirements relating to meeting attendance and training as established by the village board of trustees by local law. 10. Chairperson duties. All meetings of the board of appeals shall be held at the call of the chairperson and at such other times as such board may determine. Such chairperson, or in his or her absence, the acting chairperson, may administer oaths and compel the attendance of witnesses. 11. Alternate members. ---PAGE BREAK--- VILLAGE LAW 104 Keeping of minutes, records Filings Authority of the board to seek assistance The appellate nature of the board a. A village board of trustees may, by local law or as a part of the local law creating the zoning board of appeals, establish alternate zoning board of appeals member positions for purposes of substituting for a member in the event such member is unable to participate because of a conflict of interest. Alternate members of the zoning board of appeals shall be appointed by the mayor, subject to the approval of the board of trustees, for terms established by the village board of trustees. b. The chairperson of the zoning board of appeals may designate an alternate member to substitute for a member when such member is unable to participate because of a conflict of interest on an application or matter before the board. When so designated, the alternate member shall possess all the powers and responsibilities of such member of the board. Such designation shall be entered into the minutes of the initial zoning board of appeals meeting at which the substitution is made. c. All provisions of this section relating to zoning board of appeals member training and continuing education, attendance, conflict of interest, compensation, eligibility, vacancy in office, removal, and service on other boards, shall also apply to alternate members. Note: For a complete discussion of zoning board of appeals powers and duties under this statute and the applicable court decisions, see DOS Local Government Technical Series publication "Zoning Board of Appeals." § 7-712-a. Board of appeals procedure. 1. Meetings, minutes, records. Meetings of such board of appeals shall be open to the public to the extent provided in article seven of the public officers law. Such board of appeals 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. 2. Filing requirements. Every rule, regulation, every amendment or repeal thereof, and every order, requirement, decision or determination of the board of appeals shall be filed in the office of the village clerk within five business days and shall be a public record. 3. Assistance to board of appeals. Such board shall have the authority to call upon any department, agency or employee of the village for such assistance as shall be deemed necessary and as shall be authorized by the village board of trustees. Such department, agency or employee may be reimbursed for any expenses incurred as a result of such assistance. 4. Hearing appeals. Unless otherwise provided by local law, the jurisdiction of the board of appeals shall be appellate only and shall be limited to hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation, or determination made by the administrative official charged with the enforcement of any local law adopted pursuant to this article. Such appeal may be taken by any person aggrieved, or by an officer, department, board or bureau of the village. 5. Filing of administrative decision and time of appeal. Materials for Cayuga County Zoning Boards of Appeals Page 37 ---PAGE BREAK--- VILLAGE LAW 105 The enforcement officer must file decisions in the office of the village clerk. Appeal taken within sixty days after filing by administrative enforcement official Stay upon appeal Hearing on appeal; notice, publication General Municipal Law §239-nn requires that notice be sent to the clerk of the adjacent municipality prior to holding a hearing on a use variance for property which is within 500 feet of the municipal line. Notice must be given at least 10 days prior to the hearing. Appeal to be decided by board within 62 days after conduct of hearing Decision to be filed within five business days after rendered Notice to park commission or planning agency mailed five days prior to hearing Compliance with SEQRA Each order, requirement, decision, interpretation or determination of the administrative official charged with the enforcement of the zoning local law shall be filed in the office of such administrative official within five business days from the day it is rendered, and shall be a public record. Alternately, the village board of trustees may, by resolution, require that such filings instead be made in the village clerk`s office. An appeal shall be taken within sixty days after the filing of any order, requirement, decision, interpretation or determination of the administrative official, 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. 6. 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. 7. 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 of such hearing by publication in a paper of general circulation in the village at least five days prior to the date thereof. The cost of sending or publishing any notices relating to such appeal, or a reasonable fee relating thereto, shall be borne by the appealing party and shall be paid to the board prior to the hearing of such appeal. Upon the hearing, any party may appear in person, or by agent or attorney. 8. Time of decision. The board of appeals shall decide upon the appeal within sixty-two 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. 9. 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 business days after the day such decision is rendered, and a copy thereof mailed to the applicant. 10. Notice to park commission or county planning board or agency or regional planning council. At least five days before such hearing, the board of appeals shall mail notices thereof to the parties, to the regional state park commission having jurisdiction over any state park or parkway within five hundred feet of the property affected by such appeal and to the county, planning board or agency or regional planning council as required by section two hundred thirty-nine-m of the general municipal law, which notice shall be accompanied by a full statement of such proposed action, 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 ---PAGE BREAK--- VILLAGE LAW 106 Rehearing Default denial Authority of the board regarding orders, requirements, decisions, interpretations, determinations Test for granting use variances regulations as codified in title six, part six hundred seventeen of the New York codes, rules and regulations. 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 reheard 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 to the same notice provisions as an original hearing. Upon such rehearing the board 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 reheard order, decision or determination will not be prejudiced thereby. 13. Voting requirements. Decision of the board. Except as otherwise provided in subdivision twelve of this section, every motion or resolution of a board of appeals shall require for its adoption the affirmative vote of a majority of all the members of the board of appeals as fully constituted regardless of vacancies or absences. Where an action is the subject of a referral to the county planning agency or regional planning council the voting provisions of section two hundred thirty-nine-m of the general municipal law shall apply. Default denial of appeal. In exercising its appellate jurisdiction only, if an affirmative vote of a majority of all members of the board is not attained on a motion or resolution to grant a variance or reverse any order, requirement, decision or determination of the enforcement official within the time allowed by subdivision eight of this section, the appeal is denied. The board may amend the failed motion or resolution and vote on the amended motion or resolution within the time allowed without being subject to the rehearing process as set forth in subdivision twelve of this section. § 7-712-b. Permitted action by board of appeals. 1. Orders, requirements, decisions, interpretations, determinations. The board of appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, 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 enforcement of such local law and to that end shall have all the powers of the administrative official from whose order, requirement, decision, interpretation or determination the appeal is taken. 2. Use variances. The board of appeals, on appeal from the decision or determination of the administrative officer charged with the enforcement of such local law, shall have the power to grant use variances, as defined herein. 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 Materials for Cayuga County Zoning Boards of Appeals Page 39 ---PAGE BREAK--- VILLAGE LAW 107 Unnecessary hardship must be shown Reasonable return Unique hardship Essential character of neighborhood Not self-created Board must grant minimum variance necessary Area variances Test for granting area variances Individual benefit vs. community detriment considerations Undesirable change in neighborhood character Alternative cure sought Substantiality Adverse effect or impact Not self-created unnecessary hardship the applicant shall demonstrate to the board of appeals that for each and every permitted use under the zoning regulations for the particular district where the property is located, 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. 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. 3. Area variances. 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 local law, to grant area variances as defined herein. 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 consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance. ---PAGE BREAK--- VILLAGE LAW 108 Board must grant minimum variance necessary Power to impose conditions Application for proceeding must be filed within thirty days after decision by board Costs of appeal Preference of appeal over other court actions 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. 4. Imposition of conditions. The board of appeals shall, in the granting of both use variances 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 the zoning local law, and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community. Notes: For an explanation of the rules and standards under which appeals may be taken to the ZBA, see DOS technical series publication “Guidelines for Applicants to the Zoning Board of Appeals". § 7-712-c. Articl e seventy-eight proceedin g. 1. 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 seventy-eight of the civil practice law and rules. Such proceeding shall be instituted within thirty days after the filing of a decision of the board in the office of the village clerk. 2. Costs 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. 3. Preference of appeal to court. All issues in any proceeding under this section 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 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 for determination. Materials for Cayuga County Zoning Boards of Appeals Page 41 ---PAGE BREAK--- ---PAGE BREAK--- JAMES A. COON LOCAL GOVERNMENT TECHNICAL SERIES 1 Guidelines for Applicants To the Zoning Board of Appeals This publication has been written to aid potential applicants in understanding and appreciating the appeals process, and to provide an explanation of the rules and standards under which appeals and variance decisions must be made. Applicants and their representatives should be guided in advance by the standards in deciding whether an appeal would be appropriate. These standards have been set forth in law and by the courts of the State, and cannot be modified by the Zoning Board of Appeals. Why might you consider an appeal to the Zoning Board of Appeals? A person may want to appeal to the Zoning Board of Appeals (ZBA) for two basic reasons. First, he or she may disagree with a decision the enforcement officer has made or an action he or she has taken. Second, the appealing party may believe that an exception (variance) to the zoning laws should be made for his or her property. How is the appeals process initiated? Either the applicant or the applicant’s representative must file a Notice of Appeal with the ZBA within 60 days after the enforcement officer has filed his or her decision or action. The enforcement officer’s decision is filed in his or her office, unless the municipal governing board has authorized it to be filed instead in the municipal clerk’s office. A copy of the Notice of Appeal must also be filed with the enforcement officer. Under what circumstances may an appeal be made to the Zoning Board of Appeals? Except in certain instances, an applicant must be "aggrieved" by an actual decision or action taken by the enforcement officer. The exceptions occur where an applicant has already submitted an application for subdivision, site plan, or special use permit approval which requires an area variance in connection with that approval. In those instances, no decision of the enforcement officer is necessary. The applicant may simply file a Notice of Appeal directly with the ZBA. Who may apply to the ZBA for relief? Anyone who could be "aggrieved" by the decision or action of the enforcement officer, has standing to take an appeal before the ZBA. A person is “aggrieved” if his or her property value is affected negatively by the enforcement officer’s action. Commonly, a property owner who either has been refused a permit or has been served with an enforcement action, is the "aggrieved party." Also note, as stated above, that a landowner who has submitted an application for subdivision, site plan, or special use permit approval, may apply to the ZBA for an area variance without a decision of the enforcement officer. A neighboring landowner may also be an "aggrieved party", if he or she believes the enforcement officer's decision in issuing a permit was improper, and will negatively affect their property Materials for Cayuga County Zoning Boards of Appeals Page 43 ---PAGE BREAK--- JAMES A. COON LOCAL GOVERNMENT TECHNICAL SERIES 2 value. In addition, any officer, board or commission of the municipality may appeal a decision of the enforcement officer, whether or not that officer, board or commission is aggrieved. What decisions or actions are appealable? Any decision or action issued in writing by the enforcement officer, which affects anyone's rights, is appealable. These decisions include: the grant or denial of a permit, the issuance of an appearance ticket or summons, or any order which mandates certain action, such as a cease-and-desist or stop-work order. I'm a resident who lives near the proposed project. What happens if I find out about the project more than 60 days after the permit is filed? If you are a "third party", such as a nearby resident, you may still bring an appeal more than 60 days after the permit is filed, if you file within 60 days after you've had a reasonable opportunity to find out about the planned project. For example, you would have 60 days from the time a sign is posted on the property announcing the future construction of a new business (whether or not you actually see the sign), if the sign is posted after the permit has been issued. What types of relief can the ZBA grant? The ZBA can grant (or deny) two types of relief: interpretive and variance. In either case, the ZBA will either affirm, reverse, or modify the enforcement officer's decision. In so doing, it will either grant or deny the requested relief. If the appeal is for an interpretation, the ZBA's decision will be based on the municipal zoning regulations. On the other hand, if the appeal is for a variance, the ZBA's decision will be based on the standards of proof contained in the following state statutes: §267-b of the New York State Town Law, §7-712-b of the Village Law, or §81-b of the General City Law. Because of the range of powers the ZBA has, it is essential that the applicant (or the applicant’s representative) know what type of relief to request when making application to the ZBA. If the applicant believes the enforcement officer's decision is incorrect, the appropriate request is for an interpretation reversing the officer's decision. If the applicant (in this case, the landowner) believes that the officer's decision may be correct, but that he or she can show proof under the statutes that a variance is warranted, then the appropriate request is for a decision granting a variance. It is also possible for an applicant to make a request for an interpretation, and, in the same application, ask for a variance if a favorable interpretation is not granted. After a Notice of Appeal has been filed, what must happen? After a Notice of Appeal has been filed, the ZBA will take up the matter at a future meeting. The ZBA is required to schedule a hearing on the applicant's appeal within a reasonable time, and give notice of the hearing to the applicant. If a variance is requested, the ZBA may be required to take some preliminary steps before it may hear the case. ---PAGE BREAK--- JAMES A. COON LOCAL GOVERNMENT TECHNICAL SERIES 3 First, the ZBA may have to make a determination of significance under the State's Environmental Quality Review Act (SEQRA). Based on this determination, an Environmental Impact Statement (EIS) may or may not be required. If an EIS is required, the case cannot be heard until the EIS has been completed and accepted by the ZBA. Environmental review is not necessary for interpretations of the zoning regulations or for area variances relating to setbacks and lot lines, or for area variances relating to one-, two-, or three-family residences. Second, depending on the location of the property, the ZBA may be required by State law to refer requests for variances to the county planning agency for a preliminary recommendation. If such a referral is required, the ZBA must give the county 30 days to respond. It is also possible that the county's recommendation could result in an increase in the number of votes needed for the ZBA to approve the variance. Appeals for interpretations need not be referred to the county. What is the responsibility of the applicant at the hearing? At the hearing, the applicant may submit written evidence and/or argument to support his or her case. Obviously, the sooner that written testimony or material is received, the more time ZBA members will have to consider the case and reach a proper decision. Therefore, it is a good idea to submit written material with the application, or as soon thereafter as possible, so that it can be sent to ZBA members prior to the hearing. (Please note that the applicant can present written evidence at any time up to the close of the hearing, or even after the hearing if the ZBA allows the record to remain open.) At the hearing, the ZBA will offer the applicant and/or the applicant’s representative the opportunity to present a case for relief. The applicant may personally testify, call witnesses, or submit written evidence, including drawings and graphics. Because an appeal is an adversarial proceeding, the ZBA will offer the municipality an equal opportunity to present its side of the case (the side which supports the enforcement officer's decision). Each side will be given an opportunity to question the other, or the other's witnesses. In addition, ZBA members may ask questions. After the applicant and the municipality have presented their cases, any other interested persons will be given the opportunity to speak and/or submit written material. If necessary, the hearing may be adjourned and continued at a later date. When all parties and interested persons have been granted the opportunity to be heard, the hearing will be closed. Will the ZBA make a decision the night of the hearing? Once the hearing is closed, the ZBA may begin discussing the case and reach a decision, or may postpone discussion and/or its decision until a later meeting. If the ZBA deems it necessary, the hearing may be reopened at any time. Once the hearing has been finally closed, the ZBA must make its decision within 62 days. Materials for Cayuga County Zoning Boards of Appeals Page 45 ---PAGE BREAK--- JAMES A. COON LOCAL GOVERNMENT TECHNICAL SERIES 4 What is the basis for the ZBA’s decision on an interpretation? If requesting a reversal on an interpretative basis, the applicant must prove that the enforcement officer's decision was incorrect, according to a proper reading of the municipality's zoning regulations. If the ZBA has heard a case in the past which involved an interpretation of the same provision, the ZBA's decision will be consistent with its prior ruling. If the ZBA has never interpreted the particular provision at issue, it will use its best judgment as to the municipal governing board's original intent in enacting the provision. Secondarily, the ZBA will try to arrive at the best practical solution for future application by the enforcement officer. Careful and thorough reference will be given to all definitions and other provisions of the regulations. If necessary, the ZBA will refer to authoritative publications on planning and zoning law. The applicant may, of course, use those resources in presenting his own case as well. What must be proven in order to be granted a use variance? If requesting a use variance, that is, permission to establish a use of property not otherwise permitted in the zoning district, the applicant must prove "unnecessary hardship." To prove this, State law requires the applicant to show all of the following: that the property is incapable of earning a reasonable return on initial investment if used for any of the allowed uses in the district (actual "dollars and cents" proof must be submitted); that the property is being affected by unique, or at least highly uncommon circumstances; that the variance, if granted, will not alter the essential character of the neighborhood; and that the hardship is not self-created. If any one or more of the above factors is not proven, State law requires that the ZBA must deny the variance. What must be proven in order to be granted an area variance? If requesting an area variance, that is, permission to build in an otherwise restricted portion of the property (such as in the required front, side or rear yards, or above the required building height, or in excess of the lot coverage regulations), then State law requires the applicant to show that the benefit the applicant stands to receive from the variance will outweigh any burden to health, safety and welfare that may be suffered by the community. State law requires the ZBA to take the following factors into consideration in making its determination: 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; ---PAGE BREAK--- JAMES A. COON LOCAL GOVERNMENT TECHNICAL SERIES 5 NYS Department of State One Commerce Plaza 99 Washington Ave 10th Floor, Suite 1015 Albany, New York 12231-0001 (518) 473-3355 or (800) 367-8488 [EMAIL REDACTED] www.dos.state.ny.us Andrew M. Cuomo, Governor Department of State Division of Local Government January 2008 whether the benefit sought by the applicant can be achieved by some method which will be feasible for the applicant to pursue but would not require a 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 an alleged difficulty is self-created. Unlike the use variance test, the ZBA need not find in favor of the applicant on every one of the above questions. Rather, the ZBA must merely take each one of the factors into account. The ZBA may also decide that a lesser variance than the one requested would be appropriate, or may decide that there are alternatives available to the applicant which would not require a variance. Must the variance, if granted, be exactly what was applied for by the applicant? Whether the ZBA decides to grant a use or area variance, State law requires the ZBA to grant the minimum variance necessary to provide relief, while at the same time taking care to protect the character of the neighborhood and the health, safety and welfare of the community. For these same reasons, the ZBA may also impose reasonable conditions on the grant of any variance. If there is no opposition to my variance request, must the ZBA grant the request? The above rules and standards have been set forth in law and by the courts of the State, and cannot be modified by the Zoning Board of Appeals. If they are not followed, the municipality would be subject to costly lawsuits. The public is entitled to speak in favor of, or against, a proposed project, but opinions in and of themselves are not enough. Applicants and their representatives should be guided in advance by the appropriate legal standards in deciding whether an appeal would be appropriate. If an appeal is taken, the applicant should present clear, definite facts showing that the standards have been met. The ZBA cannot grant relief where proper legal proof is not adequately presented. Materials for Cayuga County Zoning Boards of Appeals Page 47 ---PAGE BREAK--- ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 49 Zoning Board of Appeals JAMES A. COON LOCAL GOVERNMENT TECHNICAL SERIES Includes All Statutory Changes Through the 2005 Legislative Session NEW YORK STATE George E. Pataki Governor DEPARTMENT OF STATE Division of Local Government ---PAGE BREAK--- Publication Date: November 2005 New York State Department of State Division of Local Government Services 41 State Street Albany, New York 12231 (518)473-3355 www.dos.state.ny.us ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 51 CONTENTS Page Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Creation, Function, Powers and Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Composition of the board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Powers and duties of the board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Original jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Limitations on the board’s powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Interpretations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 What is an interpretation? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 The basis of an interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Variances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 What is a variance? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 The Use variance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Reasonable return . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Unique circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Essential character of the neighborhood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Self-created hardship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 A final word on use variances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 The Area variance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Undesirable change in the neighborhood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Alternative to a variance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Substantiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Impact on environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Self-created difficulty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Minimum variance necessary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Procedure by and before the Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Who are the proper parties before the board? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 How an appeal is taken to the board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Referral to a planning agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Environmental quality review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Time and notice for the board’s hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Conduct of the hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 The Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Rehearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Filing the Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 ---PAGE BREAK--- 1 Introduction A zoning law is a community's guide to its future development. That is its purpose. It is not meant to be just another governmental intrusion, another bit of red tape to be untangled before the property owner can go ahead with his plans. The protections afforded residents and property owners within the community from undesirable development come from the restrictiveness of zoning. Traditionally, zoning is characterized by pre-set regulations contained in the ordinance or local law, and applicable uniformly within each district. A landowner can look at the zoning map and regulations and know that if he follows them, he has a right to use his land in a certain way, and that neighboring property is subject to the same restrictions. But, because all land in the district is subject to the same rules, and because no two parcels of land are precisely the same, problems can arise. When the first zoning ordinance in this country was passed in New York City in 1916, there was grave doubt that the courts would uphold its constitutionality, since it was a new and, at that time, radical system of land use control. Various "safety valves" were, therefore, included in that first ordinance, in an attempt to relieve the pressure of too rigid enforcement of the zoning ordinance and any attendant hardship, and also to attempt to ensure judicial approval of the new concept. Foremost among these devices was the concept of an administrative body that would stand as a buffer between the property owner and the court, designed "to interpret, to perfect, and to ensure the validity of zoning."1 That administrative body is the board of appeals, sometimes referred to as a board of adjustment. That the concept of zoning received judicial approval is history.2 The "safety valve" aspect of boards of appeals was recognized by the courts of New York State as early as 1925, when a court discussed the fact that zoning regulations limit the freedom of action of an owner in dealing with his/her property and, by their very nature, raise constitutional questions as to whether an individual's rights are violated. The court found: "The creation of a board of appeals, with discretionary powers to meet specific cases of hardship or specific instances of improper classification, is not to destroy zoning as a policy, but to save it. The property of citizens cannot and ought not to be placed within a strait-jacket. Not only may there be grievous injury caused by the immediate act of zoning, but time itself works changes which require adjustment. What might be reasonable today might not be reasonable tomorrow."3 These observations concerning the importance of boards of appeals will be relevant as long as zoning exists. They should be engraved on the door of the meeting room of each board of appeals and recited by board members along with their oath of office. However, the quote should not be taken to mean that boards of appeals have a blank check to relieve every hardship caused by zoning ordinances or local laws. Great care must be taken to ensure that the purpose and intent of the ordinance or local law is carried out, lest too many changes without proper foundation destroy the zoning itself. The Court of Appeals, New York State's highest court, has recognized the necessity for and the value of boards of appeals as a "safety valve" to prevent the oppressive operation of zoning laws in particular instances, when the zoning restrictions are otherwise generally reasonable.4 And each municipal attorney, ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 53 2 property owner and judge will agree with Chief Judge Cardozo's observation that: "There has been confided to the Board a delicate jurisdiction and one easily abused."5 The first section of this publication discusses the board of appeals - its composition, powers, duties and limitations. Some of its important functions, such as the granting of area and use variances, and the procedure governing such boards and those that appear before them, are covered in subsequent sections. A note regarding semantics: zoning may be adopted in cities, towns and villages by local law. Cities and towns also retain the alternative of adopting zoning by ordinance. This choice does not affect the functions and power of boards of appeals in cities or towns in any way. The terms “zoning law” and “zoning ordinance” are thus used interchangeably in this publication. Creation, Function, Powers and Duties Composition of the board The statutes6 provide that the governing board shall provide for the appointment of a board of appeals. This must be done in the zoning ordinance or local law itself. The appointment is not discretionary, as in the case of a planning board, but must be made in any municipality which has adopted zoning. The statutes provide for a board of three or five members. Prior to July 1, 1992, the Town Law, and prior to July 1, 1994, the General City Law, authorized creation of five or seven-member boards; accordingly, many seven-member boards continue to exist in towns and cities. Such boards may continue to function until the governing board reduces the membership to three or five.7 The statutes provide for staggered terms of three years for three-member boards and five years for five-member boards. Their successors are appointed for three or five- year terms, depending on the size of the board.8 It should be noted that pursuant to section 10 of the Municipal Home Rule Law, villages and towns, by local law, may supersede or modify any provisions of the Village Law and Town Law, respectively, in their application to a particular village or town. This means that, by local law, a village or town may vary the requirements set forth in the Village Law or Town Law, relating to the number of members on the board of appeals and their terms of office. City charters may also set forth particular requirements that vary from those of the General City Law. In fact, since the sections of the General City Law that affect boards of appeals are not applicable to all cities, any city may adopt local law provisions that supersede the General City Law provisions as they may relate to its board of appeals. Anyone wishing to gain a full understanding of the structure and powers of a particular city’s zoning board of appeals should, therefore, consult both the city charter and its relevant local laws. General City Law provides that the mayor (or city manager in a city having a city manager) shall appoint the members of the board of appeals and designate its chairperson.9 In towns, both the appointment of members as well as the designation of the chairperson are made by the town board.10 In villages, owing to a 1996 amendment to the Village Law, both the appointment of members and the designation of the chairperson are made by the mayor, subject to the approval of the board of trustees.11 In cities and towns, any appointment to fill a vacancy occurring during a term of office is ---PAGE BREAK--- 3 made in the same manner as for full terms described above. In villages, however, an appointment to fill a vacancy occurring during a term of office is made by the mayor unilaterally, without the need for approval by the trustees. In all municipalities, the chairperson is given the power to call meetings, administer oaths and compel the attendance of witnesses. The Town Law and Village Law further provide that the town board and village mayor may remove any member of the board of appeals, for cause, after a public hearing. Both sections provide how vacancies shall be filled. The same powers are granted by the General City Law to a mayor or city manager, as the case may be. Examples of “cause” might be: the member’s persistent failure to attend meetings; or to attend training requirements set by the municipality; or his violation of the municipality’s code of ethics. But it should be clear that mere dissatisfaction with the member’s votes do not constitute “cause.” It is important to note that the statutes specifically state that no member of the governing board shall be eligible for membership on the board of appeals.12 An important amendment to the statutes, which took effect in 1998, provides that a municipality may adopt a local law providing for the appointment of any number of alternate members of the board of appeals, to serve in place of regular members who are unable to participate in a particular matter due to a conflict of interest.13 When appointed, alternate members serve at the call of the chairperson of the board. Whereas the terms of office of regular members are set by state law, the terms of office of alternate members must be set by the governing board in its zoning law. Towns and villages may also supersede the above provisions to provide for the appointment of alternates to serve in the case of absences caused by reasons other than a conflict of interest.14 Whether a person is a regular or an alternate, a board of appeals member is a public officer, and is, therefore, subject to the requirements of the Public Officers Law relating to the basic qualifications for office (age, residence and citizenship) set forth in that statute. Additionally, he or she must take and file the constitutional oath of office at the beginning of each of his or her terms of office on the board. Lastly, the statutes allow the local governing board to establish training and education requirements as a qualification for continuing service on the board of appeals.15 Powers and duties of the board The powers and duties of the zoning board of appeals are specifically set forth in the statutes. As is usually the case in planning and zoning, however, this does not mean that there has not been extensive litigation and judicial interpretation of these provisions. There are very few, if any, fields of law that have generated more litigation than that dealing with boards of appeals. All zoning boards of appeals are directly given appellate jurisdiction by state law. Appellate jurisdiction is the power to hear and decide appeals from decisions of those officials charged with the administration and enforcement of the zoning ordinance or local law. This is the primary function and purpose of a zoning board of appeals in zoning administration, and encompasses the power (if an appeal is properly taken to the board) to interpret the zoning ordinance or local law and to grant variances. The General City Law, Town Law and Village ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 55 4 Law provide that boards of appeals are limited to appellate jurisdiction "unless otherwise provided [by local law or ordinance]." Where a zoning ordinance or local law gives a zoning board of appeals powers that are in addition to its appellate powers, the additional powers are referred to as "original jurisdiction." Matters involving original jurisdiction may be granted to a zoning board of appeals by the zoning law or ordinance, but do not have to be. Examples of original jurisdiction include the power to grant special use permits and the power to approve site plans. There is nothing in the statutes that specifically provides for these powers to be exercised by zoning boards of appeals. If they are given to such boards it will be because the municipal zoning ordinance or local law so provides. As noted above, the board of appeals is an appellate body primarily; the statutes say it must be. Unless specifically granted to it, it has no original jurisdiction. It is limited to “hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation or determination made by the administrative official charged with enforcement of any [zoning ordinance or local law].” Thus, in a case in which the parties to a dispute appeared before a board of appeals for its interpretation of the terms of a zoning ordinance, without having applied for a permit, been denied the permit and then appealed it, the court declared the findings of the board null and void.16 The court found that the provisions of the ordinance involved and section 81 of the General City Law clearly indicate that the board of appeals is vested only with the appellate power of review and revision of the enforcement officer's decisions. The court stated: "In other words, in the absence of an application to the building inspector for a building permit or certificate of occupancy, in the absence of a denial of such application by him on the ground that the proposed use violates the Zone Ordinance, and in the absence of an appeal from such decision to the board of appeals, the board has no jurisdiction or power to make any ruling or declaratory judgment as to the meaning of any provision of the ordinance."17 The same reasoning would hold true for the issuance of a variance. That, too, is an appellate power. In general, a property owner cannot simply appear at the board of appeals office and ask for a variance. While it is true that only the board of appeals can issue a variance, it is equally true that it cannot issue a variance except on an appeal from a decision made by the zoning enforcement officer.18 It is only on such appeals - and then only when the applicant can show that he meets the legal requirements for a variance - that the board of appeals can issue one. Note, however, that we stated "in general" above. There are particular exceptions which apply in cases where area variances are necessary in the course of subdivision, site plan and special use permit applications. In such cases, the statutes allow an applicant to apply directly to the board of appeals for an area variance without having to first apply to the enforcement officer for a permit.19 In its exercise of the appellate power, it has been held that it is not the board’s function merely to decide whether the enforcement officer’s action was “arbitrary and capricious.” Rather, the board of appeals must conduct a de novo review; that is, it must review all of the facts which formed the basis of the officer’s decision, and must decide the case as though it were the enforcement officer.20 In this context, it becomes easier to appreciate the following words of the enabling statutes: ---PAGE BREAK--- 5 “The board of appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, 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 enforcement of such ordinance or local law and to that end shall have all the powers of the administrative official from whose order, requirement, decision, interpretation or determination the appeal is taken.”21 Original jurisdiction As has been pointed out, a board of appeals may exercise original jurisdiction if the local law or ordinance gives it this jurisdiction. An example of the type of original jurisdiction delegated to zoning boards of appeals is the special use permit. The special use permit is a means to permit certain types of uses only after an administrative decision, based on requirements fully set forth in the zoning law. The conditions are the sort that ensure that the use will properly relate to its surroundings. For example, a zoning law might permit gasoline stations in commercial districts, but only by special use permit - which is to be issued upon a showing that the proposed facility will have X type of landscaping, Y type of signage, and Z type of fencing. The board of appeals can be the body authorized to issue special use permits upon a showing by the developer that she/he meets these requirements. As can be seen, no appeal is involved in such an instance. In exercising this original jurisdiction (in the case of special use permits), it should be noted that the board of appeals is only an administrative body; it has no power to legislate. While the functions delegated to it by the local governing body do not have to spell out standards and conditions for the issuance of special use permits in detail down to the last nail, suitable standards do have to be set forth in the zoning law to guide the board. In one case22, it was claimed that a section of a town zoning ordinance requiring "adequate" parking facilities for proposed construction was unconstitutional, because it failed to establish any standard to guide the board of appeals in the exercise of its discretion. The court upheld the validity of the section on the ground that, although stated in general terms, it was capable of reasonable application and sufficient to limit and define the board's discretionary powers. Usually, we think of the zoning board of appeals as part of the zoning mechanism of the community, and the discussion above has attempted to deal with it in that context. However, the zoning board of appeals is given several functions that do not relate to the zoning law, and since these functions are directly granted to boards of appeals by state enabling legislation, it is important that they be understood. The first of these non-zoning functions concerns the local official map. An official map is a police power device to implement a community's plans for development by protecting the rights-of-way for future streets, drainage systems and parks. These are shown on an official map, but remain in private ownership until the community is ready to purchase them. Certain restrictions are imposed on the landowner's use of the land in the interim, the idea being to save the community the greater cost of acquiring improved land or resorting to an undesirable adjustment in the facility. The statutes authorizing the establishment and amendment of official maps are General City Law, sections 26 and 29, Town Law, sections 270 and 273, and Village Law, section 7-724. The statutes provide a ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 57 6 procedure whereby an owner whose land is shown on a map can obtain a permit to build on it. It is here that the zoning board of appeals has a role to play. General City Law, section 35, Town Law, section 280, and Village Law, section 7-734 all provide that if the land within a mapped street or highway is not yielding a fair return on its value to the owner, the board of appeals - or other similar board in any city, town or village which has established such a board having power to make variances or exceptions in zoning regulations - shall have the power to grant a building permit. The vote of a majority of the board's membership is required and a hearing must be held, at which the parties in interest and others must be given the opportunity to be heard. In cities, 15 days' notice of hearing is required; in towns, 10 days' notice is needed, and notice must be published in a newspaper of general circulation in the municipality. The Village Law does not specify how such notice is to be given. The second "non-zoning" area of zoning board of appeals responsibility concerns a prohibition contained in the statutes against issuance of building permits unless streets giving access to the structure exist (or a performance bond covering their construction has been furnished). The prohibition is contained in General City Law, section 36, Town Law, section 280-a and Village Law, section 7-736. As in the case of official maps, the statutes give the zoning board of appeals the power to make reasonable exceptions to the prohibition, or grant an area variance, if an applicant appeals to it from an adverse decision of the administrative official in charge of issuance of permits. A 1996 amendment to the above statutes removed an obsolete reference to “practical difficulty or unnecessary hardship.” In granting an area variance from the access requirements of these statutes, the board of appeals now must apply the same criteria as are otherwise applicable to area variances (see discussion of area variances, infra). The procedure for such an appeal is the same as in the cases of appeals on zoning regulations . The third area of board power outside the zoning framework has to do with county official maps. Under General Municipal Law, section 239-e, procedures are established for county official maps which are similar to the local official maps described above. As in the case of the local maps, a procedure is set forth for the issuance of building permits in land shown on a county official map. General Municipal Law, section 239-e(7) gives this function to the local zoning board of appeals “or other board established by the municipality . . . to issue variances or make exceptions in zoning regulations.” However, when issuing permits for buildings in lands shown on a county map, the board of appeals must do so by a two-thirds vote of its membership (it will be remembered that permits for building in land shown on a local official map may be issued by a majority vote). A hearing is required, on 10 days' notice. A fourth non-zoning area of board jurisdiction concerns the issuance of building permits where a proposed structure has frontage on or access to a county road or other site shown on a county official map. General Municipal Law, section 239-f establishes a procedure that municipalities must follow before issuing such a permit. The municipality must notify the county planning board and superintendent of highways (or commissioner of public works) of an application for such a permit. The latter has 10 working days to report back to the municipality his/her approval or disapproval. The building permit may then be issued only in accordance with this report - unless the local zoning board of appeals varies the report's requirements. To do so, it must act by a two- thirds vote, and after a hearing on 10 working ---PAGE BREAK--- 7 days' notice. The last area of jurisdiction given the zoning board of appeals by statute concerns airport approach regulations. Municipalities are authorized by General Municipal Law, section 356 to adopt regulations which would govern development in airport hazard areas, as defined in that section. The section provides that persons aggrieved by decisions of administrative officials charged with the enforcement of these regulations may appeal to the local zoning board of appeals. Limitations on the board's powers The board of appeals, then, is an administrative body, of limited jurisdiction and powers, designed to function as a "safety valve" to relieve the pressure of rigid and inflexible provisions of zoning regulations. However limited the jurisdiction of boards of appeals, they are still vitally important. The legislative body of a municipality cannot take care of the details which come before the board of appeals, nor should it. It is predictable that a zoning law will work some hardship on some people, because of its very purpose of applying restrictions on land use in various districts in the community. The board of appeals serves an essential role examining those restrictions in the individual matters that are brought before it, with the power to vary these restrictions if the circumstances show the need and essential legal criteria are met. At this point in the discussion, having seen what boards of appeals may do, we need to clarify what they cannot do. Though it is ordinarily preferable to set forth a subject in positive terms, the functions of a board of appeals can be seen better if they are contrasted with the limitations on those functions. First, bear in mind that a board of appeals is an administrative body, not a legislative body. It does not have any legislative functions; these are in the sole province of the city council, the town board and the village board of trustees. That the board of appeals did not have any legislative powers was recognized in early litigation involving the powers of the board: "No power has been conferred upon the Board of Standards and Appeals [the board of appeals in New York City] to review the legislative general rules regulating the use of land [cite]. The board does not exercise legislative powers. It may not determine what restrictions should be imposed upon property in a particular district. It may not review the legislative general rules regulating the use of land. It may not amend such general rules or change the boundaries of the districts where they are applicable. Its function is primarily administrative."23 The above quote contains an excellent capsule review of the "thou shalt nots" which govern the action of a board of appeals. First, the board of appeals may not itself impose zoning. This is the function of the local legislative body when it adopts or amends the zoning law. In an interesting discussion of this point, the State Comptroller observed that: "We are satisfied that no authority exists in the General City Law or elsewhere for the delegation of the law- making powers of a legislative body to a purely administrative board, such as a board of zoning appeals."24 What about special use permits? Doesn't the authority that may be delegated to the board to issue special use permits sound somewhat like a legislative power? The answer is that it is ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 59 8 not; it is a purely administrative function, requiring that standards be set out in the zoning law to guide the board of appeals in passing upon applications for such permits. Even if such standards are general, courts will look to see that they have been obeyed. Nor can a board of appeals review the general rules laid down by the legislative body respecting the use of land. It has no power to set aside a zoning law on the ground that its terms are arbitrary, unreasonable and unconstitutional.25 Also, the board of appeals does not have the authority to amend the zoning regulations or change the boundaries of the districts where they are applicable. Understandably, the distinction between the power possessed by a board of appeals to grant variances, and the power to amend a zoning law, which the board of appeals clearly does not possess, may be a very fine distinction indeed. But it is an important distinction. An amendment to zoning requires legislative action by the governing board. The change thus enacted should be supported by the municipality’s comprehensive plan, but requires no proof of hardship or any showing of facts relating to a specific parcel of land. Against this background, the State Comptroller, in Opinion No. 65-770, examined a number of cases in which the purported granting of a variance was held to be instead an attempt by the board of appeals to amend the zoning regulations. Rather than attempt to paraphrase this part of the excellent opinion , we will quote at length: "Perhaps illustrations will be more helpful than explanations. In Schmitt v. Plonski (215 N.Y.S.2d 170), a board of zoning appeals had granted a variance to construct a motel in a district where motels were prohibited. When the owner sought a permit to construct a theater on the plot, he was refused and this refusal was upheld by the court on the ground that the variance originally granted did not alter the classification of the land so as to permit of other uses equal with a motel. The variance had simply permitted the motel-use of the land; it had in no way amended the zoning ordinance or reclassified the land. As Anderson (supra, section 18.54 p. 604) points out, `Most variances involve a single lot or at least a small parcel of land. Where a variance granted by a board of zoning appeals purports to permit the use of a large tract of land for a proscribed purpose, there is a strong possibility that the purported variance will be called an amendment . . [Ed. note: the foregoing discussion by Anderson is now substantially found in Salkin, New York Zoning Law and Practice, §29:51.] Accordingly, in each of the following instances, the court upheld a refusal by a board of zoning appeals to grant a so- called variance, on the ground that the transfer of a large tract from one classification to another really constituted a zoning ordinance amendment: 1. Reclassifying as commercial a 5 ½ acre tract which constituted an entire residential district (Re Northampton Colony, Inc., 30 Misc.2d 469, 219 N.Y.S. 2d 292, aff'd 16 App. Div.2d 830, 230 N.Y.S.2d 668 (1961)). 2. Reclassifying into one-acre building lots a 40-acre area zoned for two-acre ---PAGE BREAK--- 9 residential lots (Hess v. Zoning Board of Appeals, 17 Misc.2d 22, 188 N.Y.S.2d 1028 (1955)). We think that all the foregoing renders conclusive the principle that a board of zoning appeals may not be delegated the power to amend a zoning ordinance or to legislate with respect thereto. Its powers in this regard are limited to the granting of variances within the meaning of that term as hereinbefore discussed." That the board of appeals is limited in its power to grant variances by the criteria specified in the enabling statutes has been made clear by the Court of Appeals.26 Interpretations What is an interpretation? The zoning enabling statutes provide boards of appeals with the power to hear and decide appeals from and review decisions of the administrative official responsible for the enforcement of the zoning regulations.27 The statutes specifically allow the board to reverse or affirm, wholly or partly, or to modify the decisions appealed to it.28 This general statement of the board’s appellate jurisdiction allows the board to interpret the municipality’s zoning regulations. The interpretation power is part of the appellate jurisdiction of the board of appeals, and cannot lawfully be exercised unless an appeal has been taken from an enforcement officer’s decision.29 In its simplest terms, an appeal seeking an interpretation is an appeal to the board of appeals claiming that the decision of the enforcement official was incorrect. For example, if an applicant for a building permit receives a decision from the zoning enforcement official denying the permit, and if the applicant believes that the permit should have been granted under the terms of the zoning law, the applicant may appeal from the denial to the board of appeals. The appeal would claim that the denial of the permit was incorrect, and would ask the board of appeals to reverse the decision of the enforcement official. Thus, in Hinna v. Board of Appeals30, the applicant had applied to the building inspector for a permit to build a motel. The application was denied, since it was not clear that motels were allowed in the zoning district. The applicant appealed from that denial to the board of appeals, seeking a decision interpreting the zoning ordinance in her favor. The board of appeals upheld the denial of the permit, and agreed with the building inspector’s interpretation that the zoning district regulations did not permit motels. The board of appeals’ decision was subsequently sustained by a court. The appeal could also be from a decision of the enforcement official citing a violation of the zoning regulations. Thus, in Matter of Levine v. Buxenbaum31, the court held that the board of appeals has the power to hear an appeal from a notice of violation where the landowner claimed that there was in fact no violation because the property was a valid non- conforming use. An appeal may also be taken to the zoning board of appeals from a decision of the enforcement official issuing a permit. Thus, where a permit has been issued, a neighbor may file an appeal with the board of appeals claiming that the issuance was incorrect, and asking the board to interpret the zoning regulations and reverse the decision of the enforcement official.32 Thus, in Pansa v. Damiano33, petitioners, who owned residential property, were able to appeal to the board of ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 61 10 appeals from the issuance of a permit for a structure on property adjacent to theirs. They claimed that the permit had been issued for a use which was prohibited in the zoning district and that the setback requirements were violated. Regardless of the type of action appealed from, the board of appeals may interpret the language of the zoning regulations, apply it to the facts before it and render a decision. The statutes provide that the board shall make such order, decision or determination "as in its opinion ought to have been made in the matter by the administrative official charged with the enforcement" of the zoning regulations. The basis of an interpretation The Court of Appeals has held that a zoning board of appeals performs a “quasi-judicial” function when it renders an interpretation of a zoning provision, and, as such, should act according to its own precedent.34 Thus, where a board of appeals has interpreted a particular provision of the municipal zoning law in a prior case, it should follow that precedent. This requirement points up the essentiality of good record-keeping, and of maintaining easy reference to prior decisions. The ideal system will cross-reference the filing of case records according to several parameters, such as: zoning law provision interpreted; location of property; name of appealing party(ies); as well as by simple chronology. Where there are no prior decisions to rely on, the board of appeals should attempt to determine the governing board’s original intent in enacting the provision in question. In arriving at this determination the board should consider prior documentation such as: minutes of governing board meetings; testimony of local officials; and planning advisory documents which may have accompanied the enactment. Case law may also furnish guidance. Although the substance of zoning is generally a local matter, courts have on occasion applied broad interpretive principles in particular zoning contexts, for example, where the question concerns a customary accessory use. In a recent decision, the Appellate Division upheld a city’s board of appeals in its determination that a “beaming” (or hair-removal) operation was not a customary accessory use to a leather finishing facility, where the facility had been in business for many years as a lawful nonconforming use, without performing “beaming,” and where the “beaming” would have introduced chemical processes not theretofore employed at the facility.35 Finally, where the case calls for the board of appeals to interpret the meaning of a term, and there is no precedent to guide the board, it may desire to refer to one or more of the various zoning treatises containing standard definitions of terms, or even to the dictionary. Variances What is a variance? As noted in the introduction, various "safety valves" were built into the original New York City zoning ordinance in 1916, the most important of which is the zoning board of appeals’ power to grant variances. It is the purpose of the following sections to examine the role of the variance in the general scheme of zoning. In essence, a variance is permission granted by the zoning board of appeals so that property may be used in a manner not allowed by the zoning. It is only the zoning board of appeals that has the power to provide for such exceptions from the zoning. And since zoning is meant to implement the municipality's ---PAGE BREAK--- 11 development objectives and protect the health, safety and general welfare of the people, it follows that there are strict rules governing when variances may be provided. There are two types of variances - use and area - and we will take them up separately since the rules for each are different. One point should be emphasized at the outset. Though it is not a legislated change in zoning, a variance is essentially a change in the zoning law as it applies to the subject parcel of land. It therefore applies to the land itself, and not merely to the owner who happens to have applied for it. While a variance may be conditioned so as to be temporary where the nature of the use will be temporary a construction trailer), the typical variance must instead “run with the land.” It cannot be made to apply only to the current owner. “It is basic that a variance runs with the land and, ‘absent a specific time limitation, it continues until properly revoked’ . . .”36 The Use variance The use variance has been defined as: . . one which permits a use of land which is proscribed by the zoning regulations. Thus, a variance which permits a commercial use in a residential district, which permits a multiple dwelling in a district limited to single-family homes, or which permits an industrial use in a district limited to commercial uses, is a use variance."37 As the use variance grants permission to the owner to do what the use regulations prohibit, this power of the board of appeals must be exercised very carefully lest there be serious conflict with the overall zoning scheme for the community. The showing required for entitlement to a use variance is therefore intended to be a difficult one. The General City Law, Town Law and Village Law specifically incorporate this concept into the language of the statutes. The statutes38 provide as follows: "‘Use variance’ shall mean 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." Early cases in New York State recognized, without defining terms, that a zoning board of appeals had an important function in the granting of variances. The courts, up until 1939, had discussed general criteria for the granting of variances. Although these early decisions recognized the importance of the variance procedure and its inherent limitations, it was in that year that the landmark case of Otto v. Steinhilber, supra, was decided, and laid down specific rules governing the finding of unnecessary hardship in the granting of use variances. In that case, the owner of a parcel of property which was located in both a residential and commercial zone applied for a variance enabling him to use the entire parcel for a skating rink, which was a permitted commercial use. The lower court upheld the granting of the use variance, which ruling was affirmed by the Appellate Division. The Court of Appeals, the highest court in the State, reversed these holdings and in doing so, set forth the definitive rules that are still followed today. Indeed, now, these rules are codified in the State statutes. The court found that the object of a use variance in favor of property owners suffering unnecessary hardship in the operation of a ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 63 12 zoning law . . is to afford relief to an individual property owner laboring under restrictions to which no valid general objection may be made." After a discussion of the role of the zoning board of appeals in the granting of variances, the court found that a board could grant a use variance only under certain specified findings: "Before the Board may exercise its discretion and grant a variance upon the ground of unnecessary hardship, the record must show that the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone; that the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself; and that the use to be authorized by the variance will not alter the essential character of the locality."39 These rules have since become known by almost all practitioners as the "Otto" rules for granting use variances. The court found that the petitioner was not entitled to the variance sought, because the three grounds cited above had not been proven. Of greater importance is the fact that once the court had enunciated these rules, a great element of certainty had been injected into this field of law. Hardly a court decision in this area has since been handed down that has not cited the rules formulated in the Otto case. The statutes40 essentially codify the Otto rules, and those of cases following Otto, specifically regarding the issuance of use variances in cities, towns and villages: 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 every permitted use under the zoning regulations for the particular district where the property is located, 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.” It will be noted that the overall statutory test for the issuance of use variances remains "unnecessary hardship" as the Court of Appeals held in the Otto case. The statutes now define that term, using the three criteria based upon the Otto case, as they have been refined by court decisions over the years. The fourth requirement in the above language is based upon court decisions after the Otto case, which held that a use variance cannot be granted where the unnecessary hardship was created by the applicant. The Otto rules have been refined by court decisions over the years. In cities, towns and villages, the statutory rules for granting use variances reflect these decisions. The best way to understand the rules is to examine each in its turn, together with the court decisions that shaped them. Reasonable return ---PAGE BREAK--- 13 The statutes41 provide that the first test for the issuance of a use variance is that the applicant must demonstrate to the board of appeals that: "the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence." In essence, this is a restatement, in the State statute, of the first prong of the Otto test. The salient inquiry is whether the use allowed by the zoning law is yielding a reasonable return.42 An applicant must prove that he or she cannot realize a reasonable return from each of the uses permitted in the zoning district. The mere fact that the property owner may suffer a reduction in the value of property because of the zoning regulations, or the fact that another permitted use may allow the sale of the property for a better price, or permit a larger profit43, does not justify the granting of a variance on the grounds of unnecessary hardship.44 It has been held that only by actual "dollars and cents proof" can lack of reasonable return be shown. In the case of Everhart v. Johnston45, a variance was granted to the owner of a property in a residential zone to enable him to house an insurance and real estate agency. A State Supreme Court annulled the granting of the variance, which determination was affirmed by the Appellate Division, which found "a complete lack of the requisite proof as to the first requirement that the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone).” The court explained its findings as follows: "A mere showing of present loss is not enough. In order to establish a lack of `reasonable return', the applicant must demonstrate that the return from the property would not be reasonable for each and every permitted use under the ordinance (Matter of Forrest v. Evershed, 7 N.Y. 2d 256). Moreover, an applicant can sustain his burden of proving lack of reasonable return, from permitted uses only by ‘dollars and cents proof’ . . (Id.) The "dollars and cents proof" rule was again enunciated in a Court of Appeals case which held that "a landowner who seeks a use variance must demonstrate factually, by dollars and cents proof, an inability to realize a reasonable return under existing permissible uses."46 At this point, it would be good to mention briefly a property use that is especially hard hit by the reasonable return requirement. That is a nonconforming use, upon which an especially heavy burden falls when it must be shown that the user cannot derive a reasonable return from any permitted use. An applicant who maintains a nonconforming use must not only show that all permitted uses will be unprofitable, but also that the nonconforming use itself cannot yield a reasonable return. In a case in which the owner of a nonconforming gasoline station applied for a variance, the court pointed out this additional burden. "In order to demonstrate hardship, the petitioners had the burden of showing that ‘the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone.’ Since the operation of their gasoline station, as it presently exists, was a nonconforming use which was suffered to continue because it had been devoted to such a use before the prohibitory zoning ordinance took effect, it was a use which was allowed in that zone.’ Business uses, such as retail stores ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 65 14 generally, real estate offices, etc., were also, of course, ‘allowed in that zone.’ Hence, the petitioners had the burden of proving that their property could not yield a ‘reasonable return’ if used for a gasoline station (as it presently exists) or for any business use (retail stores generally, real estate offices, etc.)."47 Unique circumstances The second test that an applicant for a use variance must adhere to under the state statutes, is that the property’s plight is due to unique circumstances and not to general neighborhood conditions. The statutes48 provide that an applicant must demonstrate to the board: "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." As a leading text writer has observed: "Difficulties or hardships shared with others go to the reasonableness of the ordinance generally and will not support a variance relating to one parcel upon the ground of hardship."49 The Court of Appeals, in the early case of Arverne Bay Construction Co. v. Thatcher50, had before it a case involving the owner of land in a district classified as residential, in an area almost completely undeveloped, who sought a variance enabling him to operate a gasoline station. The Court of Appeals held a variance should not have been granted. The court stated: "Here the application of the plaintiff for any variation was properly refused, for the conditions which render the plaintiff's property unsuitable for residential use are general and not confined to plaintiff's property. In such case, we have held that the general hardship should be remedied by revision of the general regulation, not by granting the special privilege of a variation to single owners." This finding of "uniqueness" has also been referred to by the Court of Appeals as that of "singular disadvantage" by the virtue of a zoning ordinance. In the case of Hickox v. Griffin51, the court stated: "There must at least be proof that a particular property suffers a singular disadvantage through the operation of a zoning regulation before a variance thereof can be allowed on the ground of `unnecessary hardship'." InDouglaston Civic Association, Inc. v. Klein52, the Court of Appeals discussed the "unique circumstances" requirement and held that the property was indeed unique, justifying the grant of the variance: "Uniqueness does not require that only the parcel of land in question and none other be affected by the condition which creates the hardship . . . What is required is that the hardship condition be not so generally applicable throughout the district as to require the conclusion that if all parcels similarly situated are granted variances the zoning of the district would be materially changed. What is involved, therefore, is a comparison between the entire district and the similarly situated land." A use variance was properly granted in Douglaston where the land in question was ---PAGE BREAK--- 15 shown to be swampy, even though other land in the vicinity shared that characteristic. The uniqueness requirement must be addressed in the context of the nature of the zone in general. Such a relationship makes sense when it is remembered that a variance should not be used in lieu of a legislative act. A parcel for which a variance has been granted, therefore, need not have physical features which are peculiar to that parcel alone (as required in Hickox, above). On the other hand, the hardship caused by physical features cannot prevail throughout the zone to such an extent that the problem should be addressed by legislative action, such as a rezoning. The uniqueness relates, therefore, to the hardship, which in turn relates to the land, and not to the personal circumstances of the owner. In Congregation Beth El of Rochester v. Crowley53, a religious organization whose synagogue had burned down applied for a use variance so that it could sell the now-vacant property for construction of a gasoline service station. The organization argued that the uniqueness standard was satisfied in that it was financially impracticable to rebuild a synagogue on the site. The court instead held that “It is not the uniqueness of the plight of the owner, but uniqueness of the land causing the plight, which is the criterion.” Essential character of the neighborhood The third test that must be met pursuant to state statutes54 before a use variance may properly be granted, is that "the requested use variance, if granted, will not alter the essential character of the neighborhood." Because one of the basic purposes of zoning is to adopt reasonable regulations in accordance with a comprehensive plan, it follows that changes which would disrupt or alter the character of a neighborhood, or a district, would be at odds with the very purpose of the zoning regulation itself. Thus, in the case of Holy Sepulchre Cemetery v. Board of Appeals of Town of Greece55, a nonprofit cemetery corporation sought a variance to enable it to establish a cemetery where such use was not provided for in the applicable zoning ordinance. The court conceded the fact that the area surrounding the property in question was sparsely settled and practically undeveloped, but upheld the action of the board denying the use variance sought. The court recognized the right of the zoning board of appeals to take notice of the fact that a residential building boom could reasonably be expected in a few years, and that the proposed cemetery could quite possibly interfere with the residential development of the section. In another case, a transit corporation sought to lease land in a residential zone, used as a bus loop, to an oil company, which planned to erect a gasoline station. The court found that the zoning board of appeals properly refused to grant the use variance, because the variance, if granted, would interfere with the zoning plan and the rights of owners of other property, and that the evidence before the board was sufficient to sustain its findings that the requested use, if permitted, " . . . would alter the essential residential character of the neighborhood."56 In the case of Matter of Style Rite Homes, Inc. v. Zoning Board of Appeals of the Town of Chili57, the plaintiff corporation owned property in a one-family residential district, part of which was appropriated by the State for highway purposes. The plaintiff then applied for a use variance permitting it to use its remaining land for a garden apartment development. In upholding the decision of the ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 67 16 zoning board of appeals denying the use variance, the court held that: "Finally, it seems clear that the plaintiff's proposed use of the property for a 60-family multiple dwelling complex is incompatible with the over- all plan and policy for development of the town and would create conditions different from those existing in the locality by adding problems incident to an increase in population density as well as unquestionably altering the essential character of an otherwise residential neighborhood developed in reliance on the stability of the ordinance." One court has held that the applicant will fail this third test if it is shown that the proposed project would “stimulate a process which in time would completely divert . . .[the neighborhood’s] . . . complexion.” In other words, the proposed project need not in and of itself alter the character of the neighborhood if it is shown that the project would set a pattern for future development that would, in time, alter the neighborhood’s character.58 Self-created hardship While it was not a factor in the Otto decision, there is one more important consideration that must be noted before leaving the discussion of use variances. That is the so-called rule of "self-created hardship." The self-created hardship rule has now been codified in the statutes.59 It is well settled that a use variance cannot be granted where the "unnecessary hardship" complained of has been created by the applicant, or where she/he acquired the property knowing of the existence of the condition she/he now complains of. In Carriage Works Enterprises, Ltd. v. Siegel60, in addressing self-created hardship, the court stated “The courts should not be placed in the position of having to guarantee the investments of careless land buyers.” The same advice should apply to zoning boards of appeals. In the case of Clark v. Board of Zoning Appeals61, the Court of Appeals, before proceeding to discuss the grounds necessary for the granting of a use variance, noted that the property in question was purchased to be used as a funeral home in a district where such use was not permitted under the zoning ordinance. The court observed that: "Nevertheless . . the owner] . . . purchased the lot, then applied for a variance. We could end this opinion at this point by saying that one who thus knowingly acquires land for a prohibited use, cannot thereafter have a variance on the ground of `special hardship' . . ."62 Note, however, that a contract vendee – i.e., a person who enters into an agreement with the owner to purchase the property contingent on the grant of a variance – is a legitimate “person aggrieved” (see “Who are proper parties before the board,” below). Since the contract vendee has yet to purchase the property, he/she cannot be said to present self-created hardship, but must rely on the circumstances of the owner with whom he/she has a contract. A final word on use variances The rules laid down in the statutes and in the applicable cases are requirements. They must be used by zoning boards of appeals in reviewing applications for use variances. Furthermore, the board must find that each of the elements of the test has been met by the applicant. ---PAGE BREAK--- 17 The board must also consider the effect of the grant of the use variance on the zoning law itself. The Court of Appeals pointed out in the Clark decision, supra, . . no administrative body may destroy the general scheme of a zoning law by [granting variances indiscriminately] . . The Area variance The statutes63 define an area variance as follows: "‘Area variance’ shall mean 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 regulations." Area variances are thus, as a practical matter, distinguished from use variances in that a use variance applies to the use to which a parcel of land or a structure thereon is put, and an area variance applies to the land itself. In most cases, the difference is clear-cut. If an applicant for a variance wishes to use his property in a residential district for a funeral home, he obviously wants a use variance; if, however, he wishes to build an extra room on his house, and it would violate a side yard restriction, an area variance is just as obviously called for. The rules for the issuance of area variances in all municipalities have changed dramatically since 1992. Prior to July 1, 1992, the standard for the issuance of all area variances was that of "practical difficulty." This term had appeared in the statute for many years and had been interpreted by the courts in a great number of cases significant to its understanding. Since July 1, 1992, however, the Town Law and the Village Law no longer employ this standard, and, since July 1, 1994, the term is no longer applicable in cities. The historic cases interpreting "practical difficulty" will, therefore, not be discussed here. The statutes now specifically set forth the rules for the granting of area variances.64 They provide that in making its determination on an application for an area variance, the board of appeals must balance the benefit to be realized by the applicant against the potential detriment to the health, safety and general welfare of the neighborhood or community if the variance were to be granted. In balancing these interests, the board of appeals must consider the following five factors: 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 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 variance. 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. 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 best way to understand the rules is to ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 69 18 examine each in its turn, together with the court decisions that rely on them. Undesirable change in the neighborhood The board must consider whether the dimensional alteration being proposed will result in a structure or a configuration that will be seriously out of place in the neighborhood. In Pecoraro v. Board of Appeals of the Town of Hempstead65, the Court of Appeals upheld the denial of an area variance that would have reduced the minimum lot size from 6,000 square feet to 4,000, and would have reduced the required frontage from 55 feet to 40. The court held that the board of appeals could rationally conclude that the proposal would seriously compromise the character of the neighborhood, which consisted overwhelmingly of parcels which met the required minimums. Alternative to variance Here, the board should consider alternatives open to the applicant that are lawful under the zoning. Perhaps, for example, a proposed addition can be constructed in a different location on the property, where a variance would not be needed. Or, as one court recently observed, the applicant should have at least explored the possibility, either of acquiring adjoining vacant property, or of selling his substandard unimproved lot to an adjoining neighbor.66 Substantiality It is difficult to quantify “substantiality.” The board should, however, make a reasoned judgment as to whether the nonconformity being proposed is too great, as compared to the lawful dimensions allowed by the zoning law. Some courts have looked favorably upon a board’s application of a simple mathematical analysis. In Heitzman v. Town of Lake George Zoning Board of Appeals67, the court upheld the denial of a variance based in part on the showing that construction would have exceeded the allowable lot coverage by 15%. Impact on environment Here, the board of appeals should weigh the proposal’s potential impact on such factors as drainage, traffic circulation, dust, noise, odor, and impact on emergency services, among others. In one case, a court upheld the grant of a height variance allowing construction of a fence which would screen several exhaust fans installed at the rear of a diner. The court held that substantial evidence supported the board’s decision that the fence would protect the aesthetics of the diner, which had unique design, that installation of a grease reservoir would prevent grease from dripping to the ground, and that the fence would keep grease and fumes from neighboring property.68 Self-created difficulty One court69 shed light on the possible scenarios constituting self-created difficulty as follows: “Where the lot was substandard and nonconforming at the time it was purchased . . . , or where construction occurred due to contractor’s error . . . , or without the benefit of a building permit . . , or where an applicant seeks to construct three homes on a parcel zoned for one house.” On the other hand, said the same court, when an owner builds on a lot he does not thereby preclude himself from obtaining a variance for additional construction in the future. Thus, the board of appeals should not “require homeowners to anticipate all ---PAGE BREAK--- 19 future needs and property uses before one constructs a home, otherwise all subsequent nonconforming desires would be rejected as self-created.”70 But perhaps the most important point we can make here is that self-created difficulty, as it relates to an area variance application, is not the same as self-created hardship, as set forth above with respect to the use variance. Even if present, it constitutes only one factor to be considered by the board of appeals; it does not, in and of itself, act as a bar to the grant of an area variance. Several significant cases have been decided by the courts since the revised area variance standards went into effect in the early 1990's. In Sasso v. Osgood71, the Court of Appeals reversed a decision of the Appellate Division, which had applied the “practical difficulty” test despite its recent disappearance from the statute. The Court of Appeals held that: . . the legislation was enacted to aid nlaypersons–both applicants and lay members of Zoning Boards of Appeal-- in understanding and implementing the existing case law . . . . . . . “We conclude Town Law § 267-b(3)(b) requires the Zoning Board to engage in a balancing test, weighing ‘the benefit to the applicant’ against ‘the detriment to the health, safety and welfare of the neighborhood or community’ if the area variance is granted, and that an applicant need not show ‘practical difficulties’ as that test was formerly applied.” In Cohen v. Board of Appeals of the Village of Saddle Rock72, the Court of Appeals struck down a village’s local zoning law to the extent that it applied standards for the grant of an area variance which went beyond those found in Village Law § 7-712(b)(3). In fact, the village’s own law required adherence to the old “practical difficulty” standard. The Court held: “faced with the turmoil and uncertainty that had plagued the law in this area, the Legislature intended to occupy the field and thus preempt local supersession authority. . . . . “A uniform standard for area variance review . . . has clear advantages. Property owners and zoning practitioners around the state will benefit from a better understanding of the standards for a variance, notwithstanding the unique zoning requirements of each individual locality . . . And far from being an encroachment on local zoning authority, the application of a uniform standard ensures that each locality's zoning decisions will be reviewed consistently by the courts without being subject to the vagaries of a standard elusive of easy definition or clear application . . Minimum variance necessary The statutes73 codify what the courts had previously held: When granting either a use or an area variance, a zoning board of appeals must grant the minimum variance that it deems necessary and adequate, while at the same time preserving and protecting the character of the neighborhood and the health, safety and welfare of the community. Thus, the board need not grant to an applicant everything he/she has asked for. Rather, the board is required to grant only the approval that is absolutely necessary to afford relief. To illustrate this point, in Nardone v. Zoning ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 71 20 Board of Appeals of the Town of Lloyd74, the applicant requested variances to locate 12 one- bedroom and three two-bedroom apartments on one parcel, and six two-bedroom apartments on another parcel. The board instead granted a variance allowing only the construction of 12 one-bedroom apartments on one parcel, and five two-bedroom apartments on the other. The court held that the board had acted rationally and within its scope of discretion in granting a modified approval that, on the facts presented, would afford adequate relief to the owner. Conditions The statutes75 empower the board of appeals, when granting a use or area variance, to impose “such reasonable conditions and restrictions as are directly related to and incidental to the proposed use of the property.” While the statutes now expressly authorize the setting of conditions, the courts long ago held that boards of appeals have the inherent power to impose reasonable conditions to protect the neighborhood.76 We should clearly distinguish conditions from alternatives. While an alternative is a different version of relief – or, perhaps, a way to avoid the need for relief – conditions are instead requirements placed on the enjoyment of the relief that the board actually grants. Conditions are meant to mitigate the impacts of the approved project on both the neighborhood and on the integrity of the zoning law. Conditions must relate solely to the particular land that is the subject of the application, and must not concern unrelated land or other issues. In Gordon v. Zoning Board of Appeals of the Town of Clarkstown77, the court struck down a condition requiring an owner, as a condition of the grant of a side-yard variance, to dedicate a strip of her front yard for a future road- widening project. Further, the conditions must relate to the land and may not be personal to the owner. In St. Onge v. Donovan78 the Court of Appeals struck down a condition placed on the grant of a use variance for a real estate office. The condition restricted the variance to use by the then- current owner only. Similarly, the courts have held that conditions applied to any land use approval must relate to the legitimate objectives of zoning, and not to matters related solely to the operation of a business. The decision in Matter of Summit School v. Neugent79, is practically a primer on this point. In the Summit School case, a village zoning board of appeals had placed a number of conditions on the grant of a special use permit and a variance to operate a private school for children with learning disabilities. The conditions related to ages of students, months, days and hours of operation of the school, number of students enrolled, teacher-to-student ratio, and degree of supervision of the students. The court struck down all of the conditions, stating: “The power of a board of appeals to impose conditions . . . is not unlimited. The conditions so established must relate directly to, and be incidental to, the proposed use of the real property and not to the manner of the operation of the particular enterprise conducted on the premises . . ---PAGE BREAK--- 21 Procedure by and before the Board Procedure by and before the zoning board of appeals sounds like a topic to curl up with in front of the fireplace, in a comfortable leather armchair, dog at side, pipe and tobacco at hand, on a rainy Sunday afternoon. Procedural matters are rarely the most exciting aspect of anything, whether it is getting a driver's license, buying a house, or getting married. Yet proper procedure is of singular importance in the administration and enforcement of the community's zoning law - that investment in its future development. Quite aside from protecting the board against legal challenges, its adherence to procedural requisites should ensure evenhandedness and due process for all parties. This section surveys the issues most frequently causing problems for zoning boards of appeals, and those who must deal with them. It discusses the problem of proper parties in proceedings before these boards, general procedural matters (including the notice and hearing requirements and how a hearing should be conducted), and what constitutes a proper decision. Who are proper parties before the board? As discussed above, zoning boards of appeals are provided with appellate jurisdiction directly by state statute. This, of course, envisions appeals to the board from decisions of the administrative official charged with enforcement of the zoning. Indeed, the statutes so provide.80 The appeals may be seeking interpretations, use variances or area variances. It should be emphasized that the board of appeals has jurisdiction only over appeals that involve zoning decisions of the enforcement officer. Decisions involving enforcement of the New York State Uniform Fire Prevention and Building Code are not appealed to the local zoning board of appeals. They are instead appealed to the regional Uniform Code Review Board having jurisdiction over the locality. As of July 1, 1994, the statutes have been uniform in limiting boards of appeals to appellate jurisdiction "unless otherwise provided by local law or ordinance." This "unless otherwise provided" language evidences the legislative intent that municipal zoning ordinances and local laws may continue to vest boards of appeals with original jurisdiction over such approvals as special use permits. We are dealing, then, with two types of parties: those who are appealing from decisions made by the enforcement officer (under strict application of the regulations), on the one hand, and those who are seeking a decision by the zoning board of appeals on some matter over which it has original jurisdiction, on the other. An example of the latter would be a person seeking a special use permit where the zoning law assigns the power to issue these to the zoning board of appeals. In this instance, the jurisdiction of the board of appeals is not appellate, and thus the parties would merely be those seeking the permit. In dealing with parties who are filing appeals with the zoning board of appeals, we are concerned with several categories of parties. First, the person who applied to the zoning enforcement officer for a zoning permit and was refused is (or may be) aggrieved by the refusal. Second, the person who was cited for a zoning violation may be aggrieved. Third, the person who lives next door or nearby may be aggrieved by the issuance of a zoning permit to someone else. Since the right to appeal to the ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 73 22 board of appeals does not extend to everyone, it is necessary to understand the concept of the "person aggrieved" who has sufficient standing to be able to properly appeal to the board. The question which presents itself, then, is what is a "person aggrieved?" To find the answer, we must turn to case law, since the statutes do not provide guidance. A good starting point would be Matter of Hilbert v. Haas81, in which an appeal was made to a zoning board of appeals after the refusal of the building inspector to make any decision at all. The court noted that since no decision had been made by the building inspector, the zoning board of appeals had no right to hear and decide any appeal. The first requisite to there being any parties would appear to be a decision by the building inspector. Without that, the appropriate remedy for someone who seeks a decision would have to be an Article 78 mandamus proceeding against the building inspector, and not an appeal to the zoning board of appeals. To examine some cases on this issue, we shall start with a situation directly involving a landowner. Clearly he/she is a party entitled to appeal to a zoning board of appeals if his/her land is substantially affected. This would include the owner of land whose own application for a permit has been denied; his/her interest is direct. There is also authority for extension of this to include a lessee under a long-term lease. In S.S. Kresge Co. v. City of New York82, the lessee had the right to demolish and erect buildings under a lease which had over 30 years to run, and the court said that in such an instance, the lessee " . . . stands in the shoes of, and is entitled to the same rights and privileges as, the owner." Very few cases exist that define persons aggrieved for purposes of appeals to boards of appeals. The great number of cases defining persons aggrieved for purposes of appeals from boards of appeals are, however, of value since the issues are essentially the same. Certainly, if a person is found to be aggrieved so that he may appeal to a court from a zoning board of appeals decision, someone just like him would be entitled to appeal to the board of appeals. The leading case of Sun-Brite Car Wash, Inc. v. Board of Zoning and Appeals of the Town of North Hempstead83 contains a good discussion of standing in the context of appeals to the courts. It provides some help, therefore, in determining who may properly appeal to a board of appeals. The Court of Appeals stated as follows: "While something more than the interest of the public at large is required to entitle a person to seek judicial review - the petitioning party must have a legally cognizable interest that is or will be affected by the zoning determination - proof of special damage or in-fact injury is not required in every instance to establish that the value or enjoyment of one's property is adversely affected . . . it is reasonable to assume that, when the use is changed, a person with property located in the immediate vicinity of the subject property will be adversely affected in a way different from the community at large; loss of value of individual property may be presumed from depreciation of the character of the immediate neighborhood. Thus, an allegation of close proximity alone may give rise to an inference of damage or injury that enables a nearby owner to challenge a zoning board decision without proof of actual injury . . ."84 Now let us examine some of the cases ---PAGE BREAK--- 23 addressing the question of who is a "person aggrieved." The case of Eckerman v. Murdock85 held that a mortgagee has sufficient economic interest to be a "person aggrieved." In the case of Henry Norman Associates, Inc. v. Ketler86 an applicant for a variance had a contract with the owner of the land involved under which he, the prospective purchaser, would be obligated to purchase only if the variance were granted. The court held that the contract vendee (buyer) under this conditional sales contract was a person aggrieved for purposes of appealing to the zoning board of appeals for a variance, and the owner of the land the vendor (seller) under the same contract was a person aggrieved for purposes of appealing from the board of appeals decision to the court. To the same effect is Slater v. Toohill87 in which the court held that the conditional sales contract vendee may be deemed the agent of the owner of the property for which a variance was sought. Moving on, we find that nearby landowners may also be "persons aggrieved" who may appeal from a decision concerning land not their own. In Steers Sand & Gravel Corp. v. Brunn88 nearby residents whose property stood to be materially depreciated in value were held to be "persons aggrieved"89, nearby homeowners were found by the court to be "persons aggrieved" by an application for a permit to build a parking garage because their streets might have been used by overflow parkers when the garage was filled. Nearby tenants may also be aggrieved persons if the contested uses "devaluate living conditions."90 The decision in Matter of Horan v. Board of Appeals91 held that "persons aggrieved" for purposes of appeals to a zoning board of appeals must be liberally construed, and need not stop at adjoining landowners. The court said: “‘Neighboring owners’,‘nearby residents’, as well as ‘closely adjacent owners’ have the status of ‘persons aggrieved' within the spirit and intent of section 179-b of the Village Law [now, section 7-712-a(4)] insofar as it refers to the taking of an appeal to the Board of Zoning Appeals from ‘any order, requirement, decision or determination made by an administrative official charged with the enforcement of any ordinance adopted' pursuant to the Village Law. The spirit and intent of zoning, combined with justice itself, requires that under section 179-b of the Village Law the broadest possible interpretation should be given to the words ‘ such appeal may be taken by any person aggrieved, or by an officer, department, board or bureau of the village’." Neighborhood associations may, in certain instances, have standing as aggrieved party.92 Although the rule is liberal, there is a limit. In Blumberg v. Hill93, residents of a town who lived one and one half miles from a proposed guest house were held not to be persons aggrieved. The court found no special effects of the guest house on the property of the challengers, and stated that the fact that they "particularly advocate zoning principles and stand for the . . . enforcement of zoning ordinances" was of no relevance. The court placed on the term "persons aggrieved" the requirement that there be some special injury or damage to their personal or property rights. And in Village of Russell Gardens v. Board of Zoning and Appeals94, the court stated that even close proximity to the property involved in a variance proceeding was insufficient to make a person aggrieved, unless there were some showing of detrimental effect on the property of those contesting a variance. In addition, one ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 75 24 property owner whose land was nearby, but in an adjoining village, was held to be incapable of an "aggrieved" status simply because the land was in another municipality. The court also applied this reasoning to the adjoining village itself, saying that it had no standing whatever to challenge a variance granted by an adjacent town. In another case on this same point, Matter of Wood v. Freeman95, property owners whose land was located in the town were held not to be aggrieved for purposes of challenging a village board of appeals action, even though the land for which the variance was granted was adjacent to theirs. The neighbor's land was over the village line. Often, a competitor may wish to challenge a proposed action by the zoning board of appeals. Unless she/he can prove some element of damage aside from an increase in competition, she/he will not be an aggrieved person.96 In Cord Meyer Development Co. v. Bell Bay Drugs, Inc.97, the Court of Appeals held that a pharmacist located in a commercial zone could not enjoin another pharmacist a competitor located in a residential zone. The court said: "If the value of the plaintiffs' real property had been reduced, without regard to business competition, for example, by the operation nearby of a junkyard or slaughter house, it might well be that this would constitute such special damage as would entitle plaintiffs to injunctive relief. Even if the violator of the ordinance were conducting a similar business, it may well be, although we are not called upon to decide, that plaintiffs would be entitled to sue to restrain the violation if they could prove that the value of their property was decreased due to some offensive manner in which the business was conducted without relation to any competitive aspect." The same result was reached in the Sun-Brite case, cited above. The rule, then, appears to be that the fact an aggrieved party is a competitor is irrelevant to his being "aggrieved." Can the municipality be aggrieved by the action of its own zoning enforcement officer? The statute permits an appeal to the zoning board of appeals by any officer, department, board or bureau of the municipality. While there are few reported cases in which such an appeal has been taken, the statute is quite clear and is in furtherance of the theory that a municipality would always be "aggrieved" by administration of its zoning law. 98 In Matter of Marshall v. Quinones99, the petitioner brought an Article 78 proceeding to review the grant of a variance. The petitioner was a city alderman who had been authorized, by resolution of the City Common Council, to challenge the zoning board of appeals. The court concluded that the alderman had statutorily provided standing under section 82(1) of the General City Law, both in his own right as an officer of the city, and on behalf of the Common Council.100 As general rule, any person whose legal rights or interests or property would be detrimentally affected by an action taken by the building inspector or zoning enforcement officer is properly an "aggrieved person," no matter how distant his/her property may be, as long as it is within the municipality affected. What happens when someone who is not a "person aggrieved" tries to appeal to the zoning board of appeals? The board has two choices - it can disregard any objection and let him appeal, or it can hold a hearing to determine whether he is a person aggrieved. In Edward A. Lashins, Inc. v. Griffin101, a board of appeals had followed the first course of ---PAGE BREAK--- 25 action. It had assumed jurisdiction over an appeal presented to it. A building permit had been granted, and an adjacent property owner appealed to the zoning board of appeals. The holder of the permit complained to the board that the property owner was not a "person aggrieved." The board of appeals, however, went on to consider the appeal on its merits anyway. The court approved, saying the determination of the board of appeals to entertain the appeal would not be interfered with unless shown to be arbitrary or unreasonable. The rule apparently applies otherwise when a person who wants to appeal is determined by the board not to be a "person aggrieved." The Horan case, supra, concerned an appeal by persons living within 500 feet of premises for which a building permit had been issued. They wished to appeal the issuance of the permit. The board of appeals had asked for written evidence from these persons that would show they were "persons aggrieved." The requested evidence had been submitted, but no hearing was accorded the claimants; the board simply decided against the appellants. The court held this to be improper. It stated that the board's determination, without a hearing, was arbitrary and without legal basis. How an appeal is taken to the board The statutes require all determinations of the zoning enforcement officer to be filed in his or her office within five business days of the day it is rendered. Alternatively, the governing board may adopt a resolution providing that such filing must instead be done in the municipal clerk’s office. The statutes further require that any appeal to the board of appeals must be taken within 60 days after the filing of the determination.102 In cases which arose under the former statutes requiring the board of appeals to establish by rule a time for taking an appeal, there are indications that the courts may permit appeals beyond that time if the person appealing objects within a reasonable time after the decision. The leading case is Pansa v. Damiano, supra, which involved a rule requiring appeals to the zoning board of appeals within 30 days of the decision. The appellant in that case objected to the issuance of a building permit for land adjacent to his. He participated in several meetings with the permit holder, the city planning board and the corporation counsel - all within the 30 day limit. At the last such meeting, he was advised that he would be informed of the decision on the matter. He was informed after the 30 days had expired. He then attempted to appeal to the zoning board of appeals to object to the permit. The board dismissed his appeal as untimely. The Court of Appeals reversed the decision, stating that to strictly interpret the 30-day requirement might in some situations be reasonable, but that on the facts outlined, it was not. The court stated: "Strictly applied, it might prevent any appeal at all since the neighbors might not learn till long afterward of the issuance of a building permit. As applied to an applicant denied a permit the proposed construction might be fair and sensible. But one who demands revocation of a permit issued to another is in no position to appeal or at least should not be required to take his appeal until his demand for revocation has been rejected with some formality and finality. It is the duty of the courts to construe statutes reasonably and so as not to deprive citizens of important rights." The 30 days in this fact situation, the court said, would not begin until the petitioner's objections ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 77 26 had been overruled in a "decision" of which he had notice. The objections, of course, would still have to be put forth in a reasonable time. In Farina v. Zoning Board of Appeals of the City of New Rochelle103, the petitioners filed an appeal of the City’s issuance of a building permit to a neighboring property owner. They filed the appeal within a month of receiving notice that their neighbors had commenced development on the lot in question, but more than 60 days beyond the issuance of the permit. The Appellate Division ruled that the neighbor’s appeal was timely. Citing the Pansa decision, the court stated: “It is settled law, however, that where a party seeks revocation of a building permit issued to another, the prescriptive period should be computed from the date such party received notice that his objections to the permit had been overruled [cite omitted]. We find that the petitioners in this case are not chargeable with knowledge of the issuance of the building permit until March 2000. Thus, the appeal of the issuance of the building permit, taken on March 27, 2000, was timely . . Both the Pansa and the Farina cases involved situations where the building inspector had given a written decision issuing a permit. Both cases spoke of the rights of an aggrieved person to appeal the issuance of a permit. But what about the other side of the coin - the person who applies for a permit and is refused? We have already seen that the time specified for appeal will be strictly construed against that person. But often a denial of the permit will not be in the form of a formal, written decision. What does one do, then, about appealing such a "nondecision" to a zoning board of appeals? In the case of Hunter v. Board of Appeals104 a building inspector told an applicant for a building permit that he could not issue a permit without a variance. The court found this sufficient to constitute a decision from which an appeal could be taken. An appeal must be initiated in the manner prescribed by statute, that is: "by filing with [the officer from whom the appeal is taken] 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 General City Law, section 81-a(5); Town Law, section 267-a(5)and Village Law, section 7- 712(5) are similar. At least one court in New York has interpreted this requirement liberally. In the case of Matter of Lapham v. Roulan105, the city superintendent of buildings rejected an application for a building permit, and then presented this application to the zoning board of appeals, which proceeded to entertain the application as an appeal. Although clearly in violation of the letter of the statute, the court upheld this procedure. It stated that the object of the statutory requirement for a notice of appeal to the officer whose decision is being appealed is so that he may transmit the record to the board of appeals. Because this was accomplished here by the informal procedure, and because neither the superintendent of buildings nor the board of appeals was prejudiced by the procedure, or objected to it, the court upheld the informality. It did note, however, that the local ordinance did not require the formal procedure. Many municipalities supply forms to those who ---PAGE BREAK--- 27 wish to come before the board of appeals. Properly crafted, such forms can serve to guide the petitioner to state clearly what it is she/he wants. There is at least one case, however, which holds that an applicant need not use the official forms for his/her appeal, even if the board of appeals by-laws require him/her to, as long as the proceeding and its object are communicated to the local officials involved.106 It should be noted that an appeal to the zoning board of appeals stays all proceedings in the matter appealed from, except in certain emergency situations. General City Law, section 81-a(6) reads as follows: "An appeal shall stay all proceedings in furtherance of the action appealed from, unless the administrative official charged with the enforcement of such ordinance or 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." The Town Law, section 267-a(6) and Village Law, section 7-712-a(6) contain provisions which are almost identical. Very few reported cases deal with this statutory language, and those that do are less than clear. In Blum v. O'Connor107, the petitioners had filed an appeal to the zoning board of appeals because of the issuance of a building permit to their neighbor. The court interpreted the above statutory language to mean that the status quo was to be maintained pending the appeal. It said this meant that the issuance of the contested building permit was stayed. As a practical matter, this would mean that any construction under the stayed permit would violate the zoning law. And that would mean that the usual legal remedies for enforcing the zoning law would be available. Consistent holdings are found in Linder v. Village of Freeport108. In Linder, a permit had been issued, but the building inspector revoked it some time later, claiming that it had been issued in error. The plaintiff permit holder appealed the revocation to the zoning board of appeals and claimed the right to continue construction during the appeal. The court agreed, saying that what was stayed was the revocation of a permit, since the appeal resulted from the revocation. In a permit had been issued, and the petitioners asked the zoning enforcement officer to revoke it; he refused. The petitioners appealed to the zoning board of appeals over the refusal of their request. The court held that no stay of construction was available. Clearly, these cases are consistent in interpreting a "stay" to mean a return to the status quo as it was before the action appealed was taken. This being so, it is not possible to flatly say that construction under a permit will be allowed to proceed during an appeal. It might be allowed to proceed. It depends on what action is appealed. If it is the issuance of the building permit, then the appeal requires a return to the status quo before the permit was issued. Construction under such circumstances could well violate the zoning ordinance. If the appeal is over revocation of a permit, a return to the status quo before the revocation could mean that construction may continue. ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 79 28 While the interpretation above appears rational, there is one aberration in the cases, Barnathan v. Garden City Park Water Dist.109 That case held that the taking of an appeal against the issuance of a building permit by abutting property owners did not operate as a stay of construction under the statute. No rationale was given for this conclusion, because the case was a memorandum decision. Unless the court meant that the statute does not automatically require a stay of construction in an appeal to a zoning board of appeals, there is no way to reconcile this case with the reasoning of the lower courts. We note that the statutes apply the stay against “all proceedings in furtherance of the action appealed from.” In a recent case, the court held that the stay applies to the issuance of an appearance ticket as well as to administrative enforcement actions such as the issuance of a notice of violation. In People v. Bell Atlantic110, the court held: “The purpose of the stay is to obtain a definitive ruling from the Zoning Board of Appeals before moving to a judicial determination. If, for instance, without a stay, a jury were to find Bell Atlantic guilty of the alleged violations, the Zoning Board of Appeals could later find Bell Atlantic in compliance, thus, in effect, reversing the jury’s decision. The Village should first await the exhaustion of administrative interpretations and then proceed with its case in this Court if the Zoning Board of Appeals sustains the Village’s position.” Referral to a planning agency A board of appeals will often find itself in the position of having to refer certain matters elsewhere for recommendation before making a final decision. General Municipal Law, section 239-m requires that in any city, town or village located in a county which has a county planning agency, or within the jurisdiction of a metropolitan or regional planning council, any board charged with taking certain zoning or planning actions shall – before taking such action – refer them to that county, metropolitan or regional planning agency or council. General City Law, section 81-a(10), Town Law, section 267-a(10) and Village Law, section 7- 712-a(10) all require that such referral must occur at least five days prior to the board of appeals’ public hearing on the proposed action. The matters covered by this section include any variance, site plan or special use permit applying to real property lying within a distance of 500 feet of the boundary of a city, town or village, or from the boundary of any existing or proposed county or state park, or from the right- of-way of any existing or proposed county or state parkway or thruway, expressway or highway, or from the existing or proposed right-of-way of any stream or drainage channel owned by the county, or from county- or state- owned land on which a public building or institution is located, or (except for area variances) from the boundary of a farm operation located in an agricultural district, as defined by Article 25-AA of the Agriculture and Markets Law. (Also covered are zoning regulations or amendments which would change the district classification of real property within such a 500-foot distance.) Matters which only require an interpretation of the local zoning law are, however, exempted from such referral. The referring body and the county (or regional) agency may agree that certain matters are of local concern only and need not be referred to the planning agency.111 The referral requirement is mandatory. In ---PAGE BREAK--- 29 Weinstein v. Nicosia112, the court held that a board of appeals’ failure to follow the provisions of section 239-m creates a jurisdictional defect, because its provisions are a pre- condition to the acquiring of jurisdiction. The board’s failure to follow them therefore renders its decision void. Another case reaching the same conclusion is Asthma v. Curcione113, which involved the issuance by a zoning board of appeals of a special permit. The county, metropolitan or regional planning agency has 30 days to report its recommendation. In the event the planning agency fails to do so, the board of appeals may act without such a report. If the planning agency recommends disapproval or modification, the board of appeals can only act contrary to the recommendation by a vote of a majority plus one of all of its members (not merely of members present) and after the adoption of a resolution fully setting forth the reasons for the contrary action. Failure to comply with the voting requirements in section 239-m could render the local decision invalid if challenged in court. Within seven days after any such final action by the board of appeals, it must file a report of the final action it has taken with the county, metropolitan or regional planning agency. Environmental quality review Any appeal to a board of appeals will require a decision that constitutes an exercise of discretion by the board, thereby invoking application of the State Environmental Quality Review Act, better known as “SEQRA” (Environmental Conservation Law, Article 8) and its implementing regulations, which are found in Title 6, New York Code of Rules and Regulations, Part 617. If the board of appeals is the lead agency, the first SEQRA decision it will have to make, based on review of the Environmental Assessment Form (EAF) is whether to classify the matter before it as a Type I, Type II, or Unlisted action under SEQRA. To guide its decision the board should refer to the lists of actions found in Part 617. Some decisions appear on a predetermined list of types of actions, called Type II Actions, which have already been determined not to have a significant adverse impact on the environment. If the board finds that the matter is Type II, it should document that finding, whereupon its SEQRA function is complete. It should be noted that certain matters that commonly come before a board of appeals are listed as Type II. Among these are interpretations of the zoning regulations, as well as the granting of all setback and lot-line variances, and all area variances for one-, two-, and three-family residences. While there are several other actions on the Type II list that may often come before a board of appeals, many matters, including most use variances, will probably be either Type I or Unlisted Actions, thus requiring the board of appeals to make a “determination of Significance” a decision whether or not to require an environmental impact statement, or EIS). With respect to use variance applications, there is an overlap between the statutory criteria for granting the variance, on the one hand, and the criteria under Part 617 for determining whether to require an EIS. For example, to be granted a use variance the applicant must show, among other factors, that the variance, if granted, will not alter the essential character of the neighborhood. Moreover, in granting the use variance the municipality is directed to preserve and protect the character of the neighborhood and the health, safety and welfare of the ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 81 30 community. Closely akin to the above factors, SEQRA requires the board (if lead agency) to consider community character and aesthetics in making its Determination of Significance. Even where the board decides not to require an EIS – it has issued a “negative determination” – it must nonetheless apply these same factors in its later review of the merits of the application. But if the board decides to require an EIS based in part on the potential impact on neighborhood character, then it will inevitably perform a thorough review of this issue within the EIS process. This should shorten and expedite the board’s eventual review of this same factor during its later application of the statutory variance criteria. Another practical problem is the potential for redundant SEQRA reviews where, once the use variance is granted, the board of appeals must also issue a special use permit. This subsequent review often requires SEQRA review in itself. Thus, there may result needless repetition of the same SEQRA issues that were addressed during the variance application. To avoid such repetition, the board should perform SEQRA review of the entire potential project at an initial stage, and then apply that review to any subsequent permits or approvals that are necessary. Time and notice for the board's hearing All three statutes require a hearing before a board of appeals may grant a variance or rule on an appeal or decide any other matter referred to it under the ordinance or local law.114 The reference to "any other matter" means that, for example, if the board is delegated the power to review and approve site plans, the board must hold a hearing before rendering its decision, even though the site plan statutes themselves do not require a hearing. The notice requirements for a hearing will be considered below. But there is another important procedural detail – the requirement that a board fix "a reasonable time" for the hearing. This means that after an appeal is taken to the board, or an application is submitted for any other approval it has power to grant, the board of appeals must fix a date in the reasonable future for the required hearing. In the case of Blum v. Zoning Board of Appeals115, this statutory requirement was held to mean that the board of appeals as a body must fix the hearing date. Because no formal action of the board set the date for the hearing, the variance which was granted was invalidated. The lesson is that courts will construe this requirement strictly. The board should adopt a formal resolution fixing the date for the hearing on any matter coming before it. Once that is done, the notice of the hearing can be given. Notice of the hearing is also required by the statutes, and this requires particular caution. Notice of the public hearing must be timely, clear and directed to the proper persons. The statutes also require at least five days' notice of the public hearing to be provided to the parties, to the county, metropolitan or regional planning agency pursuant to General Municipal Law, section 239-m (see above) and to the regional state park commission having jurisdiction over any state park or parkway within five hundred feet of the property affected by the appeal.116 A new statute requires zoning boards of appeals, when holding a hearing on the granting of a use variance on property that is within five hundred feet of an adjacent municipality, to give notice to the clerk of the adjacent municipality at least ten days prior to the ---PAGE BREAK--- 31 hearing. The notice may be given by mail or by electronic transmission . Representatives from the adjacent municipality may appear at the hearing and be heard.117 Publication of notice is also required, in a newspaper of general circulation at least five days before the hearing.118 Generally, courts are strict about interpreting these notice requirements. In the case of Briscoe v. Bruenn119, a village ordinance required 10 days' notice of zoning board of appeals hearings. The court invalidated a variance which had been granted after a public hearing which was preceded by seven days' notice; it stated that the requirement was jurisdictional, and failure to give the required notice rendered the board of appeals powerless to proceed. There are, however, cases when courts have made efforts to rationalize late notice, especially if the parties appear and do not claim to be hurt by it. In Gerling v. Board of Appeals120, the newspaper containing the notice of the public hearing on a variance bore a date four days in advance of the hearing. However, the court found that the paper was actually distributed to newsstands for sale to the public the previous afternoon, and found the five-day statutory requirement had been met. This holding would have disposed of the matter, but the court went on to say that a defect in the time of publication of notice was not jurisdictional and was waived by appearance and participation of the petitioners at the hearing. Thus, we have two cases, one which says the time of notice requirement is jurisdictional and one which says it isn't. Obviously, the safest course to follow is to assume that it is jurisdictional and to rigidly adhere to the time period required. What should the notice of the hearing say? While there is no statutory form for it, it should be clear and unambiguous enough so that the general public will know what property is affected by the board's action and what the nature of the hearing will be. Obviously, the notice must also state time and place for the hearing. Conduct of the hearing The purpose of the hearing is to determine the facts involved in the application. Variances may be granted only under certain circumstances, and special use permits may be granted if the requirements of the zoning law are met. The purpose of the hearing is to determine whether the applicant is entitled to what he or she is asking for. While courts generally approve informal hearings, they will not approve a conclusion or a decision for which no evidence appears on a record. In the case of Galvin v. Murphy121, the court, while not disapproving informality, did say that the hearing should be adequate and that all interested persons should be given an opportunity to be heard. Not only was the expression of views by opponents of the special use permit discouraged in the hearing of that case, but there was no evidence shown in a record which would support the board of appeals' determination. The matter was remanded for a new hearing. Without a proper record and evidence to support a board of appeals determination, courts will order a new hearing; in fact, the court may very well use words such as "arbitrary" and "capricious" to describe the faulty board's action being appealed. The important point to remember is that the hearing should concern itself with evidence. This is because courts must have enough information before them to make a reasoned determination in case of appeals. Kenyon v. Quinones122 reaffirms this outlook. ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 83 32 Despite allowing "the greatest amount of latitude in the admission of informal proof," the record still did not substantiate the findings of the board. What about personal knowledge of the area? Board of appeals members are often people who know the community well, and thus cannot really act in the fashion of totally detached persons. Several decisions hold that it is permissible to use personal knowledge as "evidence" to support a board decision, but it must be written down as part of the record. If it is not, and a court finds that it was relied on, it may declare the board's action invalid.123 The same rule applies to personal inspections of the premises by board members; a personal inspection is perfectly all right, but if something learned in such an inspection is relied upon, it should be included in the record. Planning board information, reports and recommendations may also be considered by the board of appeals. Indeed, as a practical matter, they should be evidence of some importance, but they are not determinative. The board of appeals is not bound to follow advice it may receive from a planning board or any other municipal agency. It is the function of the board of zoning appeals to listen to and consider all evidence that may bear upon the issue it is deciding. Cross-examination of witnesses at board of appeals hearings may be done by the board itself, and the parties also have this right. The nature of a board of appeals hearing is such that the right to cross-examination should be limited to relevant points; it is all too easy to permit a hearing to get out of hand and degenerate into a name-calling recrimination session. A leading authority has noted: . . [I]n some jurisdictions, the board is under a duty to permit relevant cross- examination on material issues. Members of a zoning board, at least in small communities, are usually neighbors of parties interested in one side or the other. A natural reluctance to alienate segments of the community renders the decision even more difficult . . . "It takes an experienced, firm and wise chairman to steer the hearing between of an unfair hearing of one kind and the Charibdis of an unfair hearing of the opposite kind." 124 Although the board of appeals is a “quasi- judicial body,” it is nonetheless subject to the state’s Open Meetings Law (Public Officers Law, Article All meetings of the board of appeals must, therefore, be open to the public. This requirement of openness will almost always include all of the board’s discussions and votes.125 This brings up the touchy point of the so-called "executive session" - a closed meeting of the board of appeals. As noted above, the statutes require zoning board of appeals meetings to be open to the public in accordance with the Open Meetings Law. Under the Open Meetings Law, executive sessions may be held only to conduct certain limited types of business126. Otherwise, they must be open to the public.127 As applied to boards of appeals proceedings, this means that no evidence should be received, no witnesses heard, and no decision taken except at a meeting open to the public. Two other points relate to the conduct of hearings. First, witnesses need not be sworn in as they are in a court.128 Second, although a factual record of the testimony is of major importance, it need not be a verbatim transcript. It may instead be in narrative form.129 ---PAGE BREAK--- 33 The Decision Sooner or later, of course, the board will have to render its decision. The statutes now uniformly provide that, the board has 62 days from the conclusion of the hearing on the matter to render its decision.130 This period may, however, be extended by mutual consent of the applicant and the board of appeals. The statutes also require that the board of appeals keep minutes of its meetings, showing the vote of each member on every question, and, if absent or failing to vote, showing those facts.131 The principles which form the basis of the board of appeals’ decision are found in the criteria, discussed above, for making interpretations or for the granting of use or area variances. Where the decision instead involves an exercise of original jurisdiction, the principles will be found in the standards of review contained in the local special use permit, site plan, or other provisions under which the application has been made. However the board arrives at its decision, the decision itself must be supported by findings which constitute “substantial evidence.”132 In other words, findings of fact and/or testimony must be placed on the record which adequately support the decision. It is no exaggeration to say that everything a board of appeals decides is a potential lawsuit. Board of appeals actions are one of the most litigated fields of law. In the event of court review, there will have to be a record, with findings, to enable the court to determine whether the decision was supported by substantial evidence on the record. There are many cases in which the entire matter was remanded to the board of appeals for a redetermination because of an inadequate record; or, even where an adequate record of evidence existed, because there was no statement of the findings of fact which supported the final decision. In the case of Gill v. O'Neil133, a zoning board of appeals granted a variance merely by adopting a resolution. No factual findings were made, nor was a reason for its action given. The court stated that the absence of findings prevented an intelligent review of the board's determination, and sent back the matter for reconsideration and proper findings. A decision, of course, would be worded something like “stop-work order affirmed,” "variance granted" or "special use permit denied." Findings would have to contain reasons for the decision. But a mere restatement of the statutory or ordinance requirements will not constitute findings sufficient for court review. Thus, when a board of appeals granted a variance and supported its decision with "findings" that "adequate parking facilities were available within certain specified distances from the site" and "if the variance were denied it would involve great practical difficulties and unnecessary hardship" the court in Gilbert v. Stevens found these were not sufficient.134 The court wanted to know why these requirements had been satisfied, and not only that they had been satisfied. The court said: "Findings of fact which show the actual grounds of a decision are necessary for an intelligent judicial review of a quasi- judicial or administrative determination . . . There is nothing in the record upon which to base a determination that adequate and existing parking areas are available . . ."135 What were really stated in the Gilbert case were the conclusions of the board of appeals. These are perfectly all right as long as the decision also includes findings of fact - from the evidence which appears on the record - to support its conclusions. The evidence relied upon should be specifically stated. ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 85 34 In a use variance case, for example, the findings of fact may well focus on whether or not the applicant has presented sufficient “dollars and cents” proof of his hardship. (See the discussion of use variances, supra.) As was stated above in the context of interpretations, the courts have held that a board of appeals should follow its own prior precedent. How does this work when the matter instead involves a variance, special use permit, or other form of project approval? Does it mean that if the board grants a variance to one owner to, say, build a hardware store in a residentially-zoned district, that it must thereafter grant similar permission to any other owner in that district who asks for the same relief? No, it does not mean that at all. Unlike interpretations, where the only question involves the uniform application of the words of the zoning law, variances and use permits instead concern the appropriateness of project proposals on particular parcels of land, each having their own unique characteristics. Thus, the facts of each case will differ from those of all others. The impact of the holding in Knight v. Amelkin, supra, as applied to variances and special use permits, should be such that the board apply a generally consistent approach to its consideration of the standards as they apply to the facts of each case, not that all results will be identical. Where the board of appeals is exercising original jurisdiction (for example, on approving a special use permit), the final decision must be supported by an affirmative vote of a majority of the members of the board.136 Thus, a simple majority of those voting on the question won't suffice. For example, if there is a five-member board, three must agree in order to reach a decision; a vote of two out of three members present is not sufficient. This requirement applies both to approvals and disapprovals: an absolute majority must favor the action taken. Where the matter instead involves an appeal, the rule is different, as governed by a revision to the statutes that took effect in 2003. The State Legislature made this revision in response to the decision of the Court of Appeals in Tall Trees Construction Corp. v. Zoning Board of Appeals of the Town of Huntington.137 The statutes138 now uniformly provide that an affirmative vote of a majority of the full membership of the board of appeals--counting vacancies, absences and abstentions--is necessary on a motion to reverse a determination of the enforcement officer or to grant a variance. What if the board, upon conclusion of the original hearing of an appeal, conducts a vote that fails to result in a majority in favor of granting the applicant the relief requested? This will of course result in a default denial. But the statutes also provide that the board may amend the failed motion and vote on the amendment, within the 62-day period after the close of the public hearing. This will not require the board to follow the statutory rehearing process, described below.139 Rehearing The statutes140 provide for the rehearing of a matter upon which the board of appeals has once made a decision. The rehearing may only occur following the unanimous vote of those members present. Where such a unanimous vote occurs, the board would then rehear the case in its entirety and make a new decision. In order to effectively change its original decision, another unanimous vote of those members then present is required. In addition (and regardless of a unanimous concurring vote), no new decision of the board may be made if the board finds that it would prejudice the rights of any persons who acted in good faith reliance on the original decision. ---PAGE BREAK--- 35 Filing the Decision The statutes141 provide that every rule, regulation, every amendment or repeal thereof and every order, requirement, decision, or determination of the board shall be filed in the office of the municipal clerk within five business days after the day it is rendered (a copy must also be mailed to the applicant). These filing requirements are of major importance as a practical matter, because the 30-day period to appeal a board of appeals decision to the courts begins to run from the date of the filing of the board's decision.142 Conclusion Too often, the procedure by and before the zoning board of appeals is informal to a point where its actions may be invalid. Procedural matters are inherently dull. But there is a reason for them - and courts will uphold them. Informality is fine, up to a point, but board of appeals actions affect the property rights of individuals, and the procedural requirements of the statutes are meant to protect these rights as well as the welfare of the community. It is hoped that the procedures noted herein, as well as the substantive rules governing both interpretations and variances, will be of assistance to boards of appeals throughout the State of New York. ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 87 36 1. Salkin, New York Zoning Law and Practice, 4th Ed., §27.08. 2. Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). 3. People v. Kerner, 125 Misc. 526, 533 (Sup. Ct., Oneida Co., 1925. 4. Otto v. Steinhilber, 282 N.Y. 71 (1939). 5. People v. Walsh, 244 N.Y. 280, 290 (1927). 6. General City Law, section 81(1), Town Law, section 267(2) and Village Law, section 7-712(2). 7. Town Law, section 267(7));General City Law, section 81. 8. General City Law, section 81(4); Town Law, section 267(5); Village Law, section 7- 712(5). 9. General City Law, section 81(1). 10. Town Law, section 267(2). 11. Village Law, section 7-712(2). 12. General City Law, section 81(2), Town Law, section 267(3), and Village Law, section 7-712(3). 13. General City Law section 81(11), Town Law section 267(11), Village Law section 7- 712(11). 14. See Op. Atty. Gen. (Inf.) No. 86-20. 15. General City Law section 81(1), Town Law section 267(2), Village Law section 7- 712(2). 16. Kaufman v. City of Glen Cove, 180 Misc. 349 (Sup. Ct., Nassau Co., 1943), aff’d 266 A.D. 870 (2d Dept., 1943). 17. See Kaufman, supra. 18. Scott v. Quittmeyer, 200 N.Y.S.2d 886 (Sup. Ct., Nassau Co., 1960); Balsam v. Jagger, 231 N.Y.S.2d 450 (Sup. Ct., Suffolk Co., 1962); Plotinsky v. Gardner, 27 Misc.2d 681 (Sup. Ct., Westchester Co., 1960); Von Elm v. Zoning Board of Appeals of Incorporated Village of Hempstead, 258 A.D. 989 (2nd Dept., 1940). ENDNOTES ---PAGE BREAK--- 37 19. General City Law sections 27-a(3), 27-b(3) and 33(6); Town Law sections 274-a(3), 274-b(3) and 277(6); Village Law sections 7-725-a(3), 7-725-b(3) and 7-730(6). 20. See Cerame v. Town of Perinton, 6 A.D. 3d 1091 (4th Dept., 2004). 21. General City Law section 81-b(2), Town Law section 267-b(1), and Village Law section 7-712-b(1). 22. Schmitt v. Plonski, 215 N.Y.S.2d 170 (Sup. Ct., Suffolk Co., 1961). 23. Levy v. Board of Standards and Appeals, 267 N.Y. 347 (1935). 24. Op. St. Comptr. 65-770. 25. Cherry v. Brumbaugh, 255 A.D. 880 (2nd Dept., 1938). 26. See Cohen v. Board of Appeals of the Village of Saddle Rock, 100 N.Y.2d 395 (2003), discussed at length infra. 27. General City Law section 81-a(4), Town Law section 267-a(4), and Village Law section 7-712-a(4). 28. General City Law section 81-b(2), Town Law section 267-b(1), and Village Law, section 7-712-b(1). 29. See Kaufman, supra. 30. Hinna v. Board of Appeals, 11 Misc.2d 349 (Sup. Ct., Nassau Co., 1957). 31. Matter of Levine v. Buxenbaum, 19 Misc.2d 504 (Sup. Ct., Nassau Co., 1959). 32. Anagnos v. Lesica, 134 A.D.2d 425 (2nd Dept., 1987). 33. Pansa v. Damiano, 14 N.Y.2d 356 (1964). 34. See Knight v. Amelkin, 68 N.Y.2d 975 (1986). 35. See Androme Leather v. City of Gloversville, 1 A.D.3d 654 (3rd Dept., 2003). 36. See St. Onge v. Donovan, 71 N.Y.2d 507, 527 N.Y.S.2d 721 (1988). 37. Salkin, supra, §29.05. 38. General City Law section 81(b)(1)(a), Town Law section 267(1), and Village Law section 7-712(1). 39. See Otto v. Steinhilber, supra. ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 89 38 40. General City Law, section 81-b(3)(b), Town Law, section 267-b(2)(b) and Village Law, section 7-712-b(2)(b). 41. General City Law section 81-b(3)(b), Town Law section 267-b(2)(b), and Village Law section 7-712-b(2)(b). 42. Crossroads Recreation v. Broz, 4 N.Y.2d 39 (1958). 43. Goldstein v. Board of Appeals of Oyster Bay, 102 N.Y.S.2d 922 (Sup. Ct., Nassau Co., 1951). 44. Rochester Transit Corp. v. Crowley, 205 Misc. 933 (Sup. Ct., Monroe Co., 1954), citing Young Women's Hebrew Association v. Board of Standards and Appeals , supra; Thomas v. Board of Standards and Appeals of City of New York, 290 N.Y. 109 (1943). 45. Everhart v. Johnston, 30 A.D.2d 608 (3rd Dept., 1968). 46. Fayetteville v. Jarrold, 53 N.Y.2d 254 (1981). 47. Crossroads Recreation v. Broz, 44). 48. General City Law section 81-b(3)(b), Town Law section 267-b(2)(b), and Village Law section 7-712-b(2)(b). 49. Rathkopf, The Law of Zoning and Planning, §58:11. 50. Arverne Bay Construction Co. v. Thatcher, 278 N.Y. 222 (1938). 51. Hickox v. Griffin, 298 N.Y. 365 (1949). 52. Douglaston Civic Association, Inc. v. Klein, 51 N.Y.2d 963 (1980). 53. Congregation Beth El of Rochester v. Crowley, 30 Misc.2d 90, 217 N.Y.S.2d 937 (Sup. Ct., Monroe Co., 1961). 54. General City Law section 81-b(3)(b), Town Law section 267-b(2)(b), and Village Law section 7-712-b(2)(b). 55. Holy Sepulchre Cemetery ,271 A.D. 33 (4th Dept., 1946). 56. Rochester Transit Corp. v. Crowley, supra. 57. Matter of Style Rite Homes, Inc. v. Zoning Board of Appeals of the Town of Chili, 54 Misc.2d 866 (Sup. Ct., Monroe Co., 1967). 58. See Congregation Beth El of Rochester v. Crowley, supra. ---PAGE BREAK--- 39 59. General City Law section 81-b(3)(b), Town Law section 267-b(2)(b), and Village Law, section 7-712-b(2)(b). 60. Carriage Works Enterprises, Ltd. v. Siegel, 118 A.D.2d 568, 499 N.Y.S.2d 439 (2nd Dept., 1986). 61. Clark v. Board of Zoning Appeals, 301 N.Y. 86 (1950). 62. For similar holdings see Holy Sepulchre Cemetery v. Board of Appeals, supra; Thomas v. Board of Standards and Appeals supra; Everhart v. Johnston, supra; Henry Steers, Inc. v. Rembaugh, 284 N.Y. 621 (1940). 63. General City Law section 81-b(1)(b), Town Law section 267(1)(b), and Village Law section 7-712(1)(b). 64. General City Law section 81-b(4), Town Law section 267-b(3), Village Law section 7- 712-b(3). 65. Pecoraro v. Board of Appeals of the Town of Hempstead, 2 N.Y.3d 608, 781 N.Y.S.2d 234 (2004). 66. See Chandler Property, Inc. v. Trotta, 9 A.D.3d 408, 780 N.Y.S.2d 163 (2nd Dept., 2004). 67. Heitzman v. Town of Lake George Zoning Board of Appeals, 309 A.D.2d 1126, 766 N.Y.S.2d 452 (3rd Dept., 2003). 68. See Coco v. City of Rochester Zoning Board of Appeals, 236 A.D.2d 826, 653 N.Y.S.2d 769 (4th Dept., 1997). 69. See Casey v. Goehringer, N.Y.L.J., March 27, 2002 (Sup. Ct., Suffolk Co., 2002). 70. See Casey, supra. 71. Sasso v. Osgood, 86 N.Y.2d 395 (1995). 72. Cohen v. Board of Appeals of the Village of Saddle Rock, 100 N.Y.2d 395 (2003). 73. General City Law section 81-b(3)(c) and Town Law section 267-b(3)(c), and Village Law section 7-712-b(3)(c). 74. Nardone v. Zoning Board of Appeals of the Town of Lloyd, 144 A.D.2d 807, 534 N.Y.S.2d 771 (3rd Dept., 1988). 75. General City Law section 81-b(5), Town Law section 267-b(4), and Village Law section 7-712-b(4). ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 91 40 76. See Hopkins v. Board of Appeals of City of Rochester, 179 Misc. 325, 39 N.Y.S.2d 167 (Sup. Ct., Monroe Co., 1942). 77. Gordon v. Zoning Board of Appeals of the Town of Clarkstown, 126 Misc.2d 75, 481 N.Y.S.2d 275 (Sup. Ct., Rockland Co., 1984). 78. St. Onge v. Donovan, 71 N.Y.2d 507, 527 N.Y.S.2d 721 (1988). 79. Matter of Summit School v. Neugent, 82 A.D.2d 463, 442 N.Y.S.2d 73 (2nd Dept., 1981). 80. General City Law section 81-b(2), and Town Law section 267-b(1), and Village Law section 7-712-b(1), and 81. Matter of Hilbert v. Haas, 54 Misc.2d 777 (Sup. Ct., Suffolk Co., 1967). 82. S.S. Kresge Co. v. City of New York, 194 Misc. 645 (Sup. Ct., New York Co., 1949), aff’d 275 A.D. 1036 (1st Dept., 1949). 83. Sun-Brite Car Wash, Inc. v. Board of Zoning and Appeals of the Town of North Hempstead, 69 N.Y.2d 406 (1987). 84. Sun-Brite Car Wash, Inc. v. Board of Zoning and Appeals of the Town of North Hempstead ,69 N.Y.2d 406, 413-414. 85. Eckerman v. Murdock , 276 A.D. 927 (2nd Dept., 1950). 86. Henry Norman Associates, Inc. v. Ketler, 16 Misc. 2d 764 (Sup. Ct., Nassau Co., 1959). 87. Slater v. Toohill ,276 A.D. 850 (2nd Dept., 1949). 88. Steers Sand & Gravel Corp. v. Brunn, 116 N.Y.S.2d 879 (Sup. Ct., Suffolk Co., 1952). 89. See also Mueller v. Anderson, ( 60 Misc. 2d 568 (Sup. Ct., Monroe Co., 1969)). In Matter of Bettman v. Michaelis, 27 Misc.2d 1010 (Sup. Ct., Nassau Co., 1961). 90. Lavere v. Board of Zoning Appeals (39 A.D.2d 639 (4th Dept., 1972), aff’d 33 N.Y. 2d 873 (1973). 91. Matter of Horan v. Board of Appeals, 6 Misc.2d 571 (Sup. Ct., Westchester Co., 1957). 92. See Douglaston Civic Association, Inc. v. Klein, supra. 93. 119 N.Y.S.2d 855 (Sup. Ct., Westchester Co., 1953). 94. Village of Russell Gardens v. Board of Zoning and Appeals, 30 Misc.2d 392 (Sup. Ct., Nassau Co., 1961). ---PAGE BREAK--- 41 95. Matter of Wood v. Freeman, 43 Misc.2d 616 (Sup. Ct., Nassau Co., 1964), aff'd 24 A.D.2d 704(2nd Dept., 1965). 96. Sun-Brite Car Wash, Inc. v. Board of Zoning and Appeals of the Town of North Hempstead supra; Paolangeli v. Stevens, 19 A.D.2d 763 (3rd Dept., 1963). 97. Cord Meyer Development Co. v. Bell Bay Drugs, Inc., 20 N.Y.2d 211 (1967). 98. See Bowman v. Squillace, 74 A.D. 2d 887 (2d Dept., 1980), but see Gaylord Disposal Svce., Inc. v. Zoning Bd. of Appeals, 175 A.D. 2d 543 (3d Dept., 1991), which held that a building inspector was not an official “aggrieved” by his own decision. 99. Matter of Marshall v. Quinones, 43 A.D.2d 436 (4th Dept., 1974). 100. See also Innet v. Liberman, 155 N.Y.S.2d 383 (Sup. Ct., Westchester Co., 1956). 101. Edward A. Lashins, Inc. v. Griffin, 132 N.Y.S.2d 896 (Sup. Ct., Westchester Co., 1954). 102. General City Law, section 81-a(5); Town Law, section 267-a(5); Village Law, section 7-712-a(5). 103. Farina v. Zoning Board of Appeals of the City of New Rochelle, 294 A.D. 2d 499 (2d Dept., 2002). 104. Hunter v. Board of Appeals, 4 A.D.2d 961 (2nd Dept., 1957). 105. Matter of Lapham v. Roulan, 10 Misc.2d 152 (Sup. Ct., Ontario Co., 1957). 106. Highway Displays, Inc. v. Zoning Board of Appeals of the Town of Wappinger, 32 A. D.2d 668. 107. Blum v. O'Connor, 6 Misc.2d 641 (Sup. Ct., Nassau Co., 1957). 108. Linder v. Village of Freeport, 61 Misc.2d 667 (Sup. Ct., Nassau Co., 1969), and v. Long Is. R.R. Co., 41 Misc.2d 24 (Sup. Ct., Queens Co., 1963). 109. Barnathan v. Garden City Park. Water Dist., 21 A.D.2d 832, 251 N.Y.S.2d 706 (2nd Dept., 1964). 110. People v. Bell Atlantic, 183 Misc. 2d 61 (Justice Ct., Vil. of Tuckahoe, 2000). 111. General Municipal Law, section 239-m(3)(c). 112. Weinstein v. Nicosia, 32 Misc. 2d 246 (Sup. Ct., Erie Co., 1962), aff'd 18 A.D.2d 881 (4th Dept., 1963). 113. Asthma v. Curcione, 31 A.D.2d 883 (4th Dept., 1969). ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 93 42 114. General City Law section 81-a(7), Town Law section 267-a(7), and Village Law section 7-712-a(7). 115. Blum v. Zoning Board of Appeals, 1 Misc.2d 668 (Sup. Ct., Nassau Co., 1956). 116. General City Law section 81-a(10), Town Law section 267-a(10), and Village Law section 7-712-a(10). 117. Chapter 687 of the Laws of 2005, effective July 1, 2006. An “adjacent municipality” is a city, except a city having a population in excess of one million, town or village which has a portion of its boundary that is contiguous with another municipality. 118. Town Law section 267-a(7), Village Law section 7-712-a(7), and General City Law section 81-a(7), effective July 1, 1994. 119. Briscoe v. Bruenn, 216 N.Y.S.2d 799 (Sup. Ct., Westchester Co., 1961). 120. Gerling v. Board of Appeals, 11 Misc.2d 84 (Sup. Ct., Onondaga Co., 1957). 121. Galvin v. Murphy, 11 A.D.2d 900 (4th Dept., 1960). 122. Kenyon v. Quinones, 43 A.D.2d 125 (4th Dept., 19730). 123. Galvin v. Murphy, supra; Community Synagogue v. Bates, 1 N.Y.2d 445 (1956). 124. Rathkopf, supra, §57:65. 125. General City Law section 81-a(1), Town Law section 267-a(1), and Village Law section 7-712-a(1). 126. Public Officers Law, section 105. 127. Public Officers Law, section 103(a). 128. VonKohorn v. Morrell, 9 N.Y.2d 27 (1961); People ex rel. Fordham Manor Reformed Church v. Walsh, supra. 129. Hunter v. Board of Appeals, supra; Kenyon v. Quinones, supra. 130. General City Law section 81-a(8), Town Law section 267-a(8), and Village Law section 7-712-a(8). 131. General City Law section 81-a(1), Town Law section 267-a(1), and Village Law section 7-712-a(1). 132. See Soho Alliance v. N.Y. City Board of Standards & Appeals, 95 N.Y.2d 437 (2000). 133. Gill v. O'Neil, 21 A.D.2d 718 (3rd Dept., 1964). ---PAGE BREAK--- 43 134. Gilbert v. Stevens, 284 A.D. 1016 (3rd Dept., 1954). 135. See also Cohalan v. Schermerhorn, 77 Misc.2d 23 (Sup. Ct., Suffolk Co., 1973); 215 East 72nd Street Corp. v. Klein, 58 A.D.2d 751 1st Dept., 1977. 136. General City Law section 81-a(13), Town Law section 267-a(13), and Village Law section 7-712-a(13). 137. Tall Trees Construction Corp. v. Zoning Board of Appeals of the Town of Huntington, 97 N.Y.2d 86 (2001). 138. General City Law section 81-a(13), Town Law section 267-a(13), and Village Law section 7-712-a(13). 139. General City Law section 81-a(13)(b), Town Law section 267-a(13)(b), and Village Law section 7-712-a(13)(b). 140. General City Law section 81-a(12), Town Law section 267-a(12), and Village Law section 7-712-a(12). 141. General City Law section 81-a Town Law section 267-a(2), and Village Law section 7-712-a(2). 142. See General City Law section 81-a(9), Town Law section 267-a(9), Village Law section 7-712-a(9). ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 95 617.20 Appendix C State Environmental Quality Review SHORT ENVIRONMENTAL ASSESSMENT FORM For UNLISTED ACTIONS Only PART I - PROJECT INFORMATION (To be completed by Applicant or Project Sponsor) 1. APPLICANT/SPONSOR 2. PROJECT NAME 3. PROJECT LOCATION: Municipality County 4. PRECISE LOCATION (Street address and road intersections, prominent landmarks, etc., or provide map) 5. PROPOSED ACTION IS: New Expansion Modification/alteration 6. DESCRIBE PROJECT BRIEFLY: 7. AMOUNT OF LAND AFFECTED: Initially acres Ultimately acres 8. WILL PROPOSED ACTION COMPLY WITH EXISTING ZONING OR OTHER EXISTING LAND USE RESTRICTIONS? Yes No If No, describe briefly 9. WHAT IS PRESENT LAND USE IN VICINITY OF PROJECT? Residential Industrial Commercial Agriculture Park/Forest/Open Space Other Describe: 10. DOES ACTION INVOLVE A PERMIT APPROVAL, OR FUNDING, NOW OR ULTIMATELY FROM ANY OTHER GOVERNMENTAL AGENCY (FEDERAL, STATE OR LOCAL)? Yes No If Yes, list agency(s) name and permit/approvals: 11. DOES ANY ASPECT OF THE ACTION HAVE A CURRENTLY VALID PERMIT OR APPROVAL? Yes No If Yes, list agency(s) name and permit/approvals: 12. AS A RESULT OF PROPOSED ACTION WILL EXISTING PERMIT/APPROVAL REQUIRE MODIFICATION? Yes No I CERTIFY THAT THE INFORMATION PROVIDED ABOVE IS TRUE TO THE BEST OF MY KNOWLEDGE Applicant/sponsor name: Date: Signature: If the action is in the Coastal Area, and you are a state agency, complete the Coastal Assessment Form before proceeding with this assessment OVER 1 Reset ---PAGE BREAK--- PART II - IMPACT ASSESSMENT (To be completed by Lead Agency) A. DOES ACTION EXCEED ANY TYPE I THRESHOLD IN 6 PART 617.4? If yes, coordinate the review process and use the FULL EAF. Yes No B. WILL ACTION RECEIVE COORDINATED REVIEW AS PROVIDED FOR UNLISTED ACTIONS IN 6 PART 617.6? If No, a negative declaration may be superseded by another involved agency. Yes No C. COULD ACTION RESULT IN ANY ADVERSE EFFECTS ASSOCIATED WITH THE FOLLOWING: (Answers may be handwritten, if legible) C1. Existing air quality, surface or groundwater quality or quantity, noise levels, existing traffic pattern, solid waste production or disposal, potential for erosion, drainage or flooding problems? Explain briefly: C2. Aesthetic, agricultural, archaeological, historic, or other natural or cultural resources; or community or neighborhood character? Explain briefly: C3. Vegetation or fauna, fish, shellfish or wildlife species, significant habitats, or threatened or endangered species? Explain briefly: C4. A community’s existing plans or goals as officially adopted, or a change in use or intensity of use of land or other natural resources? Explain briefly: C5. Growth, subsequent development, or related activities likely to be induced by the proposed action? Explain briefly: C6. Long term, short term, cumulative, or other effects not identified in C1-C5? Explain briefly: C7. Other impacts (including changes in use of either quantity or type of energy)? Explain briefly: D. WILL THE PROJECT HAVE AN IMPACT ON THE ENVIRONMENTAL CHARACTERISTICS THAT CAUSED THE ESTABLISHMENT OF A CRITICAL ENVIRONMENTAL AREA (CEA)? Yes No If Yes, explain briefly: E. IS THERE, OR IS THERE LIKELY TO BE, CONTROVERSY RELATED TO POTENTIAL ADVERSE ENVIRONMENTAL IMPACTS? Yes No If Yes, explain briefly: PART III - DETERMINATION OF SIGNIFICANCE (To be completed by Agency) INSTRUCTIONS: For each adverse effect identified above, determine whether it is substantial, large, important or otherwise significant. Each effect should be assessed in connection with its setting (i.e. urban or rural); probability of occurring; duration; irreversibility; geographic scope; and magnitude. If necessary, add attachments or reference supporting materials. Ensure that explanations contain sufficient detail to show that all relevant adverse impacts have been identified and adequately addressed. If question D of Part II was checked yes, the determination of significance must evaluate the potential impact of the proposed action on the environmental characteristics of the CEA. Check this box if you have identified one or more potentially large or significant adverse impacts which MAY occur. Then proceed directly to the FULL EAF and/or prepare a positive declaration. Check this box if you have determined, based on the information and analysis above and any supporting documentation, that the proposed action WILL NOT result in any significant adverse environmental impacts AND provide, on attachments as necessary, the reasons supporting this determination. Name of Lead Agency Date Print or Type Name of Responsible Officer in Lead Agency Title of Responsible Officer Signature of Responsible Officer in Lead Agency Signature of Preparer (If different from responsible officer) Reset ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 97 617.20 Appendix A State Environmental Quality Review FULL ENVIRONMENTAL ASSESSMENT FORM Purpose: The full EAF is designed to help applicants and agencies determine, in an orderly manner, whether a project or action may be significant. The question of whether an action may be significant is not always easy to answer. Frequently, there are aspects of a project that are subjective or unmeasurable. It is also understood that those who determine significance may have little or no formal knowledge of the environment or may not be technically expert in environmental analysis. In addition, many who have knowledge in one particular area may not be aware of the broader concerns affecting the question of significance. The full EAF is intended to provide a method whereby applicants and agencies can be assured that the determination process has been orderly, comprehensive in nature, yet flexible enough to allow introduction of information to fit a project or action. Full EAF Components: The full EAF is comprised of three parts: Part 1: Provides objective data and information about a given project and its site. By identifying basic project data, it assists a reviewer in the analysis that takes place in Parts 2 and 3. Part 2: Focuses on identifying the range of possible impacts that may occur from a project or action. It provides guidance as to whether an impact is likely to be considered small to moderate or whether it is a potentially-large impact. The form also identifies whether an impact can be mitigated or reduced. Part 3: If any impact in Part 2 is identified as potentially-large, then Part 3 is used to evaluate whether or not the impact is actually important. THIS AREA FOR LEAD AGENCY USE ONLY DETERMINATION OF SIGNIFICANCE Type 1 and Unlisted Actions Identify the Portions of EAF completed for this project: Part 1 Part 2 Part 3 Upon review of the information recorded on this EAF (Parts 1 and 2 and 3 if appropriate), and any other supporting information, and considering both the magnitude and importance of each impact, it is reasonably determined by the lead agency that: A. The project will not result in any large and important impact(s) and, therefore, is one which will not have a significant impact on the environment, therefore a negative declaration will be prepared. B. Although the project could have a significant effect on the environment, there will not be a significant effect for this Unlisted Action because the mitigation measures described in PART 3 have been required, therefore a CONDITIONED negative declaration will be prepared.* C. The project may result in one or more large and important impacts that may have a significant impact on the environment, therefore a positive declaration will be prepared. *A Conditioned Negative Declaration is only valid for Unlisted Actions Name of Action Name of Lead Agency Print or Type Name of Responsible Officer in Lead Agency Title of Responsible Officer Signature of Responsible Officer in Lead Agency Signature of Preparer (If different from responsible officer) website Date Reset Page 1 of 21 ---PAGE BREAK--- PART 1--PROJECT INFORMATION Prepared by Project Sponsor NOTICE: This document is designed to assist in determining whether the action proposed may have a significant effect on the environment. Please complete the entire form, Parts A through E. Answers to these questions will be considered as part of the application for approval and may be subject to further verification and public review. Provide any additional information you believe will be needed to complete Parts 2 and 3. It is expected that completion of the full EAF will be dependent on information currently available and will not involve new studies, research or investigation. If information requiring such additional work is unavailable, so indicate and specify each instance. Name of Action Location of Action (include Street Address, Municipality and County) Name of Applicant/Sponsor Address City / PO State Zip Code Business Telephone Name of Owner (if different) Address City / PO State Zip Code Business Telephone Description of Action: Reset Page 2 of 21 ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 99 Please Complete Each Question--Indicate N.A. if not applicable A. SITE DESCRIPTION Physical setting of overall project, both developed and undeveloped areas. 1. Present Land Use: Urban Industrial Commercial Residential (suburban) Rural (non-farm) Forest Agriculture Other 2. Total acreage of project area: acres. APPROXIMATE ACREAGE PRESENTLY AFTER COMPLETION Meadow or Brushland (Non-agricultural) acres acres Forested acres acres Agricultural (Includes orchards, cropland, pasture, etc.) acres acres Wetland (Freshwater or tidal as per Articles 24,25 of ECL) acres acres Water Surface Area acres acres Unvegetated (Rock, earth or fill) acres acres Roads, buildings and other paved surfaces acres acres Other (Indicate type) acres acres 3. What is predominant soil type(s) on project site? a. Soil drainage: Well drained % of site Moderately well drained % of site. Poorly drained % of site b. If any agricultural land is involved, how many acres of soil are classified within soil group 1 through 4 of the NYS Land Classification System? acres (see 1 370). 4. Are there bedrock outcroppings on project site? Yes No a. What is depth to bedrock (in feet) 5. Approximate percentage of proposed project site with slopes: 0-10% % 10- 15% % 15% or greater % 6. Is project substantially contiguous to, or contain a building, site, or district, listed on the State or National Registers of Historic Places? Yes No 7. Is project substantially contiguous to a site listed on the Register of National Natural Landmarks? Yes No 8. What is the depth of the water table? (in feet) 9. Is site located over a primary, principal, or sole source aquifer? Yes No 10. Do hunting, fishing or shell fishing opportunities presently exist in the project area? Yes No Reset Page 3 of 21 ---PAGE BREAK--- 11. Does project site contain any species of plant or animal life that is identified as threatened or endangered? Yes No According to: Identify each species: 12. Are there any unique or unusual land forms on the project site? cliffs, dunes, other geological formations? Yes No Describe: 13. Is the project site presently used by the community or neighborhood as an open space or recreation area? Yes No If yes, explain: 14. Does the present site include scenic views known to be important to the community? Yes No 15. Streams within or contiguous to project area: a. Name of Stream and name of River to which it is tributary 16. Lakes, ponds, wetland areas within or contiguous to project area: b. Size (in acres): ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 101 17. Is the site served by existing public utilities? Yes No a. If YES, does sufficient capacity exist to allow connection? Yes No b. If YES, will improvements be necessary to allow connection? Yes No 18. Is the site located in an agricultural district certified pursuant to Agriculture and Markets Law, Article 25-AA, Section 303 and 304? Yes No 19. Is the site located in or substantially contiguous to a Critical Environmental Area designated pursuant to Article 8 of the ECL, and 6 617? Yes No 20. Has the site ever been used for the disposal of solid or hazardous wastes? Yes No B. Project Description 1. Physical dimensions and scale of project (fill in dimensions as appropriate). a. Total contiguous acreage owned or controlled by project sponsor: acres. b. Project acreage to be developed: acres initially; acres ultimately. c. Project acreage to remain undeveloped: acres. d. Length of project, in miles: (if appropriate) e. If the project is an expansion, indicate percent of expansion proposed. % f. Number of off-street parking spaces existing ; proposed g. Maximum vehicular trips generated per hour: (upon completion of project)? h. If residential: Number and type of housing units: One Family Two Family Multiple Family Condominium Initially Ultimately i. Dimensions (in feet) of largest proposed structure: height; width; length. j. Linear feet of frontage along a public thoroughfare project will occupy is? ft. 2. How much natural material (i.e. rock, earth, etc.) will be removed from the site? tons/cubic yards. 3. Will disturbed areas be reclaimed Yes No N/A a. If yes, for what intended purpose is the site being reclaimed? b. Will topsoil be stockpiled for reclamation? Yes No c. Will upper subsoil be stockpiled for reclamation? Yes No 4. How many acres of vegetation (trees, shrubs, ground covers) will be removed from site? acres. Reset Page 5 of 21 ---PAGE BREAK--- 5. Will any mature forest (over 100 years old) or other locally-important vegetation be removed by this project? Yes No 6. If single phase project: Anticipated period of construction: months, (including demolition) 7. If multi-phased: a. Total number of phases anticipated (number) b. Anticipated date of commencement phase 1: month year, (including demolition) c. Approximate completion date of final phase: month year. d. Is phase 1 functionally dependent on subsequent phases? Yes No 8. Will blasting occur during construction ? Yes No 9. Number of jobs generated: during construction ; after project is complete 10. Number of jobs eliminated by this project . 11. Will project require relocation of any projects or facilities? Yes No If yes, explain: 12. Is surface liquid waste disposal involved? Yes No a. If yes, indicate type of waste (sewage, industrial, etc) and amount b. Name of water body into which effluent will be discharged 13. Is subsurface liquid waste disposal involved? Yes No Type 14. Will surface area of an existing water body increase or decrease by proposal? Yes No If yes, explain: 15. Is project or any portion of project located in a 100 year flood plain? Yes No 16. Will the project generate solid waste? Yes No a. If yes, what is the amount per month? tons b. If yes, will an existing solid waste facility be used? Yes No c. If yes, give name ; location d. Will any wastes not go into a sewage disposal system or into a sanitary landfill? Yes No Reset Page 6 of 21 ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 103 e. If yes, explain: 17. Will the project involve the disposal of solid waste? Yes No a. If yes, what is the anticipated rate of disposal? tons/month. b. If yes, what is the anticipated site life? years. 18. Will project use herbicides or pesticides? Yes No 19. Will project routinely produce odors (more than one hour per day)? Yes No 20. Will project produce operating noise exceeding the local ambient noise levels? Yes No 21. Will project result in an increase in energy use? Yes No If yes, indicate type(s) 22. If water supply is from wells, indicate pumping capacity gallons/minute. 23. Total anticipated water usage per day gallons/day. 24. Does project involve Local, State or Federal funding? Yes No If yes, explain: Page 7 of 21 Reset ---PAGE BREAK--- 25. Approvals Required: Type Submittal Date City, Town, Village Board Yes No City, Town, Village Planning Board Yes No City, Town Zoning Board Yes No City, County Health Department Yes No Other Local Agencies Yes No Other Regional Agencies Yes No State Agencies Yes No Federal Agencies Yes No C. Zoning and Planning Information 1. Does proposed action involve a planning or zoning decision? Yes No If Yes, indicate decision required: Zoning amendment Zoning variance New/revision of master plan Subdivision Site plan Special use permit Resource management plan Other Reset Page 8 of 21 ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 105 2. What is the zoning classification(s) of the site? 3. What is the maximum potential development of the site if developed as permitted by the present zoning? 4. What is the proposed zoning of the site? 5. What is the maximum potential development of the site if developed as permitted by the proposed zoning? 6. Is the proposed action consistent with the recommended uses in adopted local land use plans? Yes No 7. What are the predominant land use(s) and zoning classifications within a ¼ mile radius of proposed action? 8. Is the proposed action compatible with adjoining/surrounding land uses with a ¼ mile? Yes No 9. If the proposed action is the subdivision of land, how many lots are proposed? a. What is the minimum lot size proposed? Reset Page 9 of 21 ---PAGE BREAK--- 10. Will proposed action require any authorization(s) for the formation of sewer or water districts? Yes No 11. Will the proposed action create a demand for any community provided services (recreation, education, police, fire protection? Yes No a. If yes, is existing capacity sufficient to handle projected demand? Yes No 12. Will the proposed action result in the generation of traffic significantly above present levels? Yes No a. If yes, is the existing road network adequate to handle the additional traffic. Yes No D. Informational Details Attach any additional information as may be needed to clarify your project. If there are or may be any adverse impacts associated with your proposal, please discuss such impacts and the measures which you propose to mitigate or avoid them. E. Verification I certify that the information provided above is true to the best of my knowledge. Applicant/Sponsor Name Date Signature Title If the action is in the Coastal Area, and you are a state agency, complete the Coastal Assessment Form before proceeding with this assessment. Reset Page 10 of 21 ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 107 PART 2 - PROJECT IMPACTS AND THEIR MAGNITUDE Responsibility of Lead Agency General Information (Read Carefully) ! In completing the form the reviewer should be guided by the question: Have my responses and determinations been reasonable? The reviewer is not expected to be an expert environmental analyst. ! The Examples provided are to assist the reviewer by showing types of impacts and wherever possible the threshold of magnitude that would trigger a response in column 2. The examples are generally applicable throughout the State and for most situations. But, for any specific project or site other examples and/or lower thresholds may be appropriate for a Potential Large Impact response, thus requiring evaluation in Part 3. ! The impacts of each project, on each site, in each locality, will vary. Therefore, the examples are illustrative and have been offered as guidance. They do not constitute an exhaustive list of impacts and thresholds to answer each question. ! The number of examples per question does not indicate the importance of each question. ! In identifying impacts, consider long term, short term and cumulative effects. Instructions (Read carefully) a. Answer each of the 20 questions in PART 2. Answer Yes if there will be any impact. b. Maybe answers should be considered as Yes answers. c. If answering Yes to a question then check the appropriate box(column 1 or 2)to indicate the potential size of the impact. If impact threshold equals or exceeds any example provided, check column 2. If impact will occur but threshold is lower than example, check column 1. d. Identifying that an Impact will be potentially large (column 2) does not mean that it is also necessarily significant. Any large impact must be evaluated in PART 3 to determine significance. Identifying an impact in column 2 simply asks that it be looked at further. e. If reviewer has doubt about size of the impact then consider the impact as potentially large and proceed to PART 3. f. If a potentially large impact checked in column 2 can be mitigated by change(s) in the project to a small to moderate impact, also check the Yes box in column 3. A No response indicates that such a reduction is not possible. This must be explained in Part 3. Impact on Land 1. Will the Proposed Action result in a physical change to the project site? NO YES Examples that would apply to column 2 • Any construction on slopes of 15% or greater, (15 foot rise per 100 foot of length), or where the general slopes in the project area exceed 10%. • Construction on land where the depth to the water table is less than 3 feet. • Construction of paved parking area for 1,000 or more vehicles. • Construction on land where bedrock is exposed or generally within 3 feet of existing ground surface. • Construction that will continue for more than 1 year or involve more than one phase or stage. • Excavation for mining purposes that would remove more than 1,000 tons of natural material rock or soil) per year. 1 Small to Moderate Impact 2 Potential Large Impact 3 Can Impact Be Mitigated by Project Change Yes No Yes No Yes No Yes No Yes No Yes No Reset Page 11 of 21 ---PAGE BREAK--- • Construction or expansion of a santary landfill. • Construction in a designated floodway. • Other impacts: 2. Will there be an effect to any unique or unusual land forms found on the site? cliffs, dunes, geological formations, etc.) NO YES • Specific land forms: Impact on Water 3. Will Proposed Action affect any water body designated as protected? (Under Articles 15, 24, 25 of the Environmental Conservation Law, ECL) NO YES Examples that would apply to column 2 • Developable area of site contains a protected water body. • Dredging more than 100 cubic yards of material from channel of a protected stream. • Extension of utility distribution facilities through a protected water body. • Construction in a designated freshwater or tidal wetland. • Other impacts: 4. Will Proposed Action affect any non-protected existing or new body of water? NO YES Examples that would apply to column 2 • A 10% increase or decrease in the surface area of any body of water or more than a 10 acre increase or decrease. • Construction of a body of water that exceeds 10 acres of surface area. • Other impacts: 1 Small to Moderate Impact 2 Potential Large Impact 3 Can Impact Be Mitigated by Project Change Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Reset Page 12 of 21 ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 109 5. Will Proposed Action affect surface or groundwater quality or quantity? NO YES Examples that would apply to column 2 • Proposed Action will require a discharge permit. • Proposed Action requires use of a source of water that does not have approval to serve proposed (project) action. • Proposed Action requires water supply from wells with greater than 45 gallons per minute pumping capacity. • Construction or operation causing any contamination of a water supply system. • Proposed Action will adversely affect groundwater. • Liquid effluent will be conveyed off the site to facilities which presently do not exist or have inadequate capacity. • Proposed Action would use water in excess of 20,000 gallons per day. • Proposed Action will likely cause siltation or other discharge into an existing body of water to the extent that there will be an obvious visual contrast to natural conditions. • Proposed Action will require the storage of petroleum or chemical products greater than 1,100 gallons. • Proposed Action will allow residential uses in areas without water and/or sewer services. • Proposed Action locates commercial and/or industrial uses which may require new or expansion of existing waste treatment and/or storage facilities. • Other impacts: 1 Small to Moderate Impact 2 Potential Large Impact 3 Can Impact Be Mitigated by Project Change Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Reset Page 13 of 21 ---PAGE BREAK--- 6. Will Proposed Action alter drainage flow or patterns, or surface water runoff? NO YES Examples that would apply to column 2 • Proposed Action would change flood water flows • Proposed Action may cause substantial erosion. • Proposed Action is incompatible with existing drainage patterns. • Proposed Action will allow development in a designated floodway. • Other impacts: IMPACT ON AIR 7. Will Proposed Action affect air quality? NO YES Examples that would apply to column 2 • Proposed Action will induce 1,000 or more vehicle trips in any given hour. • Proposed Action will result in the incineration of more than 1 ton of refuse per hour. • Emission rate of total contaminants will exceed 5 lbs. per hour or a heat source producing more than 10 million BTU’s per hour. • Proposed Action will allow an increase in the amount of land committed to industrial use. • Proposed Action will allow an increase in the density of industrial development within existing industrial areas. • Other impacts: IMPACT ON PLANTS AND ANIMALS 8. Will Proposed Action affect any threatened or endangered species? NO YES Examples that would apply to column 2 • Reduction of one or more species listed on the New York or Federal list, using the site, over or near the site, or found on the site. 1 Small to Moderate Impact 2 Potential Large Impact 3 Can Impact Be Mitigated by Project Change Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Reset Page 14 of 21 ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 111 • Removal of any portion of a critical or significant wildlife habitat. • Application of pesticide or herbicide more than twice a year, other than for agricultural purposes. • Other impacts: 9. Will Proposed Action substantially affect non-threatened or non- endangered species? NO YES Examples that would apply to column 2 • Proposed Action would substantially interfere with any resident or migratory fish, shellfish or wildlife species. • Proposed Action requires the removal of more than 10 acres of mature forest (over 100 years of age) or other locally important vegetation. • Other impacts: IMPACT ON AGRICULTURAL LAND RESOURCES 10. Will Proposed Action affect agricultural land resources? NO YES Examples that would apply to column 2 • The Proposed Action would sever, cross or limit access to agricultural land (includes cropland, hayfields, pasture, vineyard, orchard, etc.) • Construction activity would excavate or compact the soil profile of agricultural land. • The Proposed Action would irreversibly convert more than 10 acres of agricultural land or, if located in an Agricultural District, more than 2.5 acres of agricultural land. 1 Small to Moderate Impact 2 Potential Large Impact 3 Can Impact Be Mitigated by Project Change Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Reset Page 15 of 21 ---PAGE BREAK--- • The Proposed Action would disrupt or prevent installation of agricultural land management systems subsurface drain lines, outlet ditches, strip cropping); or create a need for such measures (e.g. cause a farm field to drain poorly due to increased runoff). • Other impacts: IMPACT ON AESTHETIC RESOURCES 11. Will Proposed Action affect aesthetic resources? (If necessary, use the Visual EAF Addendum in Section 617.20, Appendix NO YES Examples that would apply to column 2 • Proposed land uses, or project components obviously different from or in sharp contrast to current surrounding land use patterns, whether man-made or natural. • Proposed land uses, or project components visible to users of aesthetic resources which will eliminate or significantly reduce their enjoyment of the aesthetic qualities of that resource. • Project components that will result in the elimination or significant screening of scenic views known to be important to the area. • Other impacts: IMPACT ON HISTORIC AND ARCHAEOLOGICAL RESOURCES 12. Will Proposed Action impact any site or structure of historic, prehistoric or paleontological importance? NO YES Examples that would apply to column 2 • Proposed Action occurring wholly or partially within or substantially contiguous to any facility or site listed on the State or National Register of historic places. • Any impact to an archaeological site or fossil bed located within the project site. • Proposed Action will occur in an area designated as sensitive for archaeological sites on the NYS Site Inventory. 1 Small to Moderate Impact 2 Potential Large Impact 3 Can Impact Be Mitigated by Project Change Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Reset Page 16 of 21 ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 113 • Other impacts: IMPACT ON OPEN SPACE AND RECREATION 13. Will proposed Action affect the quantity or quality of existing or future open spaces or recreational opportunities? NO YES Examples that would apply to column 2 • The permanent foreclosure of a future recreational opportunity. • A major reduction of an open space important to the community. • Other impacts: IMPACT ON CRITICAL ENVIRONMENTAL AREAS 14. Will Proposed Action impact the exceptional or unique characteristics of a critical environmental area (CEA) established pursuant to subdivision 617.14(g)? NO YES List the environmental characteristics that caused the designation of the CEA. Examples that would apply to column 2 • Proposed Action to locate within the CEA? • Proposed Action will result in a reduction in the quantity of the resource? • Proposed Action will result in a reduction in the quality of the resource? • Proposed Action will impact the use, function or enjoyment of the resource? • Other impacts: 1 Small to Moderate Impact 2 Potential Large Impact 3 Can Impact Be Mitigated by Project Change Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Reset Page 17 of 21 ---PAGE BREAK--- IMPACT ON TRANSPORTATION 15. Will there be an effect to existing transportation systems? NO YES Examples that would apply to column 2 • Alteration of present patterns of movement of people and/or goods. • Proposed Action will result in major traffic problems. • Other impacts: IMPACT ON ENERGY 16. Will Proposed Action affect the community’s sources of fuel or energy supply? NO YES Examples that would apply to column 2 • Proposed Action will cause a greater than 5% increase in the use of any form of energy in the municipality. • Proposed Action will require the creation or extension of an energy transmission or supply system to serve more than 50 single or two family residences or to serve a major commercial or industrial use. • Other impacts: NOISE AND ODOR IMPACT 17. Will there be objectionable odors, noise, or vibration as a result of the Proposed Action? NO YES Examples that would apply to column 2 • Blasting within 1,500 feet of a hospital, school or other sensitive facility. • Odors will occur routinely (more than one hour per day). • Proposed Action will produce operating noise exceeding the local ambient noise levels for noise outside of structures. • Proposed Action will remove natural barriers that would act as a noise screen. • Other impacts: 1 Small to Moderate Impact 2 Potential Large Impact 3 Can Impact Be Mitigated by Project Change Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Reset Page 18 of 21 ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 115 IMPACT ON PUBLIC HEALTH 18. Will Proposed Action affect public health and safety? NO YES • Proposed Action may cause a risk of explosion or release of hazardous substances (i.e. oil, pesticides, chemicals, radiation, etc.) in the event of accident or upset conditions, or there may be a chronic low level discharge or emission. • Proposed Action may result in the burial of “hazardous wastes” in any form (i.e. toxic, poisonous, highly reactive, radioactive, irritating, infectious, etc.) • Storage facilities for one million or more gallons of liquefied natural gas or other flammable liquids. • Proposed Action may result in the excavation or other disturbance within 2,000 feet of a site used for the disposal of solid or hazardous waste. • Other impacts: IMPACT ON GROWTH AND CHARACTER OF COMMUNITY OR NEIGHBORHOOD 19. Will Proposed Action affect the character of the existing community? NO YES Examples that would apply to column 2 • The permanent population of the city, town or village in which the project is located is likely to grow by more than • The municipal budget for capital expenditures or operating services will increase by more than 5% per year as a result of this project. • Proposed Action will conflict with officially adopted plans or goals. • Proposed Action will cause a change in the density of land use. • Proposed Action will replace or eliminate existing facilities, structures or areas of historic importance to the community. • Development will create a demand for additional community services (e.g. schools, police and fire, etc.) 1 Small to Moderate Impact 2 Potential Large Impact 3 Can Impact Be Mitigated by Project Change Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Reset Page 19 of 21 ---PAGE BREAK--- • Proposed Action will set an important precedent for future projects. • Proposed Action will create or eliminate employment. • Other impacts: 20. Is there, or is there likely to be, public controversy related to potential adverse environment impacts? NO YES 1 Small to Moderate Impact 2 Potential Large Impact 3 Can Impact Be Mitigated by Project Change Yes No Yes No Yes No If Any Action in Part 2 Is Identified as a Potential Large Impact or If you Cannot Determine the Magnitude of Impact, Proceed to Part 3 Reset Page 20 of 21 ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 117 Part 3 - EVALUATION OF THE IMPORTANCE OF IMPACTS Responsibility of Lead Agency Part 3 must be prepared if one or more impact(s) is considered to be potentially large, even if the impact(s) may be mitigated. Instructions (If you need more space, attach additional sheets) Discuss the following for each impact identified in Column 2 of Part 2: 1. Briefly describe the impact. 2. Describe (if applicable) how the impact could be mitigated or reduced to a small to moderate impact by project change(s). 3. Based on the information available, decide if it is reasonable to conclude that this impact is important. To answer the question of importance, consider: ! The probability of the impact occurring ! The duration of the impact ! Its irreversibility, including permanently lost resources of value ! Whether the impact can or will be controlled ! The regional consequence of the impact ! Its potential divergence from local needs and goals ! Whether known objections to the project relate to this impact. Reset Reset Page 21 of 21 ---PAGE BREAK--- ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 119 14-12-8 (3/99)-9c SEQR State Environmental Quality Review POSITIVE DECLARATION Notice of Intent to Prepare a Draft EIS Determination of Significance Project Number Date This notice is issued pursuant to Part 617 of the implementing regulations pertaining to Article 8 (State Environmental Quality Review Act) of the Environmental Conservation Law. The lead agency, has determined that the proposed action described below may have a significant impact on the environment and that a Draft Environmental Impact Statement will be prepared. Name of Action: SEQR Status: Type 1 9 Unlisted 9 Scoping: No 9 Yes 9 If yes, indicate how scoping will be conducted: Description of Action: Location: (Include street address and the name of the municipality/county. A location map of appropriate scale is also recommended.) ---PAGE BREAK--- SEQR Positive Declaration Page 2 of 2 Reasons Supporting This Determination: For Further Information: Contact Person: Address: Telephone Number: A copy of this notice must be sent to: Department of Environmental Conservation, 625 Broadway, Albany, New York 12233-1750 Chief Executive Officer, Town/City/Village of Any person requesting a copy All Involved agencies Applicant (If any) Environmental Notice Bulletin, 625 Broadway, Albany, NY 12233-1750 Reset Form ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 121 12-12-79 (3/99)-9c SEQR State Environmental Quality Review NEGATIVE DECLARATION Notice of Determination of Non-Significance Project Number Date: This notice is issued pursuant to Part 617 of the implementing regulations pertaining to Article 8 (State Environmental Quality Review Act) of the Environmental Conservation Law. The as lead agency, has determined that the proposed action described below will not have a significant adverse environmental impact and a Draft Impact Statement will not be prepared. Name of Action: SEQR Status: Type 1 G Unlisted G Conditioned Negative Declaration: G Yes G No Description of Action: Location: (Include street address and the name of the municipality/county. A location map of appropriate scale is also recommended.) ---PAGE BREAK--- SEQR Negative Declaration Page 2 of 2 Reasons Supporting This Determination: (See 617.7(a)-(c) for requirements of this determination ; see 617.7(d) for Conditioned Negative Declaration) If Conditioned Negative Declaration, provide on attachment the specific mitigation measures imposed, and identify comment period (not less than 30 days from date of pubication In the ENB) For Further Information: Contact Person: Address: Telephone Number: For Type 1 Actions and Conditioned Negative Declarations, a Copy of this Notice is sent to: Chief Executive Officer , Town / City / Village of Other involved agencies (If any) Applicant (If any) Environmental Notice Bulletin, 625 Broadway, Albany NY, 12233-1750 (Type One Actions only) Reset Form ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 123 APPENDIX A - Form of Referral Letter for Proposed Action Cayuga County Department of Planning and Economic Development 160 Genesee St.-5th Fl. Auburn, NY 13021 Ladies and Gentlemen: Pursuant to the requirements of Section 239 NYS GML the Planning Board hereby refers the following proposed action to the Cayuga County Planning Board: MAP OF - Tax Map No.: Type of Name and Address of Applicant or MATERIAL SUBMITTED: (Specify and give number of copies) REFERRAL SEQRA STATUS: The project is an (Unlisted) (Type I) (Type II) Action. A (Negative Declaration) (Positive Declaration) (Determination of Non-Significance) has been adopted by the Planning Board E.I.S. statement enclosed. (Yes) (No) The proposed action has received approval from the Cayuga Dept. of Health. (Yes) (No) Very truly yours, 239 Sample Cover Letter ---PAGE BREAK--- List of Actions Subject to Review Under NYS General Municipal Law §239 l, m &n The 239 Review Committee reviews the following actions: • adoption or amendment of a zoning law or ordinance • issuance of a special permit • approval of a site plan • granting of a use or area variance • subdivision approval When the action takes place within 500 feet of: • the boundary of any village, town or City of Auburn • the boundary of any existing or proposed county, state, or federal park or other recreation area • the right of way of any existing or proposed county or state parkway, thruway, expressway, road or highway • the existing or proposed right-of-way of any stream or drainage channel owned by the county or for which the county has established channel lines • the existing or proposed boundary of any other county, state or federally owned land, held or to be held for governmental use • a working farm located within an Agricultural District created under Article 25AA NYS Agriculture and Mar­ kets Law Except the following activities exempted by Memorandum of Understanding between the County Planning Department and all but seven of the County’s municipalities: • activities that, while within 500 feet of a state or county highway, are on a parcel that does not front on that state or county highway • activities that, while within 500 feet of a municipal boundary, would be permitted within the area of the adjoining municipality abutting the parcel where the activity is proposed • area variances • amendments to a local zoning law or ordinance that are intended to clarify, redefine, expand, or modify words and/or terms that do not alter the dimensional or use standards of the regulation • amendments to a local zoning law or ordinance that are intended to address procedural or administrative matters that do not alter the dimensional or use standards of the regulation • Amendments to a local zoning law or ordinance that are intended to reduce the type or number of uses permitted within a particular zoning district • Amendments to a local zoning law or ordinance that are intended to reduce the intensity and or density of development permitted within a particular zoning district • Any activity subject to review by a local agency employing a municipal planner on a full time basis who will advise the referring agency concerning the referred matter • Any subdivision of land not required to be submitted to the Cayuga County Health Department for review under the definition of a subdivision set forth in Section 1115 of the Public Health Law of the State of New York. The Towns of Aurelius, Conquest, Moravia, Sempronius, Summerhill and Throop and the Village of Meridian have not signed MOUs exempting the above actions. ---PAGE BREAK--- Materials for Cayuga County Zoning Boards of Appeals Page 125 Items that must be included in a 239 referral: 1) Cover letter 2) A complete copy of the local application 3) One copy of all materials submitted to the local reviewing agency including, for example, maps, drawings, studies, reports or photos 4) Supporting information a) Statement of SEQR status and a copy of any EAF or EIS required by the municipality or any other involved agency b) Name and address of the applicant