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Zoning Boards: Introductory Training David Nelson, AICP John Zepko, CPESC Cayuga County Department of Planning and Economic Development 15 March 2017 ---PAGE BREAK--- ---PAGE BREAK--- PURPOSE To introduce the basic requisites of being a member of a local zoning board of appeals ---PAGE BREAK--- The New York State Legislature has granted to towns, villages, and cities the power both to perform municipal planning activities and adopt land use regulations • Article 16 of the Town Law (ZBA ‐ Section 267, 267a, 267b, 267c) • Article 7 of the Village Law (ZBA – Section 7‐712, 7‐712a, 7‐712b, 7‐712c) • Article 3 and 5A of the General City Law (ZBA – Sections 81, 81a, 81b, 81c) ---PAGE BREAK--- Administrative Process 1. Determination of Zoning official 2. Appeal (by aggrieved party) 3. Preliminary acceptance of application (w/in 60 days determination by ZEO ) 4. Acceptance of Complete Application 5. Notice of Hearing 6. County Referral 7. Hearing 8. SEQR 9. Action on Proposal (w/in 62 day of close of hearing) 10. Notification and Filing (w/in 5 business days) ---PAGE BREAK--- Key Government Players • Local Legislative Body • Planning Board • Building Inspector/Code Enforcement Officer • Other Special Committees/Entities (Conservation Commission, Landmark Commissions, Architectural Review Boards, Business Improvement Districts, etc.) • Professional and Support Staff • County/Regional/State Support ---PAGE BREAK--- Composition of the ZBA • 3‐5 Members appointed by municipal board • Town/village board members may NOT be appointed • Terms are staggered so that one person’s term expires each year • Length of appointment is measured in years equal to the number of ZBA members (3 person board = 3 year terms) • Alternate members may be authorized by local law ---PAGE BREAK--- Code Enforcement Officer • May be in charge of enforcing both the local regulations and the Uniform Building and Fire Code. • Municipalities may have different code enforcers for these two codes. • Code officers issue building permits. When a permit is denied, the applicant can apply to the ZBA for a variance. • When a permit is granted an aggrieved party can apply for an interpretive appeal. ---PAGE BREAK--- Powers and Duties of the ZBA • Appellate Jurisdiction • Granted by state statute • Hear and decide on an appeal of a decision of a zoning officer • Grant area and use variances • Original Jurisdiction • Granted by the Ordinance or Local Law • Grant special use permits • Review and approve site plans ---PAGE BREAK--- A word on Appellate Jurisdiction People seeking variances or interpretations must be appealing a decision of the administrative official (typically the Code Enforcement Officer) BEFORE they can go to the ZBA. 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. [Town Law §267‐a Village Law §7‐712‐a ---PAGE BREAK--- Example Mr. Smith wants to build a house on a 39,990 square foot lot. The zoning law says that the lot must be 40,000 square feet in area. The CEO, who has no choice in the matter, must deny Mr. Smith a zoning permit. (A CEO cannot vary the zoning regulations, no matter how trivial the problem might seem). Mr. Smith can now appeal the CEO’s decision to the ZBA. Mr. Smith can't request a variance unless he is appealing the CEO’s decision, even if he knows that he needs a variance before he even applied for a zoning permit. ---PAGE BREAK--- Exception to the Rule The ZBA may hear appeals without a decision from the CEO for three situations: 1. area variance appeals during the course of subdivision review and approval [Town Law §277 Village Law §7‐730 2. site plan review [Town Law §274‐a Village Law §7‐725‐a 3. the review of special use permits [Town Law §274‐b Village Law 725‐b]. Applicants in each of these three situations are able to go directly to the ZBA for an area variance, “without the necessity of a decision or determination of an administrative official charged with the enforcement of the zoning regulations.” ---PAGE BREAK--- Aggrieved Persons An appeal may be taken by “any person aggrieved, or by an officer, department, board or bureau” of the town/village [Town Law §267‐a Village Law §7‐712‐a • To be aggrieved, one must have a specific, personal and legal interest in the subject matter as opposed to a general interest as might be shared • a person denied a permit by the CEO or cited being in violation of zoning law • another resident objects to a permit which has been issued. • To qualify as an aggrieved person, the issuance of the permit must have had a detrimental effect upon the use or value of his land ---PAGE BREAK--- Time Limit for Appeals/Application Such appeal shall be taken within sixty days after the filing in the town/village clerk’s office of any order, requirement, decision, interpretation, or determination of the administrative official charged with the enforcement of such ordinance or local law by filing with such administrative official and with the board of appeals a notice of appeal, specifying the grounds thereof and the relief sought. [Town Law §267‐a Village Law §7‐712‐a ---PAGE BREAK--- Applications Application form Proof of Ownership Environmental Assessment Forms Maps showing : setbacks of existing and proposed structures Lot size Property lines Frontage length Utility locations ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- Two Types of Appeals Interpretive Appeal Based on the claim that the zoning enforcement official’s decision was wrong and that the zoning regulations were incorrectly applied. Variance Can only be applied for by the person who has been denied a permit. A variance asks that the regulations be varied to allow the party to be able to do what the enforcement officer has determined they cannot do. ---PAGE BREAK--- Variances Area Variance Authorizations by the Zoning Board of Appeals to use land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations Use Variance Authorization by the Zoning Board of Appeals to use land for a purpose which is otherwise not allowed or prohibited by the applicable zoning regulations ---PAGE BREAK--- Criteria for Granting Area Variances ZBA shall take into account: • Whether benefit can be achieved by other means • Whether there will be undesirable change in neighborhood character or to nearby properties • Whether the variance is substantial • Whether the variance will have adverse physical or environmental effects • Whether there has been any self‐created difficulty ---PAGE BREAK--- Criteria for Area Variances (cont’d) Balancing Test Weigh the benefit to the applicant against the detriment to health, safety, and welfare of the neighborhood or community if granted ---PAGE BREAK--- If approved, the Zoning Board of Appeals shall grant the minimum variance necessary and may impose reasonable conditions Board Decisions ---PAGE BREAK--- Criteria for Granting Use Variances In order to be allowed a use that is otherwise not permitted, the applicant must prove Unnecessary Hardship ---PAGE BREAK--- Criteria for Use Variances (cont’d) The hardship must be proved by demonstrating for each and every permitted use in the district: 1. The applicant cannot realize a reasonable return, as shown by financial evidence 2. The hardship is somewhat unique or at least not shared by a majority of parcels in the same district 3. The hardship has not been self‐created 4. The requested variance will not alter the essential character of the neighborhood ---PAGE BREAK--- Test # 1: Deprivation of “Economic Use or Benefit” / Reasonable Return What is a “reasonable return”? • Would the applicant lose the practical use of his land if he had to conform to the use requirements of the zoning law? • Is the applicant deprived of all economic use or benefit from ? • An examination of all of the permitted uses should be undertaken ---PAGE BREAK--- Unacceptable Arguments More Profit: An applicant may argue that he could use the land much more profitably if he had a use variance. This argument does not prove unnecessary hardship. Self‐Inflicted Hardship: An applicant may argue he has a hardship, even though that hardship was created by his own actions. For example, an applicant may buy some residentially zoned land for a very high price, thinking he will then get a variance and use the land commercially. This applicant now comes before the ZBA and argues that he cannot use the land for residences; the land cost too much to expect a reasonable return from residential development. Obviously he created his own hardship by paying an inflated price for the land, and he should not be granted a variance. ---PAGE BREAK--- Reasonable Return • Reasonable return cannot be satisfied except by a showing of dollar and cents proof • The amount paid for the land in question. • Its present market value. • Annual maintenance expenses. • Annual land taxes and school taxes. • The unpaid balance of mortgages and other encumbrances. • The annual income from the land in question for each and every use permitted in the zoning district. • Proof that this actual or estimated return for each permitted use is not reasonable under the circumstances [Crossroads Recreation v. Broz, 4 NY 2d 39 (1958)]. • The burden of proof is always on the applicant ---PAGE BREAK--- Test # 2: Uniqueness • The ZBA should determine how unique the conditions are that make an applicant's land difficult to use. • If the conditions are common in the area and many other landowners have the same problem, the zoning law may be at fault, and amending the law should be considered. ---PAGE BREAK--- Test # 3: Character of the Neighborhood • The neighborhood should not be disrupted by the proposed use. • This test should be met even if the applicant proves unnecessary hardship. A residential area could be disrupted by the establishment of a commercial use which generates additional traffic, or excessive noise. ---PAGE BREAK--- Test # 4: Self‐Created Hardship • An applicant who creates the hardship, or who acquired the property knowing of the existence of the condition he/she now complains of, should not be granted a use variance. • For instance, an applicant who purchased a parcel of property located in a residential neighborhood, with knowledge of the zoning restrictions, cannot argue that they were deprived of the “economic use or benefit” of the property for commercial use, since the “hardship” was of their own creation. ---PAGE BREAK--- Variances Are Forever Variances run with the land, not a particular property owner or time period. ---PAGE BREAK--- New York State's Open Meetings Law (Public Officers Law Article 7, §100‐111) • Advance notice required • Public must be allowed to be present • Media must be reasonably accommodated • Written minutes required ---PAGE BREAK--- A board may hold a closed meeting or executive session to discuss... 1. Matters which will imperil the public safety if disclosed 2. Any matter which may disclose the identity of a law enforcement agent or informer 3. Information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed 4. Discussions regarding proposed, pending or current litigation 5. Collective negotiations pursuant to Article 14 of Civil Service Law ---PAGE BREAK--- Executive session (cont’d.) 6. The medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation 7. The preparation, grading or administration of examinations 8. The proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by the board, but only when publicity would substantially affect their value ---PAGE BREAK--- Public Hearings Sessions conducted by the board at which any and all persons are given an opportunity to be heard on a matter Public hearings are required by State Law on all • Subdivisions • Special Use Permits • ZBA Appeals • New or Revised Comprehensive Plans Remember • Notice (10 days for Towns, 15 days for Cities) • Quorum ---PAGE BREAK--- Public Hearings (cont’d) Suggestions for Successful Hearings • Size of Facility • Accessibility • Microphones • Introduction • Sign‐In Sheet for Speakers • Second Chance to Speak ---PAGE BREAK--- Meeting and Hearings Together You may alternate between meetings and hearings the same evening as long as they have all been advertised. For example: 1. Open the meeting, review the minutes 2. Open hearing on Agenda Item close hearing. 3. Have meeting on Agenda Item make decision if appropriate 4. Repeat numbers 2 and 3 for each agenda item. 5. Close Meeting. ---PAGE BREAK--- County 239 Referral • Required by General Municipal Law Sections 239‐m,n • Purpose‐To provide review of countywide or inter‐ municipal impacts of certain projects • A referral must be sent to the County at least 30 days prior to a final action by the referring body ---PAGE BREAK--- County Referrals, (cont’d) Certain Actions Requiring County/Regional Planning Agency Review • Adoption or amendment of a comprehensive plan • Adoption or amendment of a local land‐use law • Issuance of special use permits • Approval of site plans • Granting of area or use variances • Other authorizations the local board is empowered to issue under local zoning ordinance or local law ---PAGE BREAK--- County Referrals (cont’d) Those actions which must be referred to the county are those which affect property within 500 feet of any of the following features: • A city, town or village boundary • The boundary of any existing or proposed county or state park or recreation area • The right‐of‐way of any existing or proposed county or state parkway, thruway, expressway, road or highway ---PAGE BREAK--- County Referrals (cont’d) • 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 county or state‐owned land on which a public building or institution is situated • The boundary of a farm operation located in an agricultural district (does not apply to area variances) ---PAGE BREAK--- Findings Grounds for modification or disapproval must be stated upon the record. Basis for Determination A court will not upset a board of appeals’ determination if it is rational and supported by substantial evidence. Generalized complaints or speculative fears of predicted consequences provide no basis for disapproval. ---PAGE BREAK--- Decision Making 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. [Town Law §267‐a Village Law §7‐712‐a • ZBAs have 62 days from the close of the public hearing to make their decision • State law provides flexibility for a longer decision‐making period upon mutual consent of the board and the applicant ---PAGE BREAK--- The Vote Every motion or resolution of a board of appeals shall require for its adoption the affirmative vote of a majority of all members of the board of appeals as fully constituted regardless of vacancies or absences. [Town Law §267‐a 13 Village Law §7‐712‐a 13 • A majority of all members means all the members of the board, not just the ones present at a meeting. • If three members of a five‐member board vote two‐to‐one to approve a variance, the variance has not been approved. ---PAGE BREAK--- Tie Vote = Default Denial 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 …the appeal is denied. [Town Law §267‐a 13 Village Law §7‐712‐a 13 If a quorum of the Board is present, but fails to have a majority vote (such as a 2 – 2 tie), then the Code Officer’s decision remains in effect and the Board’s vote constitutes a default denial of the appeal. ---PAGE BREAK--- Rehearing • Statutes provide for the rehearing of a matter on which the board has already made a decision on • Rehearing may only occur following the unanimous vote of the members present • The Board can then rehear a case in its entirety and make a new decision • A unanimous vote of those members then present is required to change its original decision ---PAGE BREAK--- Amendment of a Failed Motion • Statues provide that the board may amend a failed motion and vote on the amendment • Must be done with 62 days after the close of the public hearing • This DOES NOT require the board to follow the statutory rehearing process ---PAGE BREAK--- Board Decisions All decisions • Must be filed with the municipal Clerk • Must be sent to the applicant • May need to be sent to the County Planning Dept. Variances If approved, the Zoning Board of Appeals shall grant the minimum variance necessary and may impose reasonable conditions ---PAGE BREAK--- Records Minutes All Applications Required Materials SEQRA Documentation Third Party Information Written Resolutions Statutes of limitations generally expire 30 days after a determination is filed. Failure to accurately maintain records can keep a municipality vulnerable to challenge longer than is necessary ---PAGE BREAK--- Article 78 Proceedings (appealing the decision of ZBA) • 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. ---PAGE BREAK--- Article 78 Proceedings (cont’d) 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. Preference of appeal All issues in any proceeding under this section shall have preference over all other civil actions and proceedings. ---PAGE BREAK--- Article 78 Proceedings (cont’d) Power of the court • …the supreme court…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--- Spot Zoning • Spot Zoning refers to a situation in which a parcel is rezoned in a manner that is NOT consistent with local land use policies. • Given the tests that need to be met to grant a Use Variance, the evidence presented for these tests would also be used to justify that the granting of the variance would not be spot zoning. ---PAGE BREAK--- Questions? If you have any questions, feel free to contact us John Zepko David Nelson Cayuga County Department of Planning and Economic Development 315‐253‐1276 [EMAIL REDACTED] [EMAIL REDACTED]