Powers

1
Powers Duties of the Zoning Board of Appeals
Presented by Judith Breselor, AICP Executive
Director, NYPF T.J. Kennedy Assistant Planner,
NYPF
600 Broadway - 1 Albany NY 12207 518-512-5270 www
.nypf.org
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What are the Powers and Duties the ZBA?

• A quasi-judicial body
• Appellate jurisdiction
• Independent of the governing body
• (ie Cairo Town Council)

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What is a Variance?

• A variance provides an exception to and relief
  from the strict application of the zoning
  ordinance
• Should be granted infrequently

4
Types of Variances

• Area variance
• - provides relief from dimensional
  requirements e.g. yard setbacks, road frontage,
  lot coverage or height limits
• Use variance
• - allows land to be used for a purpose not
  allowed by the zoning regulations

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Area Variances

• Weigh the benefit to the applicant against the
  detriment to the health, safety and welfare of
  the neighborhood or community.

The ZBA must consider whether 1. The
neighborhood character would change, 2.
Alternative solutions are possible, 3. The
variance is substantial, 4. There would be
adverse impacts, and 5. There is a self-created
difficulty
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Adverse Impacts

• Whether the proposed variance will have any
  adverse effect or impact on the physical or
  environmental conditions in the neighborhood or
  district
• - Are drainage, wetlands, water quality, waste
  disposal,
• scenic, historic or other similar
  concerns relevant?
• - Could imposed conditions mitigate impacts?

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Self-created Difficulty?

• 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
• - Often, this means there is not enough land to
  meet
• required setbacks

8
Standards for Review

• Statutory standards must be used
• A variance is an appeal
• Burden of proof for applicant is high
• Minimum relief only
• Conditions may be attached
• Findings of fact needed

9
Imposing Conditions

• The ZBA has the authority to impose reasonable
  conditions and restrictions for both area and use
  variances
• - To minimize adverse impacts
• - Consistent with spirit of local zoning

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Use Variances

• In order to be granted a use variance, the
  applicant must prove unnecessary hardship by
  demonstrating that for each and every permitted
  use in the district
• 1. There would be no reasonable return
• 2. There are unique circumstances
• 3. The neighborhood character will not be
  altered, and
• 4. The hardship was not self-created

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No Reasonable Return

• The applicant cannot realize a reasonable
  return, provided that the lack of return is
  substantial as demonstrated by competent
  financial evidence
• - for any permitted use
• - for any use allowed under a current use
  variance
• - for a current lawful nonconforming use
• - The ZBA must consider property as a whole
• - Reasonable rate of return determined by the
  ZBA

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Unique Circumstances

• The alleged hardship relating to the property in
  question is unique, and does not apply to a
  substantial portion of the district or
  neighborhood
• Uniqueness must relate to the landnot the owner

13
Neighborhood Character

• The requested use variance, if granted, will not
  alter the essential character of the
  neighborhood
• Is the use consistent with the pattern and scale
  of development in the area?
• Would the use have a detrimental impact on the
  neighborhood?
• 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
• Would the imposition of conditions help?
• Do other factors outweigh?

14
Alternative Solutions?

• Whether the benefit sought by the applicant can
  be achieved by some method, feasible for the
  applicant to pursue, other than an area variance
• Can the proposed building design, location or
  orientation be reasonably altered?

15
Self-Created Hardship

• The alleged hardship has not been self-created
• The hardship is self-created if the request is
  for a variance from restrictions that existed at
  the time of purchase, even if landowner unaware.
• The hardship is self-created if money was spent
  on an unauthorized project or if the owner made a
  physical change to the property that now
  precludes an authorized use.

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Additional Requirements

• Statutes require compliance with Section 239-m of
  the General Municipal Law (requiring notice to
  county, metropolitan or regional planning agency)
• municipal boundary, County or State road
• County or State park or recreation area
• Boundary of any County or State-owned land on
  which a public building or institution sits
• Farm operation located in one of the two updated
  County Agricultural Districts
• The right-of-way of any stream or drainage
  channel owned by the county.

(existing or proposed)
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What if the County Makes a Decisionthe Board
Feels is Incorrect?

• To Overturn the Recommendation of the County You
  Will Need a Majority Plus One (1).
• (i.e. 5 Member Board you will need 4 in Favor of
  to Disapprove the Countys Recommendation)

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Decisions and Appeals

• Board decisions should
• review and approve, approve with modifications or
  disapprove
• be understandable, specific, detailed and in
  writing
• Appeals of decisions are taken to State Supreme
  Court in an Article 78 proceeding or Declaratory
  Judgment proceeding.

19
What If You Want to Re-Hear an Application
Previously Denied

• If an applicant wishes to have a denial re-heard,
  the entire ZBA must be in agreement and vote
  unanimously to approve another hearing.
• A motion must be made by the Board and re-heard
  at the next ZBA meeting.
• The project MUST be announced to the Public once
  again to be re-heard.

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Interpretations

• There are two types of appeals
• Interpretive
• Variance
• In the interpretive appeal, the appealing party
  claims that the enforcement officers decision
  was wrong and the appellant is seeking a reversal
  of that decision.
• The ZBAs primary objectives are
• (1) to determine the original intent of the
  governing board in enacting the regulation in
  question and
• (2) arriving at the most practical solution.

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Public Hearing at the Meeting

• All Matters that Come Before a Zoning Board of
  Appeals must have a public meeting first.
• Each Agenda Item Should be Read Aloud by the ZBA
  Chair and for each item a Separate Public Meeting
  must be held before SEQR Determination.
• Listen to the Applicant and then Call the Public
  Meeting to Order - ask if there is anyone in the
  audience who wishes to speak for or against a
  project.
• Each speaker should state their name and Address,
  only those who live within the Community should
  weigh in on the project unless a neighboring
  community will be negative impacted by the
  project.
• Close the Public Hearing and note the time that
  the Hearing is closed.

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The Public Hearing

• ZBA must conduct a public hearing within 62 days
  from the date the application is received.
• Notice of the public hearing must be published in
  a newspaper of general circulation at least five
  (5) days prior to the hearing.
• ZBA must make a decision within 62 days after the
  close of the public hearing (time may be extended
  by mutual consent of the board and applicant)

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Other Issues You Need to Know

• Which board does what?
• Quorum
• Workshop Vs. Meeting
• Hostile Public
• Ethics/Conflicts
• Smooth Meetings

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Is There a Quorum?

• If there is a ZBA of 5 Members, a Quorum would
  consist of half plus one, that is there must be
  three members present to conduct business.
• When voting on a issue there still must be a
  quorum of the entire body in order to pass a
  variance. That is if only 3 members are present
  of a 5 member board, all 3 members must vote the
  same to approve a variance request.
• The Board should advise an Applicant if the full
  membership of the board is not present and
  explain that all members would be required to
  vote the same on an issue and allow the Applicant
  to Reschedule if Desired.

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Does Everyone Understand the Difference Between
the Workshop Meeting and the Public Hearing?

• FOR BOTH PUBLIC MUST BE NOTIFIED IF
• There will be a quorum of the body of the board
• Discussion at a Workshop Meeting includes
  gathering of information to help the board make
  a better decision
• No Decision can be made on a proposal at the
  workshop meeting, it is only a time to review a
  project and make sure you have all of the
  information needed to make a decision
• NEVER tell an applicants that a project will be
  approved or disapproved
• Do not participate in ex-parte communication
  (this isnt time to listen to neighbors or those
  impacted by the project)

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Is the Variance Substantial?

• Whether the requested area variance is
  substantial
• - Consider amount as well as magnitude of
  variance request

Grant Minimum Variance Necessary
Where a variance is granted, it must be for the
minimum variance deemed necessary - The ZBA does
not have to grant or reject a variance as
submitted
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Hostile Public

• One Person Only Can Speak and Must State their
  Name and Address
• Do Not Allow Any One Person to Speak for More
  than 5 Minutes Unless the Board Needs More
  Information
• Make Sure the Speaker is Addressing the Board and
  Not Another Resident in the Room
• Issue Must Only Address the Application which is
  Before you.
• Dignity and Respect for all Attending

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Ethics/Conflicts of Interest

• General Municipal Law, Article 18
• Prohibits a public officer (and immediate family)
  from having any interest in a private contract
  with his or her municipality in which he or she
  has a decision-making role.
• Prohibits a public officer from soliciting,
  accepting or receiving any gift valued at 75 or
  more.
• Requires applications that need boards approval
  to disclose any interest in the application
  possessed by any public officer, employee and
  extended family.
• Requires municipalities to adopt local code of
  ethics

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Approaches to Ethics

• Avoid any appearance of impropriety
• Conflicts of interest that are pecuniary
  involve family require recusal
• Local officials may still submit applications
• Alternates help in cases of recusal
• Dont announce position on projects before record
  is closed all facts are in
• Avoid ex parte contacts, but if they occur, put
  in the record

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Smooth Meetings

• Thorough, clear agendas
• Well-written notification and materials for the
  public
• Clear meeting procedures
• An opportunity for public input
• An enforceable policy and the consistent will and
  means to enforce it

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SEQR

• SEQR (State Environmental Quality Review) is a
  procedure that applies to all decisions of the
  planning board and ZBA.
• Its premise is that, as stewards of the
  environment, local boards must include
  environmental considerations in their
  decision-making.
• Typically, the local board is the lead agency in
  SEQR procedures.
• The SEQR process is required by SEQRA (the State
  Environmental Quality Review Act), Article 8 of
  the State Environmental Conservation Law.

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When does SEQR Apply?

• SEQR procedures apply to all actions as defined
  in Article 8 of State Environmental Conservation
  Law.
• Included projects directly undertaken or funded
  by a governmental unit private projects
  requiring a lease, permit, license, certificate
  or other entitlement for use or permission from
  a governmental unit.

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Initial SEQR Review

• The first thing a board must do when it receives
  an application for approval of a project is
  determine whether or not it is subject to SEQR.
• Type II actions do not require further SEQR
  review.
• Type I or Unlisted actions require further SEQR
  review.
• A prerequisite to making this determination is
  that the application contains all submission
  materials required by local regulations. If not,
  it should be returned to the applicant with
  instructions to complete it.

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Exclusions

• Actions undertaken, funded or approved prior to
  the effective date of SEQRA (1976)
• Large-scale utility projects subject to approval
  by NYS Public Service Commission
• Regional projects under the jurisdiction of the
  Adirondack Park Agency.

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Actions Under SEQR

• State SEQR regulations (19 NYCRR Part 617) list
  types of projects and categorize them according
  to their probable effect on the environment.
  Projects are divided into
• Type 1 Actions which have the potential for
  significant environmental impact.
• Type 2 Actions which will probably not have a
  significant impact.
• Unlisted Actions

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Exempt Actions

• In addition to exclusions under SEQR, certain
  actions are exempt. These include
• Civil or criminal enforcement procedures
• Ministerial acts involving no exercise of
  discretion (see next slide)
• Maintenance or repair to an existing structure
• Emergency actions necessary to preserve life,
  health, property or natural resources
• Actions of the State Legislature or courts.

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Ministerial Acts

• Are those undertaken by a government official
  which involves the application of a clear set of
  rules.
• The correct application of those rules grants the
  applicant an absolute right to approval and no
  exercise of discretion is involved.
• Example Issuance, by the zoning/code enforcement
  officer, of a building or zoning permit where the
  officers act alone allows the action to proceed.

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Type I or Unlisted
SEQRA Action Type
Type II

• Construction of farm buildings
• Construction or expansion of less than 4,000 sq.
  ft. of nonresidential space involving neither a
  change of zoning nor a use variance
• Granting of individual setback and lot-line
  variances
• Granting any area variance for a 1-, 2- or
  3-family residence
• Adoption of a moratorium on land development or
  construction
• Interpreting an existing code, rule or regulation

• Type 1 Action applicants are required to
  complete a Full Environmental Assessment Form
  (EAF) model available through NYS DEC.
• Unlisted Action the board may require either a
  Full or Short-EAF.
• The board must determine whether the project
  involves other agencies at the Federal, State,
  county or local level.

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SEQRA Process Flow Chart
Provided by NYS DEC
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Special Use Permits

• For uses that are generally suitable for a
  particular zoning district.
• Yet the decision as to whether and under what
  conditions the use may actually be allowed on a
  particular parcel is left to a reviewing board.
• Special uses are usually those with which there
  may be specific concerns and for which specific
  conditions are often imposed.

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SUP Review Standards

• How specific should review standards be?
• More specific the standards equates to less work
  for the board will have on a daily basis, as well
  as more consistent and supportable decisions or
  outcomes.
• Specific standards save time and add
  predictability.

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Lead Agency Status

• If a project is either Type I or Unlisted Action,
  a lead agency must be established.
• If no other agency is involved in permitting or
  approving the project, the board receiving the
  application is the lead agency.
• If other agencies are involved, a coordinated
  review occurs, in which case the various
  involved agencies must agree on which will serve
  as lead agency.

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Lead Agency Status (cont.)

• The lead agency makes a determination of
  significance within 20 days of receipt of the
  application, EAF, or any additional information
  required.
• A determination of significance means that the
  lead agency must decide whether or not to require
  an Environmental Impact Statement (EIS).
• If an EIS is required, the lead agency makes a
  positive declaration, meaning that the project
  may have a significant environmental impact.
• A negative declaration means that the project
  will not have a significant effect on the
  environment.

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Lead Agency Status (cont.)

• The lead agency makes a determination of
  significance within 20 days of receipt of the
  application, EAF, or any additional information
  required.
• A determination of significance means that the
  lead agency must decide whether or not to require
  an Environmental Impact Statement (EIS).
• If an EIS is required, the lead agency makes a
  positive declaration, meaning that the project
  may have a significant environmental impact.
• A negative declaration means that the project
  will not have a significant effect on the
  environment.

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Conditioned Negative Declaration

• A hybrid determination is only possible for
  Unlisted Actions.
• The lead agency determines that there may be
  significant environmental effects, but they can
  be eliminated or mitigated by imposing
  appropriate conditions.
• This allows the applicant to avoid the time and
  expense of preparing an EIS, so long as they
  agree in advance to abide by set of conditions.

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Additional Criteria

• DEC has adopted useful criteria for the lead
  agency making a determination of significance.
  The agency must
• Consider aspects of an action as set forth in
  Part 617
• Review the EAF, the detailed guidelines for
  determining significance contained in Part 617,
  and other supporting information
• Thoroughly analyze the relevant areas of
  environmental concern
• Set forth a determination of significance in
  written form, containing a reasoned elaboration
  and providing reference to any supporting
  documentation.

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Other Reviews Approvals Who Does What?

• Interpretations ZBA
• Site Plan Approval Planning Board
• Subdivision Planning Board
• Local Laws Only the Legislative Body

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Other Resources

• NYPF publications (www.nypf.org)
• All You Ever Wanted to Know About Zoning
• The Short Course
• County planning departments
• Regional planning commissions
• DOS Division of Local Government
• Association of Towns of NYS
• New York Conference of Mayors and Municipal
  Officials (NYCOM)

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The New York Planning Federation

• The New York Planning Federation (NYPF) is a
  statewide, member-supported non-profit.
• It was founded in 1937 as a service organization
  to municipal planning and zoning officers.
• We offer technical assistance through phone
  and/or onsite consultations, one-day workshops,
  an annual three-day conference and several
  publications.

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THANK YOU!
New York Planning Federation600 Broadway,
Suite 1Albany, New York 12207Office (518)
512-5270Fax [phone]http//www.nypf.org