Board of Appeals.

[Amended 8-10-1978; 6-17-1993]

A. The Board of Appeals heretofore created is hereby continued, consisting of five members appointed by the Town Board of the Town of Webster. The term of each member shall be five years.

B. No action shall be taken by the Board of Appeals in any case until after public notice and hearing.

[Amended 5-16-1996; 6-3-2021 by L.L. No. 4-2021]

(1) Proper notice of a public hearing before any board shall be given by legal notice published in the official newspaper of the Town of Webster, at least five days before the date set for a public hearing, as required by § 267-a of the Town Law.

(2) Those submitting applications before the Planning Board and Zoning Board of Appeals, and all special permit and rezoning applications before the Town Board, shall be required to post a Town-provided sign in a publicly conspicuous location on or in front of the front property line of the property affected. Said sign shall notify the public of a pending application and hearing and shall be posted not less than 10 days prior to and up to the date of the hearing. Such sign shall be provided by the Town and/or its designee and shall be removable by the Town and/or designee within five days after the hearing is concluded.

C. The presence of three members shall constitute a quorum, and the concurring vote of a majority of the Board of Appeals shall be necessary to reverse or modify any order, requirement, decision, interpretation or determination made by any administrative or enforcement official or to decide in favor of the applicant on any matter upon which the Board is required to pass or to effect any variation in the requirements of the ordinance; subject, however, to the requirements of §§ 239-l, 239-m and 239-nn of the General Municipal Law.

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]

D. Jurisdiction.

(1) Appeals for interpretation. The Board of Appeals shall hear and decide appeals where it is alleged that there is an error or misinterpretation in an order, requirement, decision or determination by any administrative official of the Town of Webster charged with the enforcement of the provisions of this chapter. The Board of Appeals may reverse, modify or affirm, in whole or in part, any such appealed order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as, in its opinion, ought to be made in strictly applying and interpreting the provisions of this chapter and, for such purposes, shall have all the powers of the officer from whom the appeal is taken.

(2) Appeals for variance.

(a) Use variance.

[Amended 6-18-1998]

[1] The Board of Appeals may grant a use variance upon a showing by the applicant that the 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 that:

[a] The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence.

[b] The alleged hardship relating to the property in question is unique and does not apply to a substantial portion of the district or neighborhood.

[c] The requested use variance, if granted, will not alter the essential character of the neighborhood.

[d] The alleged hardship has not been self-created.

[2] The Board of Appeals, in granting a use variance, 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.

(b) Area variance.

[1] Area variances may be considered where dimensional requirements of this chapter cannot be reasonably met. The 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. The Board of Appeals shall consider whether:

[a] An undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by granting of the area variance;

[b] The benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;

[c] The requested area variance is substantial;

[d] The proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and

[e] 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.

[2] 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.

(c) Imposition of conditions. The Board of Appeals shall, in the granting of both use variances and area variances, have the authority to impose such 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.

[Amended 5-16-1996]

E. Procedure.

(1) General provisions. The Board of Appeals, consistent with law and ordinance, may adopt rules of conduct and procedure.

(2) Filing appeals. An appeal to the Board of Appeals from any ruling of any building inspector charged with the enforcement of this chapter may be taken by any person or persons aggrieved or by any officer, department, board or bureau of the Town.

(a) The person or persons so aggrieved must file a notice of appeal within 60 days after the filing of any order, requirement, decision, interpretation or determination of the Building Inspector charged with the enforcement of the ordinance or local law. The notice of appeal must specify the grounds for the appeal and the relief sought. The Building Inspector from whom the appeal is taken shall transmit to the Board, upon payment of the required fee, all papers constituting the record upon which the action appealed from was taken.

(b) The Building Inspectors shall process all applications before the Board of Appeals and shall provide such assistance and information as the Board shall request.

(c) All applications to the Board of Appeals shall be in writing upon forms furnished by the Town. The Board of Appeals requests that an instrument survey accompany all applications; however, a tape location map may be accepted at the Board's discretion. The applicant shall provide such additional information, documents or evidence as shall be required by the Building Inspectors to support the appeal to the Board of Appeals, such information, documents, maps or other evidence, together with the denial, to be reproduced in sufficient copies for the Board of Appeals. All required documents, maps and information shall be filed with the Building Inspectors at the time of the filing of the appeal. The Board of Appeals may require attendance and testimony of the Building Inspectors and the Town Engineer at its discretion. The attendance of the applicant or his agent is required at all hearings, and without such attendance the Board of Appeals may dismiss or adjourn the application at its discretion.

(d) The Board of Appeals shall decide upon the appeal within 62 days after the conduct of the public hearing.

(3) Expiration of variance. It shall be deemed a condition of each variance granted that meaningful construction or actual use must be commenced within one year of the date the variance is granted.

(4) Reapplication. An application for any variance or permit which has been denied by the Board of Appeals may not be resubmitted to the Board of Appeals for a period of one year from the date of such decision. The Zoning Board of Appeals may, upon the presentation of new facts, entertain a reapplication before the expiration of the aforesaid one-year period, but only upon a unanimous vote of all the members of the Board of Appeals then present at such reapplication. Prior to the hearing of such a reapplication, all notices required to be given at an original hearing must also be given.

[Added 2-4-1999]