§ 112-24. Zoning Board of Appeals., Chapter 112. Zoning, Code of Ordinances, Williamsville

Creation, appointment and organization.

(1)

A Zoning Board of Appeals is hereby created and its Chairperson shall be designated by the Board of Trustees. The Board shall consist of five members appointed by the Board of Trustees in accordance with § 7-712 of the Village Law of New York State.

(2)

Consistent with Village Law, the Board of Appeals shall determine its own rules of procedure, and all of its deliberations, resolutions and orders shall be in accordance therewith.

(3)

Alternate Zoning Board of Appeals member. The position of alternate Zoning Board of Appeals member is hereby created for purposes of substituting for Board members in the event that a Board member is unable to serve because of a conflict of interest or for any other reason. The Village Board shall have the power to appoint up to two alternates. The Zoning Board of Appeals Chairperson may designate an alternate or alternate member(s) when such member(s) is/are unable to participate for the reasons set forth herein. Such alternate member(s) shall have all the powers and responsibilities of such member(s) of the Zoning Board of Appeals. Such designation shall be entered into the minutes of the initial Zoning Board of Appeals meeting at which the designation(s) occurred.

Powers and duties. The Board of Appeals shall hear and decide appeals from and review any order, requirement, decision or determination made by an administrative official or board charged with the enforcement of any local laws adopted pursuant to this chapter. It shall also hear and decide all matters referred to it upon which it is required to pass under any such local law.

Appeals for variance.

(1)

Definitions. As used in this section, the following terms shall have the meanings indicated:

AREA VARIANCE: 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.

USE VARIANCE: 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.

(2)

Use variances.

(a)

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 above.

(b)

No such use variance shall be granted by the 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:

[1]

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

[2]

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.

[3]

That the requested use variance, if granted, will not alter the essential character of the neighborhood.

[4]

That the alleged hardship has not been self-created.

(c)

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 variance.

(a)

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 above.

(b)

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:

[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.

(c)

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.

Procedure.

(1)

The Board of Appeals shall act in strict accordance with the procedures specified by Village Law and by this chapter. All appeals and applications made to the Board shall be in writing as prescribed by the Board. Every application for an appeal for a variance shall:

(a)

Refer to the specific provision of this chapter that is appealed.

(b)

Set forth exactly the interpretation claimed or the details of the variance sought.

(c)

State the grounds on which it is claimed that the variance should be granted.

(2)

Every decision of the Board of Appeals shall be by resolution and by a majority vote of the Board. Each resolution shall contain a full record of the findings of the Board.

(3)

Meetings of the Board of Appeals shall be held at the call of the Chairperson. All meetings shall be open to the public, and public notice shall be given thereof by publication in the official Village publication at least 10 days prior to the date of the hearing. At least 10 days before the hearing, notices thereof shall be mailed to the parties involved, including the record owner of all properties within 150 feet of the affected premises.

(4)

The Board of Appeals shall keep minutes of its proceedings, showing the vote of each member upon every resolution, or if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions.

(5)

The Chairperson or Acting Chairperson may administer oaths and compel the attendance of witnesses.

(6)

Every rule, regulation, amendment or repeal thereof and every order, requirement, decision or determination of the Board shall immediately be filed in the office of the Village Clerk and shall be a public record.

(7)

Any appeal to the Board of Appeals shall stay all proceedings in furtherance of the action appealed from, except as otherwise provided in Village Law.

Special Use Permits.

[Amended 1-27-2014 by L.L. No. 1-2014]

(1)

The Board of Appeals shall hear and decide all applications for the following Special Use Permits:

[Amended 6-25-2018 by L.L. No. 10-2018; 6-24-2019 by L.L. No. 5-2019]

(a)

Accessory apartments, as defined in § 112-2 of this chapter;

(b)

Any use listed in §§ 112-15A(6)(b), 112-16A(6)(b) or 112-17A(6)(b).

(c)

Short-term rentals, as defined in § 112-2 and regulated in § 112-12A(2)(b).

[Added 11-25-2019 by L.L. No. 8-2019]

(2)

In considering a special permit application, after notice and public hearing, the Board of Appeals shall determine:

(a)

That the permit will not prevent reasonable use of adjacent properties or of properties in adjacent districts.

(b)

That the permit will not prevent the reasonable use of permitted or legally established uses in the district wherein the proposed use is to be located or in adjacent districts.

(c)

That the safety, health and welfare of the Village will not be adversely affected by the proposed permit.

(d)

That the permit will be in harmony with the intent of this chapter.

(e)

That the proposed special use conforms to all applicable requirements, conditions or restrictions provided in this chapter with respect to such special use.

[Added 11-25-2019 by L.L. No. 8-2019]

(3)

The Board, in granting a special permit, shall prescribe conditions it deems reasonable and necessary in order that the results of its action may be as nearly as possible in accordance with the intent of this chapter and the zoning district in which the property is located.

(4)

If, for any reason, the practice of the use authorized under a special permit shall fall into disuse or cease for more than six months, the permit shall expire and shall be restored only upon the granting of a new special permit.

(5)

Any application for a Special Use Permit that would otherwise require site plan or architectural review pursuant to § 112-23 shall remain subject to the requirements of that section in addition to the requirements herein.

Exceptions. The Board of Appeals may modify the exterior side yard requirements for principal buildings on deep corner lots, provided that the following findings are made:

(1)

The rear yard is at least 50 feet in depth.

(2)

Such modification will not adversely affect the adjoining property.

Lapse of authorization. Any variance, special permit, site plan approval or modification of regulations authorized by the Board of Appeals shall be automatically revoked unless a building permit conforming to all the conditions and requirements established by the Board of Appeals is obtained within 12 months of the date of approval by the Board of Appeals and construction commenced within 18 months of such approval date.

[Amended 11-23-2015 by L.L. No. 16-2015]

Violation of conditions or restrictions. Failure to comply with any condition or restriction established by the Board of Appeals in approving any variance or granting of a special permit or a modification of regulations shall constitute a violation. Such violation may constitute the basis for revocation of a variance, special permit or modification or for the imposition of further penalties.