Powers & Duties of the Zoning Board of Appeals

Presented by:Judith Breselor, AICP

Executive Director, NYPF&

T.J. KennedyAssistant Planner, NYPF

600 Broadway - #1Albany NY 12207

518-512-5270www.nypf.org

What are the Powers and Duties the ZBA?

• A quasi-judicial body

• Appellate jurisdiction

• Independent of the governing body– (ie: Cairo Town Council)

What is a Variance?

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

• Should be granted infrequently

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

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, and5. There is a self-created

difficulty

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?

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

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

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

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

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

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 land—not the owner

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?

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?

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.

Additional RequirementsStatutes 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 orproposed)

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 County’s Recommendation)

Decisions and Appeals

Board decisions should:review and approve, approve with

modifications or disapprovebe understandable, specific, detailed and in

writingAppeals of decisions are taken to State

Supreme Court in an Article 78 proceeding or Declaratory Judgment proceeding.

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.

InterpretationsThere are two types of appeals:

InterpretiveVariance

In the interpretive appeal, the appealing party claims that the enforcement officer’s decision was wrong and the appellant is seeking a reversal of that decision.

The ZBA’s 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.

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.

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)

Other Issues You Need to Know

Which board does what?QuorumWorkshop Vs. MeetingHostile PublicEthics/ConflictsSmooth Meetings

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.

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 boardDiscussion at a Workshop Meeting includes gathering of information to help the board make a better decisionNo 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 decisionNEVER tell an applicants that a project will be approved or disapprovedDo not participate in ex-parte communication (this isn’t time to listen to neighbors or those impacted by the project)

Hostile PublicOne Person Only Can Speak and Must State

their Name and AddressDo 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

Ethics/Conflicts of InterestGeneral Municipal Law, Article 18:1. 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.

2. Prohibits a public officer from soliciting, accepting or receiving any gift valued at $75 or more.

3. Requires applications that need board’s approval to disclose any interest in the application possessed by any public officer, employee and extended family.

4. Requires municipalities to adopt local code of ethics

Approaches to Ethics Avoid any appearance of improprietyConflicts of interest that are pecuniary & involve

family require recusalLocal officials may still submit applicationsAlternates help in cases of recusalDon’t announce position on projects before record

is closed & all facts are inAvoid ex parte contacts, but if they occur, put in

the record

Smooth Meetings

Thorough, clear agendasWell-written notification and materials

for the publicClear meeting procedures An opportunity for public inputAn enforceable policy and the consistent

will and means to enforce it

SEQRSEQR (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.

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.

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.

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.

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”

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.

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 officer’s act alone allows the action to proceed.

Type I or Unlisted 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.

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 II

SEQRA Action Type:

SEQRA Process

Flow Chart

Provided byNYS DEC

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.

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.

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.

Conditioned Negative DeclarationA 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.

Additional CriteriaDEC 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.

Other Reviews & Approvals: Who Does What?

• Interpretations – ZBA

• Site Plan Approval – Planning Board

• Subdivision – Planning Board

• Local Laws – Only the Legislative Body

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)

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.

THANK YOU!

New York Planning Federation600 Broadway, Suite 1

Albany, New York 12207Office: (518) 512-5270Fax: (518) 512-5270http://www.nypf.org