The following is the city code establishing and empowering the ZBA
ARTICLE XI Zoning Board of Appeals (§ 179-59 — § 179-61)
§ 179-59 Creation, appointment and organization.
[Amended 11-20-1991]
A Zoning Board of Appeals is hereby created in accordance with § 81 of the General City Law. Said Board shall consist of seven members, appointed by the Mayor for a term of three years and subject to removal for cause after public hearing. The Mayor shall designate the Chairman of the Board of Appeals, while the Board of Appeals shall designate its Secretary and shall prescribe reasonable rules for the conduct of its affairs.
§ 179-60 Powers and duties.
The Board of Appeals shall have all the powers and duties prescribed by law and by this chapter, which are more particularly specified as follows:
A.
Interpretation: on appeal from an order, requirement, decision or determination made by an administrative official, or on request by an official, board or agency of the City, to decide any of the following questions:
(1)
A determination of the meaning of any portion of the text of this chapter or of any conditions or requirement specified or made under the provisions of this chapter.
(2)
A determination of the exact location of any district boundary shown on the Zoning Map.
B.
Variances: to authorize, upon appeal in specific cases, such variances from the terms of this chapter as will not be contrary to the public interest where, owing to exceptional and extraordinary circumstances, there are unnecessary hardships or practical difficulties in the way of carrying out of the strict letter of this chapter subject to terms and conditions to be fixed by the Board; provided, however, that no such variance shall be granted unless the Board finds that:
(1)
There are physical conditions, such as the case of an exceptionally irregular, narrow, shallow or steep lot, fully described in the findings of the Board, applying to the land or building for which the variance is sought, which conditions are peculiar to such land or building and have not resulted from any act of the applicant or any predecessor in title.
(2)
For reasons fully set forth in the findings of the Board, the aforesaid circumstances or conditions are such that the strict application of the provisions of this chapter would deprive the applicant of the reasonable use of such land or building and the granting of the variance is necessary for the reasonable use of the land or building and that the variance, as granted by the Board, is the minimum variance that will accomplish this purpose.
(3)
The granting of the variance under such conditions as the Board may deem necessary or desirable to apply thereto will be in harmony with the general purpose and intent of this chapter, will not represent a radical departure therefrom, will not be injurious to the neighborhood, will not change the character thereof and will not be otherwise detrimental to the public welfare.
§ 179-61 Procedure.
The Zoning Board of Appeals shall act in strict accordance with the procedure specified by law and this chapter.
A.
Meetings. Meetings shall be held at the call of the Chairman or at such other times as the Board of Appeals may determine. A quorum shall consist of three members, but in order to reverse a decision of the enforcement official or authorize a variance, an affirmative vote of at least three members shall be required. The Board shall keep minutes of its proceedings, showing the vote of each member upon each question, and shall keep records of its examinations and other official actions.
B.
Application and fee. All appeals and applications made to the Board shall be in writing, on forms prescribed by the Board, and shall be accompanied by a fee of $40. Every appeal or application shall refer to the specific provision of this chapter that is involved and shall precisely set forth either the interpretation that is claimed or the details of the variance that is applied for and the grounds on which it is claimed that such variance should be granted.
C.
Public notice and hearing. The Board shall fix a time and place for a public hearing on any such appeal or application and shall provide notice as follows:
(1)
By publishing at least 10 calendar days prior to the date thereof a notice in the official newspaper of the City.
(2)
By requiring the Director of Planning and Development to give notice at least five days prior to the date thereof of the substance of every appeal for a variance, together with a notice of hearing thereon, by mailing such to the owners of all property abutting that held by the applicant and all other owners within 200 feet, or such additional distances as the Board of Appeals may deem advisable, from the boundaries of the land involved in such appeal. Compliance with this notification procedure shall be certified to by the Director of Planning and Development.
(a)
The names of owners notified shall be taken as such appear on the last completed tax roll of the City.
(b)
Provided that there shall have been substantial compliance with these provisions, the failure to give notice in exact conformance herewith shall not be deemed to invalidate action taken by the Board of Appeals in connection with granting or denying of an appeal for a variance.
(3)
By requiring the Secretary of the Board of Appeals to transmit to the Secretary of the Planning Commission a copy of the notice of such hearing at least 20 calendar days prior to the date thereof. The Board of Appeals shall request that the Planning Commission submit to the Board of Appeals an advisory opinion prior to the date of such hearing. Upon failure of the Planning Commission to submit such report, said Commission shall be deemed to have recommended approval of the application or appeal.
(4)
If the land involved in the appeal lies within 500 feet of the boundary of any other municipality, the Secretary of the Board of Appeals shall also submit, at least 10 calendar days prior to the public hearing, to the Municipal Clerk of such other municipality or municipalities a copy of the notice of the substance of every appeal, together with a copy of the official notice of such public hearing.
D.
Required referral. A full statement of any appeal that meets the referral requirements of §§ 239-l and 239-m of the General Municipal Law shall also be referred to the Rensselaer County Bureau of Planning for its review. No action shall be taken by the Board of Appeals on such appeal until an advisory recommendation has been received from the Bureau of Planning or 30 calendar days have elapsed since the Bureau received such full statement.
E.
Decisions. Every decision of the Board of Appeals shall be recorded in accordance with standard forms adopted by the Board and shall fully set forth the circumstances of the case and shall contain a full record of the findings on which the decision is based. Every decision shall be by resolution of the Board, with each such decision being filed in the office of the City Clerk within 10 calendar days thereof. The Board shall notify the Building and Zoning Administrator, the Secretary of the Planning Commission and the Municipal Clerk of any affected municipality given notice of hearing of its decision in each case.
F.
Attachment of conditions. In all cases where the Board of Appeals grants a variance from the strict application of the requirements of this chapter, it shall be the duty of such Board to attach conditions and safeguards as may be required in order that the result of its action shall be as nearly as possible in accordance with the spirit and intent of this chapter.
G.
Expiration of approval. Unless construction or use is commenced and diligently pursued within six months of the date of the granting of a variance, such variance shall become null and void.
H.
Strict construction. All the provisions of this chapter relating to the Board of Appeals shall be strictly construed; the Board, as a body of limited jurisdiction, shall act in full conformity with all provisions of law and of this chapter and in strict compliance with all limitations contained therein; provided, however, that if the procedural requirements set forth in this chapter have been substantially observed, no applicant or appellant shall be deprived of the right of an application or an appeal.