The Varick Zoning Board of Appeals, like ZBAs in every town in New York, was initiated to provide residents with a process to review a decision relative to the use of a citizen’s property. There are two basic reasons a person might file an appeal: First the person may disagree with a decision the Code Enforcement Officer has made. This is generally referred to as interpretation. Second the appealing party may believe that an exemption to the zoning laws should be made for his or her property. This is referred to as a variance. There are two types of variances: a use variance and an area variance.
The process for filing an appeal begins with an applicant, or her representative, filing an appeal application providing information on (1) how the applicant was “aggrieved” by an actual decision or action taken by or the Code Enforcement Officer or (2) if a property owner disagrees with an interpretation in the Code made by the Code Officer. An application must be filed within 60 days of the respective decision. For Area Variances, use this form. A person is “aggrieved” if her property value is affected negatively by the action. A neighboring landowner may also be an “aggrieved party” if she believes the decision in issuing a permit was improper, and will negatively affect her property value.
Once the ZBA receives the application it will schedule a public hearing and give required notice to the public (via newspaper) and to adjacent neighbors (via letter). This generally means that the appealing party must allow approximately 2-3 weeks for the hearing to take place.
At the hearing the applicant may submit written evidence and/or argument to support her case. It is helpful for the applicant to submit this with her application. At the hearing the ZBA will offer the applicant, or her representative, the opportunity to present a case for relief. The applicant may personally testify, call witnesses, or submit written evidence including drawings, survey, graphics. The ZBA will ask questions and discuss specifics of the case with the applicant.
The ZBA may then close the public hearing or leave the hearing open for further input. Within 62 days the ZBA will make its decision to affirm, reverse, deny or modify the previous decision. In making their decision the ZBA is required by law to base its decision on all definitions and other provisions of the most recent Varick Zoning Code and on several criteria as cited below.
For a decision on an interpretation: the applicant must prove that the enforcement officer’s decision was incorrect based on the Code. The ZBA will consider whether the decision is consistent with prior rulings of the same provisions; and will use its best judgement as to the Town’s original intent in enacting the provision.
For a decision on a use variance, that is, permission to establish a use of property not otherwise permitted in the zoning district, State law requires the applicant to show “unnecessary hardship” by meeting all of the following:
- That the property is incapable of earning a reasonable return on initial investment if used for any of the permitted uses;
- That the property is being affected by unique, or at least highly uncommon circumstances;
- That the variance, if granted, will not alter the essential character of the neighborhood; and
- That the hardship is not self created.
For a decision on an area variance, that is permission to build in an otherwise restricted portion of the property (such as in the required front, side or rear yards or above the required building height or in excess of the lot coverage regulation) then State law requires the applicant to show that the benefit the applicant stands to receive from the variance will outweigh any burden to health, safety, and welfare that may be suffered by the community. State law requires the ZBA to take the following factors into consideration in making its determination:
- 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;
- Whether the benefit sought by the applicant can be achieved by some feasible method that doesn’t require a variance;
- Whether the requested variance is substantial;
- Whether the proposed variance will have an adverse impact on the physical or environmental conditions in the district;
- Whether the alleged difficulty is self created.
Whether the ZBA grants a use or area variance, State law requires the ZBA to grant the minimum variance necessary to provide relief, while at the same time taking care to protect the character of the neighborhood and the health, safety, and welfare of the community. For these same reasons the ZBA may also impose reasonable conditions on the grant of any variance.
Mail or deliver the completed application and attachments with a check for $50 made out to the Town Of Varick to the Code Officer or the Town Clerk
For further information:
Susan Ottenweller, ZBA Chair sdottenwelller@gmail.com 585-749-0171