2018

Town of Chenango
ORDINANCE OFFICE AND ZONING BOARD OF APPEALS REPORT
OLIVER N. BLAISE, III, ESQ.
KEEGAN J. COUGHLIN, ESQ.
 Table of Contents

1. Overview Page 2
2. Specific Questions from the Town Board and Citizens Page 3
3. ZBA Procedure Flowchart Page 9
4. ZBA Jurisdiction Page 11
5. Conditions on Variances Page 14
6. Conflicts of Interest Page 16
7. SEQRA Page 18
8. Ordinance Office Jurisdiction Page 20
9. Application for Zoning Change Flowchart Page 22
10. Ordinance Office Flowchart Page 23

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 Overview

The Town Board of the Town of Chenango has retained our firm to provide advice and

guidance regarding the Town’s Zoning Board of Appeals, the Town’s Ordinance Department, and

related issues. Throughout this process we have met with members of the ZBA, the Code Office,

Town citizens, and other members of the Town. Similar issues and concerns were raised in our

meetings with the various groups and this report will attempt to clarify a majority of these shared

concerns.

First, we would like to point out that while there are areas where the Town’s procedures

could be improved, there were no examples presented to us where the Town made significant or

alarming errors.

New York State Town Law provides the rules under which a Town may regulate planning

and zoning and the rules under which a Zoning Board of Appeals shall operate. Under Town Law

§ 261, the Town Board is empowered to create local laws and regulations regarding zoning and

planning. Town Law § 267 further states that any Town which has adopted local laws or ordinances

regulating zoning shall appoint a board of appeals. The ZBA shall consist of three or five members

and the law or ordinance creating the ZBA shall designate a chairperson of the ZBA.

This report was prepared at the request of the Town Board of the Town of Chenango. The

report uses general language and loses some of the specificity and nuance of legal language. This

report should be utilized for general guidance and educational purposes only. Specific issues or

cases that the ZBA or Ordinance staff could encounter may have different important factors and

should be discussed with the Town Attorney.

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 Specific Questions from the Town Board and Citizens

1. Does the Town need to formally designate the Code Enforcement Officer as the
Zoning Enforcement Officer if both positions do not exist in the Town of Chenango?

The Town’s Code Enforcement Office and Zoning Enforcement Officer is the

same position. There is no need to designate the Code Enforcement Officer

(“CEO”) as the Officer charged with enforcing zoning.1 This is already part of their

job description.

2. Must the Town have a formal appeal form that allows residents the right to appeal a
decision of the Code Enforcement Officer?

The Town is not required to have an appeal “form” for a decision of the Code

Enforcement Officer. However, the best practice of the Town would be to have as

much information for residents regarding appeals as possible. The Ordinance Staff

Appeal Flowchart contained in this report and the current ZBA Application Form

are good informational starting points.

3. Can the Code Enforcement Officer communicate with the Chairman of the Zoning
Board of Appeals on zoning-related matters? If so, when, during an Appeal of a
decision made by the CEO, must these communications cease when both parties are
aware that an Appeal will be heard by the ZBA?

The Code Enforcement Officer and members of the Zoning Board are permitted to

communicate regarding applications for informational purposes. However, the ZBA and

Code Office staff should be aware of the impression that their communications could give

an outside observer. Whenever possible, the ZBA should seek to avoid the appearance of

impropriety through communications that may create the impression that determinations

about a particular matter have been predetermined before the ZBA has formally met. It is

1
The titles Code Enforcement Officer, Code Officer, Zoning Officer, CEO, etc., are used interchangeably
throughout this report depending on the context of the specific discussion.

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 the best practice to ask for the Code Officer’s reasoning on an application at the public

meeting and the ZBA members have an open discussion among themselves and with the

Code Officer. The ZBA and the Code Officer shall not make determinations together prior

to a meeting.

4. Can all determinations of the Code Office be appealed to the ZBA?

No. By law, certain actions of the Code Office can be appealed to the ZBA, but those items

must be within the ZBA’s jurisdiction. Certain items, such as code violation notices or

nonconformance with site plans, must be brought to Court or the Planning Board. See the

Ordinance Office Flowchart in this report.

5. Does the ZBA need to handle all applications in a consistent manner, i.e., apply the
same tests or standards to each case?

While every application is different, the ZBA must apply the same legal standards

to each similar type of application. The facts of each individual application will

determine the result outcome of the case based on the applicable legal standard. It

is important to recognize that it is rare for the facts of any two applications to be

exactly the same. Thus, while certain cases may appear similar, and the same legal

standards are to be applied to similar types of matters (e.g., area variances), the

specific facts and circumstances of each application is what will determine the

outcome. The tests and standards can be found in the ZBA jurisdiction section of

the report.

6. Is it appropriate for the ZBA member to intervene on an applicant's behalf to help

expedite or resolve a matter before the CEO?

A member of the ZBA should not intervene with, or attempt to influence, the

administrative operations of the Code Office and its staff.

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7. Is it inappropriate for a ZBA member to tell a joke during a ZBA meeting or advise
the public that they know an applicant?

There is no law or rule that prohibits a ZBA member from making a joke during a

meeting or that ZBA meetings must be somber occasions. That being said, ZBA

meetings are serious matters for those involved with or concerned about an

application, and the conduct of ZBA members should not distract or detract from

the issues at hand.

It is not inappropriate for a ZBA member to state that they know an applicant,

particularly if that familiarity could have an impact on the Board’s deliberations.

Mere acquaintance or familiarity does not create a conflict of interest. A ZBA

member should not allow their personal familiarity with or feelings about an

applicant, or other interested party, affect their consideration of an application.

There should be open and serious consideration of whether a ZBA member’s

relationship with a person connected with a matter before it creates a conflict of

interest, either in fact or in appearance. If there is a conflict of interest the ZBA

member should recuse themselves. See the section on Conflicts of Interest in this

report.

8. Can a ZBA member introduce testimony, either verbal statements recalling a

conversation with a concerned citizens or written documentation received in support
of or against a pending matter?

Written documentation provided by a Town resident should be introduced to the

record if the Town citizen requests the ZBA member to present it. ZBA members

may share information gleaned from the public in so far as that information impacts

the character of the neighborhood where an applicant is seeking a variance.

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9. How should the question of “hardship” be handled for use variances?

The granting of a use variance on the grounds of an unnecessary hardship should

have a record that shows (1) the land in question cannot yield a reasonable return if

used only for a purpose allowed in that zone; (2) that the plight of the owner is due

to unique circumstances and not to the general conditions in the neighborhood

which may reflect the unreasonableness of the zoning ordinance itself; and (3) that

the use to be authorized by the variance will not alter the essential character of the

locality.

10. There was a concern raised about the ZBA failing to consider the necessary criteria
to approve variances.

The ZBA should consider the relevant factors of the Use and Area variance tests in

approving or denying any application for a variance. Specifically, the ZBA should

address on the record each element of the variance at issue and reach a

determination whether each criterion has been met. If necessary, a vote should be

taken to determine whether the Board, as a body, believes that each element has

been met.

11. There seems to be a lack of a clear understanding about the permanence of a Use
Variance.

A variance runs with the land. Variances may not be conditioned on who the owner

of the property is.

12. When is it appropriate for a ZBA member to interject with their own personal
opinions about a property or an application?

ZBA members’ duties involve sharing their interpretation of the factors applicable

to the applications before them. Their opinions should be sought out and shared

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 regarding specific applications. However, these decisions should remain within the

scope of the ZBA’s jurisdiction.

13. Is there a statutory period that must elapse between the acceptance of an application
for a variance and the date of the public hearing on that same matter to permit those
affected time to be notified and allow them time to attend the Public Hearing on the
matter?

A public hearing has notice requirements. See the ZBA Procedure Flowchart in this

report.

14. Is there a conflict of interest with the Town Attorney representing or advising both
the Ordinance Officer as well as the Zoning Board of Appeals? Does this pose a
problem when an appeal is brought to the ZBA? Which party does the Town
Attorney represent?

The Town Attorney represents the Town, which includes all of its various officers,

officials and boards. The Town Attorney consulting with both the Code

Enforcement Officer and the ZBA is not a conflict of interest. Decisions

concerning a particular matter or application must ultimately be decided by the

CEO or ZBA and it is the Town Attorney’s duty to advise them of the applicable

and their options thereunder.

15. Is there a protocol on who must conduct the Public Hearings for the ZBA? Should it
be the ZBA Chairman or the Town Attorney?

The Chairman of the Zoning Board is in charge of conducting the meetings. This

includes public hearings.

16. Is it appropriate to poll the ZBA Board members before a vote?

The ZBA may conduct a straw poll for informational purposes to see where its

members stand on a particular issue. It should be noted that any member of the ZBA

may move to have an actual vote following a straw poll being conducted.

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17. When the ZBA convenes for Town business and there is a quorum, does this constitute
an official meeting where a record must be kept?

When a quorum (3 or more) of the Board is present and conducts public business,

this would be considered an official meeting of the ZBA and a record should be

kept of such meeting. Characterizing a meeting as a work session does not free any

board from being subject to Open Meetings Law.

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 ZBA Procedure Flowchart

Appeal to the ZBA

1. Request for Building Permit, Certificate of Occupancy, Certificate of Compliance, etc., is

made to the Code Office.

2. Code Office determines that an application requires a variance, interpretation or special

permit. Application for area or use variance, special permit application or request for

interpretation must be made and filed with the Enforcement Official (or Municipal Clerk).

3. Notice of Appeal filed by aggrieved person or by officer, department or Town with

Enforcement Official and Board of Appeals within 60 days after order of enforcement is

filed.

4. Enforcement Official sends notice of appeal and record to the Board of Appeals.

5. Board of Appeals has reasonable time for hearing the appeal or other matter referred to it.

6. Posting of Public Notice and compliance with provisions of ordinance or Local Law,

usually publication of notice in official municipal newspaper at least five days prior to

hearing. At least five days before hearing, notice mailed to regional State Park Commission

and/or to County or regional Planning Department and neighboring municipalities as

required by section 239-m of the General Municipal Law.

 The Town should note that compliance with the County’s 30 day

requirement to receive comments from the County Planning Department

pursuant to General Municipal Law § 239-m.

7. Compliance with Open Meetings Law and State Environmental Quality Review Act

(SEQRA).

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8. Public Hearing by the ZBA – determination of environmental significance and decisions

within 62 days, unless extended by mutual consent of ZBA and applicant.

9. Filing of Decision with Town Clerk and copy mailed to applicant within five (5) business

days.

10. Aggrieved party may apply for Article 78 review by N.Y. Supreme Court within thirty (30)

days under Town Law §267-c. Note: Article 78’s typically must be brought within four (4)

months, however, for ZBA decisions it is thirty (30) days.

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 ZBA Jurisdiction

The Zoning Board of Appeals is a Board of limited jurisdiction. During our conversations

with various groups in the Town there were repeated questions on what is explicitly appealable to

Zoning Board of Appeals. The ZBA’s authority is appellate jurisdiction, which includes the power

to grant variances and the power to review the Code Officer’s determination of certain issues.

Town Law § 267-b titled “Permitted action by board of appeals” governs the jurisdiction

of the Town’s Zoning Board. Zoning Boards make three main types of decisions. The ZBA makes

decisions regarding both use and area variances, as well as interpretations of the Zoning Code and

Code enforcement officer’s decisions.

Area Variance. The ZBA has the power on appeal from the Code Enforcement Officer’s

decision. The primary consideration of the ZBA should be a balance between the benefit to the

applicant if the variance is granted against the detriment to the health, safety and welfare of the

neighborhood or community. The Area Variance test is as follows:

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 that will be

feasible for the applicant to pursue but would not require a 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; and

5. Whether an alleged difficulty is self-created.

This test is not a list of requirements. The ZBA may find that the one or more of the factors would

not favor the applicant and still grant the variance. The area variance test is a balancing test.

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However, the ZBA shall grant the minimum variance that it deems necessary to accomplish the

applicant’s goal while maintaining the character of the neighborhood.

Use Variance. Contrary to the area variance test, in order to grant a use variance the ZBA

must find that the applicable zoning regulations and restrictions have caused an unnecessary

hardship. General Municipal Law § 267-b sets forth the test for showing an unnecessary hardship.

The applicant must show that for each and every permitted use under the zoning regulations for

the particular district:

1. The applicant cannot realize a reasonable return, provided that lack of return is substantial

as demonstrated by competent financial evidence;

2. 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

district or neighborhood; and

4. The alleged hardship has not been self-created.

Similar to the area variance test, the ZBA shall grant the minimum variance deemed necessary and

adequate to address the unnecessary hardship proved by the applicant and at the same time preserve

the character of the neighborhood.

Interpretations. The ZBA’s authority is appellate only, so the ZBA’s interpretation of the

zoning code is functionally the interpretation of the Code Enforcement Officer’s determination

regarding the same. Upon the determination by the Code Enforcement Officer regarding issuance

of a building permit, or a legal nonconforming use, or whether a use is permitted under the Town’s

zoning code, a citizen may appeal those decisions to the ZBA. The ZBA’s review of these decisions

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is limited to the specific facts at hand. Due to the ZBA’s limited appellate jurisdiction, the ZBA

may not rule on things outside of appeal in front of them.

The ZBA may have some limited original jurisdiction. If a local law or ordinance gives the

ZBA original jurisdiction over something like a special use permit, then the ZBA would have

original jurisdiction over those decisions. However, the ZBA remains an administrative body and

cannot create new legislation.

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 Conditions on Variances

Throughout our discussions with the various groups, the question of what conditions may

be placed on the granting of a variance was frequently asked. There is a significant amount of case

law on the topic of conditions. The courts have continually repeated the phrase “conditions

imposed on the grant of a zoning variance … must relate directly to the property involved without

regard to its owner or occupant.” This quote portrays both of the two main rules regarding

conditions on variances.

First, a condition on the grant of a variance must be reasonably related to the property and

variance itself. There must be a rational basis upon which the variance relates to the granting of

the variance. For use or area variances, conditions relating to public safety could be permissible

if there was a rational relationship to the subject matter of the variance. Conditions such as a

business’ hours of operation, for example, would be outside the ZBA’s jurisdiction and more suited

for the Planning Board.

Second, courts have repeatedly found that a condition must be directly related to the

property involved and to the underlying purpose of the zoning code, rather than the person who

owns the property. During our meetings, various groups asked whether a condition placed upon a

variance could expire when the property is transferred to a new owner. The case law is clear that

such conditions placed upon a variance would not be allowed. This creates the common phrase

that “a variance runs with the land,” as opposed to an individual or group.

When discussing conditions to be placed on a variance there were a number of questions

about conditions that would impact site plan. The ZBA should not place conditions on the granting

of a variance for things that would be covered under site plan review. A prime example of a

condition that would be better handled by the planning board is the hours of operation of a business.

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The hours of operation should be detailed in the site plan, and it is up to the Planning Board to

make a final determination regarding the same. If the ZBA wishes to provide input on things that

may be better suited for the Planning Board it would be appropriate to have the ZBA make a

separate motion to recommend that the Planning Board consider the specific thought (e.g., a

motion to recommend that the Planning Board limit the hours of operation of a business during

site plan review). Such a recommendation would not be binding on the Planning Board, but is the

extent of influence which the ZBA may have on these types of conditions.

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 Conflicts of Interest

The question of what would represent a conflict of interest came up throughout our various

conversations with members of the Town. Conflicts of interest are governed by Article 18 of

General Municipal Law. As there are varying degrees of a conflict of interest, we cannot give

explicit advice about regarding a specific situation. These questions should be directed to the Town

Attorney at the time they present themselves.

When there is a conflict of interest the Town Official should recuse him or herself. The

clearest situation where a Town Official should recuse his or herself is when the Town Official

has a financial interest in an application or project, or their immediate family member has a

financial interest. In such a situation, there is a direct conflict of interest. Most situations, however,

are not this clear.

Town officials should also avoid the appearance of impropriety in situations where there

may not be a clear conflict of interest. The appearance of impropriety is much less clearly defined.

It is imperative that any Town Official consider how his or her actions could be viewed by an

outside party. If his or her actions may give the appearance of impropriety, those actions should

be avoided. In such cases, it is recommended that the Town Official consult with the Town

Attorney about the proper actions to be taken in order to avoid such appearance of impropriety.

As indicated above, familiarity with an individual who has a matter before the ZBA does

not necessarily give rise to a conflict of interest. Indeed, it could be difficult for many Town

Officials to discharge their duties if they were disqualified simply because they knew other citizens

of the Town. Rather, the extent and nature of the ZBA member’s relationship, along with the

nature of the matter at hand, should be examined in consultation with the Town Attorney to

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determine whether a conflict exists, or could give rise to the appearance of a conflict that would

warrant recusal. Each situation must be evaluated based on its own facts.

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 SEQRA

Any appeal to the ZBA that requires a decision of the Board requires the Board to consider

the environmental impact of the decision pursuant to the State Environmental Quality Review Act,

“SEQRA” or “SEQR” as it is more commonly referred. It is important to remember that it is the

best practice for a board to review the entire project to avoid repetition.

First, there should be a determination of a coordinated or uncoordinated review, meaning

whether more than one oversight body is involved (e.g., the ZBA for an area variance and the

Planning Board for site plan review). If an applicant will only be in front of one board, for example

the ZBA for an area variance on a residential property, then there is no need for a determination

on coordinated review. The ZBA would be the lead, and only, agency. If the applicant will be in

front of both the Planning Board and the ZBA, the boards should discuss which will be lead agency

if they are doing a coordinated review, or if they will be doing an uncoordinated review.

A coordinated review is when the Town does SEQR review once for a project with one

lead agency, and other agencies who are involved defer to the lead agency’s SEQR determination.

It is recommended that an agency who is not the lead agency moves to declare the other agency as

lead agency prior to the lead agency’s determination. An uncoordinated review is when there are

multiple lead agencies who each conduct an environmental review for the purposes of SEQR.

Following the declaration of lead agency it will be required that board to determine if the

action which the board will be taking is a Type I action, Type II action, or an unlisted action under

SEQRA. This determination is made on a case by case basis pursuant to both the statute and

regulations regarding the same.

After determining the type of action the board will need to complete an environmental

review to make a determination of significance. In order to approve an action the board must issue

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a “negative declaration” under SEQRA, meaning that the project will not negatively impact the

environment. This can be done via motion. A determination for the purposes of SEQRA is

supposed to be made prior to any board action.

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 Ordinance Office Jurisdiction

Perhaps the most common issue in our discussions concerned the jurisdiction of the

Code/Ordinance Office. The Ordinance Office of the Town of Chenango has jurisdiction over a

significant amount of both local and state regulations. For each of these regulations there may be

a different appellate authority. During our conversations with various groups of the Town there

was some confusion as to what determinations and actions made by the Ordinance Office were

appealable to the ZBA, and what the proper appellate authority is. This section, in addition to the

Flow Chart titled “Town of Chenango: Ordinance Office,” is an attempt to clarify this area of

confusion.

The Town of Chenango Ordinance Office and Code Enforcement Officer are effectively

enforcing rules from three separate sources of law: the Town of Chenango Code, the NYS Building

Code, the NYS Property Maintenance and Fire Code. Each of these sources of law have distinct

appellate authority. However, rather than have separate officers to enforce each type of law, it is

commonplace for a municipality to have a Code Enforcement Officer handle all of them.

Within the Town Code there are general code violations and zoning rules. When the

ordinance officer is making a determination under the local zoning code, the ZBA as outlined in

the section ZBA Jurisdiction will govern the appeal process. However, if the ordinance officer is

making a determination under the NYS Building Code, the ZBA would not be able to hear any

such appeal. In order to appeal such a determination, an applicant would need to apply for an

interpretation or variance to the Department of State Division of Code Enforcement and

Administration Regional Office. For the Town of Chenango, such appeal would need to be directed

to the Syracuse Regional Office.

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 In the Town of Chenango the Code Enforcement Officer is also empowered to issue

citations for violations of the Town Code and the NYS Property Maintenance Code. Citations

given by the Code Enforcement Officer are enforced in Town Court. However, it should be noted

that there are specific remedies which the Town may wish to seek that require enforcement in the

NYS Supreme Court. Only the Town Court (or Supreme Court in certain situations) has the

jurisdiction to determine whether a provision of the Town or State Codes have been violated, and

determine punishments, such as fines or jail time, for such violations. In essence, the ZBA decides

whether some should be allowed to do something, and the Court decides whether someone should

be punished for something they have already done.

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Citation: Zoning, Land Use and Environmental Law: New York Lawyers’
Practical Skills Series. Michael E. Cusack, Esq., John P. Stockli, Esq., Herbert A.
Kline, Esq. Professor Nicholas A. Robinson, and Professor Philip Weinberg 2015-
2016

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 Town of Chenango: Ordinance Office

Denial: Town Code Issue Appearance ticket

Denial:
NYS Building Code Issue

ZBA: Town Court

Area Variance or
Interpretation
Department of State Division of
Code Enforcement and
Administration Regional Office

Denial: non-permitted use

Special Permit

ZBA: Use Variance

Site Plan Application
Check Local Law: likely ZBA
or Planning Board

Planning Board

Disclaimer: This Flow Chart is to be used as a general guideline. The enforcement

officer should reference each section of law under which a denial, notice of
violation, or citation is issued and provide the applicant, or defendant with notice
of the proper appellate procedure.

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