Zoning Board

RELAX & TAKE A DEEP BREATH

A Building Inspector has just informed you that it is not possible for him/her to grant you a building permit.  Do you have to do without that needed bedroom, the larger kitchen or the patio roof?  The answer is “Not Always”!  Based on 1985 & 1986 figures, one building permit in every ten was denied for various reasons. This pamphlet will help explain the reason the permit request was denied and the procedure necessary to possibly receive permission to accomplish your project.

THE BUILDING INSPECTOR DID NOT LISTEN TO THE REASONS WHY I NEEDED MY REQUEST GRANTED

It is not that the Inspector didn’t listen or didn’t care about your problem!  By Law the Building Inspector has to enforce the Zoning Law as written and does not have the power to grant permits based on one’s personal needs.  In some cases, the Inspector may suggest alternatives that can be approved.

WHY CAN’T I DO WHAT I WANT TO DO?

In most cases, it is one of three reasons that your request was denied. The reason was probably one (or more) of the following items:

The Village of Johnson City Zoning Ordinance requires certain setbacks from property lines to structures on the lot. Also, accessory structures, such as sheds and pools, have to have a minimum setback from the principal building or other accessory structures. In many cases, the existing structures on the lot do not meet the current Ordinance.

Each parcel of land in the Village of Johnson City is zoned based on a comprehensive plan.  The comprehensive plan portrays the Village’s future land use scheme and in doing so, may conflict with current uses on the lot.  It is possible that a residential use currently exists on a parcel designated on the master plan and zoning map as commercially zoned property.  Since residential uses are not permitted in commercial districts a permit cannot be issued.

The Building Inspector has to enforce the Zoning Ordinance as he/she reads it.  It may be possible for you to read the same section of the Ordinance and disagree with the Inspector’s ruling.

WHAT CAN I DO IF I DISAGREE WITH THE INSPECTOR’S RULING?

The Zoning Board of Appeals (ZBA) is authorized to hear and decide appeals where it is alleged there has been an error in any order, requirement, decision or determination made by the Code Enforcement Officer or any other administrative official in the administration, interpretation or enforcement of this Zoning Ordinance.

Appeals of administrative decisions may be filed by any person aggrieved by the Code Enforcement Officer or other administrative official’s decision or action. The ZBA is authorized to make determinations about whether individuals filing appeals are aggrieved by the decision or action. Complete applications for appeals of administrative decisions must be filed with appropriate personnel in the Code Enforcement Office. Appeals of administrative decisions must be filed within 60 days of the date of the decision being appealed.

The filing of a complete notice of appeal stays all proceedings in furtherance of the action appealed, unless the Code Enforcement Officer certifies to the ZBA, after the appeal is filed, that, because of facts stated in the certification, a stay would cause immediate peril to life or property. Upon receipt of a complete application of appeal, the Code Enforcement Officer or other administrative official whose decision is being appealed must transmit to the ZBA all papers constituting the record upon which the action appealed is taken.

THE INSPECTOR SAID MY PROPERTY WAS NONCONFORMING.  WHAT DOES THAT MEAN?

“Nonconforming” simply means that the existing structure or use of the property does not meet the current laws. Any legal use or building established before April 4, 1984 may be nonconforming; you may continue to use your property as it currently exists.  However, in almost all cases, if you want to increase the size of the building, change the use, or add structures to the lot, the property then must conform to current regulations, or you will require a variance from the Zoning Board of Appeals.

WHAT IS AN AREA VARIANCE? & WHEN CAN THE BOARD OF APPEALS ISSUE ONE

In the case of an “Area” variance, the Applicant is seeking modification of dimensional standards, such as yard requirements; setback lines lot coverage, or bulk requirement, so that the property may be utilized for one of the uses permitted by the Zoning Ordinance. The Zoning Board 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. In making such consideration, the Board shall also consider;

• 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 alternative method, feasible for the applicant to pursue, other than an area variance.
• whether the requested variance is substantial
• whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood
• 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.

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.

WHAT IS A USE VARIANCE AND WHEN CAN THE BOARD ISSUE ONE

A use variance gives permission to the Applicant to use the property contrary to the uses permitted in the Zoning Ordinance. 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. 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; and;
4. the alleged hardship has not been self-created.

The Zoning 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 proven 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.

THE BURDEN OF PROOF IS ON THE APPLICANT

Applicants should be prepared to present facts (letters, photos, financial statements, testimony, etc.) that will prove to the Board of Appeals that the above listed considerations will be in harmony with the general purposes and intent of the Zoning Ordinance, and will not be injurious to the neighborhood, impair the development of adjacent properties, or be detrimental to the public welfare. That the hardship or problem is real and cannot be practically resolved in any other way than be a variance.

CONCLUSION

The Zoning Board of Appeals CAN help you and grant relief from Strict Application of the Zoning Laws, but only if you do your homework and clearly demonstrate your hardship/difficulty and sufficiently address the considerations outlined above.

IMPORTANT NOTE

This information is not intended to provide a comprehensive outline of all the various aspects of Zoning Laws and the Zoning Board of Appeals. It is merely intended as a simple orientation for the Applicant with which to get started, and to briefly explain the process involved in applying for a variance. Additional more specific legal assistance can be obtained from an Attorney versed in Municipal Law and Zoning.

If you have any questions, please feel free to contact the Building Official at (607) 797-1021, or the Clerk to the Zoning Board at (607) 797-9098.