Who are they—the members of the Zoning Board of Appeals—and what do they do?
The members of the ZBA are all appointed by the Town Board. There is five regular members plus one as an alternate member. Each serves a five year term, one term expiring each year.
The chairman or chairwoman is appointed each year as chair. The alternate is a sixth member and only votes when a regular member does not.
The absence of a regular member is the most common reason.
However, if a regular member chooses not to vote because of a potential conflict of interest, then the alternate would step in.
The intent of having the alternate hopefully eliminates the possibility of only having a four member vote, which in certain situations could lead to a two-two tie vote… which is essentially the same as a denial.
What don’t they do?
The ZBA does not make any zoning ordinance rule change. Nor can they change the zoning district maps either.
Only the Town Board, as the legislative body of the town, has the authority to change zoning maps or ordinances. They have no enforcement powers.
They do have the ability to set conditions to an approved application, but no enforcement.
Do all towns have a ZBA?
No, not necessarily. Only towns that have a zoning ordinance will have a ZBA.
State law requires a town to have a ZBA if the town has adopted a zoning ordinance.
This is basically a relief valve for the state Supreme Court system and keeps local disputes, local.
Very few cases actually go to the state court system, maybe one in a hundred or less.
Usually things can be resolved on the local level, even if the applicant has to come back to the ZBA a number of times.
This is all about negotiation, understanding the perceived negative impacts and then proposing ways to mitigate or minimize those issues.
How does the ZBA make a decision?
There is a standardized method of review recognized throughout the state. It’s called “the balancing test.”
The ZBA shall balance the benefit to the applicant to the detriment to health, safety & welfare of the neighborhood or community.
It’s kind of this warm and fuzzy review process that has developed over the years to help a ZBA in the review process.
There are five major points of criteria in the Balancing test.
1. Whether the benefit to the applicant can be achieved by other means feasible to the applicant. Are there any reasonable alternatives that might reduce or eliminate the need of a variance?
2. Will the request, if approved, create an undesirable change in the neighborhood or nearby properties?
3. Is the request substantial?
4. Will the request, if approved, have adverse physical or environmental effects that cannot be mitigated?
5. Whether or not the request is self-created.
These are very interesting questions and address the most common issues that arise from most applications.
The ZBA will listen to the presentation of the application, ask questions and have an open dialog with the applicant.
Usually after the applicant has presented the request, the ZBA will ask for any comments from the audience… this process is part of the advertised public hearing.
Everyone is given a change to be heard. Sometimes this leads to more dialog with the applicant. Once the ZBA has exhausted all comments and the applicant has nothing else to offer, the public hearing is closed.
The ZBA then discusses everything, and begins the process of going through each of the five points of criteria mentioned above, one at a time.
Do decisions automatically create precedence?
No. Each application will be considered on the merits of the request. Each situation will be different.
The site, neighborhood, the request and the specific circumstances will always have differences.
The potential impacts will differ from one application to another.
This is often misunderstood by applicants. Just because someone was approved or denied does not mean the same thing will happen for another application.
How important is it to understand the Balancing Test?
Very important. This is how all ZBA applications are considered, by balancing the benefit to the applicant against the detriment to the neighborhood and/or community.
Once the applicant understands how the board must look at the request, they will be better enabled to understand some of the potential issues that may arise.
How long is a variance good for?
Forever… unless conditioned otherwise by the board’s decision. The variance will ‘run with the deed.’
However, the variance only pertains to that specific request identified and addressed in the application.
It does not apply to any other issue or project on that, or any other property. A variance does not ‘change the zoning.’