BOARD OF ZONING AND BUILDING APPEALS June 13, 2002 Minutes
Members Present: Ashlin Caravana, Trudy Knox, Eric Stewart (Chair) Members Absent: Greg Sharkey, Lon Herman (Vice Chair) Also Present: Seth Dorman, Village Planner Visitors Present: Jim Gorry Citizens’ Comments: None. Swearing In of Witnesses: Not necessary as there are no applicants or anyone to speak to them
Proposed Changes to the Zoning Code
Jim Gorry started by answering some general questions. The BZBA is allowed to do research on their own on questionable cases. Bring it in and put into the record. The Law Director can help in questionable cases. Ms. Caravana asked whether we are quasi-judicial and was told we are because of our procedures and our powers. “You are not sovereign authority and you are not legislative. Village Council delegates authority and you then apply your statutory criteria.” She asked whether we have a written set of procedures and Mr. Dorman said there’s nothing written out, but you can make your own rules. Mr. Gorry said, “You should have general rules of procedure. If you make an error and violate your own rules, then the decision can be void. You are a micro-court and there are certain procedures you should follow.” Ms. Caravana said such written rules should be reexamined once a year.
Conditional Uses: Mr. Herman wrote some questions in advance: (1) He asked for other examples of conditional use criterion, and Mr. Gorry will get these. (2) Are the criteria for conditional use the only ones? Should there be language saying these are not exclusive? Mr. Gorry said, “No, there are binding criteria for the BZBA and you use them to grant conditional uses or variances respectively. The applicant needs to know what he needs to prove and have that ready. The courts will reverse any decision and send it back if others are added. Make them broad, but people need to know what the ultimate tests are.” (3) What is UNDUE BURDEN? Is it different from BURDEN? Mr. Gorry said the definition depends on the context, so you can’t define them. You have to maximize your flexibility. Ms. Caravana thought that exacerbating an already burdensome traffic intersection will create Undue Burden of traffic congestion. (4) What are PRACTICAL DIFFICULTIES? Mr. Gorry said you have no authority to grant Use Variances, so you don’t need a definition. You only grant Area Variances— development regulation types of variances. However there are 8 tests to determine practical difficulty. (5) We generally ask applicants what they have attempted to do to avoid the necessity of getting a variance. Should that be a criterion for approval? Mr. Gorry said you cannot deny a variance because there was some other way for the owner to accomplish a variance without it. If he cannot meet criteria, he should not get a variance. He has to show practical difficulties. Mr. Stewart wanted the practical difficulty tests added to the packet the zoning inspector gives to the applicant. Mr. Dorman said applicants currently have to submit statements about how they address the variance criteria. (6) What’s the definition of UNREASONABLE? Mr. Gorry said you can’t really define it. Everyone moving into the village adds to the congestion. Ms. Caravana asked whether we are required to modify the request and add conditions and was told: “Yes, you are entitled to do so, but not required to. It maximizes your flexibility. You are only required to say that based on the information provided, this does not meet criteria.” You cannot be forced to impose conditions. Applicants go to the Planning Commission first then to the BZBA. If the BZBA imposes a minor change, it may be approved by the Zoning Inspector. The Site Development Plan gets approved first then the conditional use. Mr. Sharkey had asked a question earlier about SUBSTANTIAL changes, practical difficulties, and unnecessary hardship and Mr. Gorry said he has to show a need for both. You don’t have definitions because the Supreme Court keeps changing things. Every time they change something, you have to change your code, and it’s better to be flexible. Ms. Caravana asked whether an applicant has to meet ALL criteria or can he meet some of them. Mr. Gorry said that he does not have to meet all of them. Relative to nonconforming uses you want to phase them out, we don’t want these uses expanded. You must answer “Is it in the public interest? Will it improve the structure and improve the community?” With the recent changes to the PUD language, the BZBA is no longer involved in approving a development plan in this zoning district. Some PUDs were approved without getting approval for the site plan, but now they can’t do that because there are strict regulations. They are now called GUIDELINES, rather than STANDARDS. This adds flexibility. Mr. Gorry would not allow a PUD in a residential development. Ms. Knox asked what about a person who built something and came in for a permit after the fact? Mr. Gorry said if he does not gain approval, he must tear it down, but there are remedies including injunction and Cease and Desist. Look at it and see whether the BZBA would have approved it, or fine him for being in violation of zoning laws. Informal Discussion on Rogers Garage: Apparently the parties assigned to devise a landscape plan for a buffer as a condition of approval have been unable to agree on a plan. Because the building is on the property line, the screening has to be on the neighbors’ property. You can impose a deadline. If an agreement is not abided with, then what are you going to do? It’s hard to make two other parties agree on something. Mr. Gorry recommended the Board reconvenes to have a second hearing on this application and to make a determination on the variances.
Minutes of May 23, 2002: Postponed until the next meeting.
Next Meeting: July 11th and August 8th, 2002 Adjournment: 9:30 p.m. Respectfully submitted, Betty Allen