1. PLANNING AND ZONING BOARDS: ROLES AND FUNCTIONS Sullivan County Division of Planning and Environmental Management Sullivan County Government Center 100 North Street Monticello, New York 12701 TEL: 845-807-0527 Fax: 845-794-5538

2. Overview of the Boards: What They Are Not and What They Are ► WHAT THEY ARE NOT:  Planning and Zoning Boards of Appeals cannot and do not regulate a business.  They cannot and do not look into how a company or proposed company or business operates.  They are not legislative bodies. ► WHAT THEY ARE:  The focus of Planning and Zoning Boards of Appeals is this: How the parcel is being used.  Their focus is the land use and zoning. Period. - Cannot regulate form of ownership. - Cannot legislate. - Cannot legislate.

3. Planning Boards and ZBA: Membership ► Planning (PB) ► Membership-PB must have either 5 or 7 members ► Where a municipality lies in agricultural district-1 member can represent the farming community and may be appointed to the PB ► Alternates are recommended and can be appointed by the Town Board ► No Town Board member can be a member of a ZBA or PB- liaisons ► ZBA ► Membership-minimum of 3 members-maximum of 5 ► Alternates are recommended

4. Issues Applicable to Creation and Composition of PBs and ZBAs ► Can the size of the boards be increased or decreased?  Yes, but minimum number of members should be 5 for PB and 3 for ZBA. ► Can Board members be removed?  Yes. However, the Town Board should first develop and approve a policy for removal. The policy can focus on cause reasons, such as lack of attendance and or lack of training. The policy must also stipulate a fact-finding hearing using applicable cause reasons developed and approved by the town board.

5. Issues Applicable to Creation and Composition of PBs and ZBAs (cont.) ► Can Training and Attendance be Required? ► In terms of training, NYS law now requires a minimum of 4 hours of training. So, at a minimum boards need 4 hours of training per year. ► Town Board Decides:  What Additional Training is Needed Beyond the 4 Hours.  What Training Can be Credited for PB ZBA members.  How Training Hours will be Recorded for Board Members

6. Open Meeting Law and PBs and ZBAs ► Must a PB and ZBA comply with State Open Meeting Laws?  Yes. Furthermore, workshops must be open to the public if majority of either board is present.  Must always comply with FOIL. What Matters are Appropriate for Executive Sessions?  Can recess from Public Meeting for Executive Session for: - Proposed or Pending Litigation: Intent is to discuss litigation strategy. - Employment History, Medical, Financial and Credit of a Person or Corporation. - Purchase or Sale of Real Property-Rationale is the Extent to Which Publicity Impacts the Value of Real Property

7. Open Meeting Law and PBs and ZBAs ► Good Sources for Open Public Meetings Law and Executive Sessions are the Committee on Open Government website: ► http://www.dos.state.ny.us/coog/Right_to_know.html http://www.dos.state.ny.us/coog/Right_to_know.html ► Robert Freeman, Executive Director Committee on Open Government Committee on Open Government NYS Department of State NYS Department of State One Commerce Plaza One Commerce Plaza 99 Washington Avenue 99 Washington Avenue Albany, NY 12231 Albany, NY 12231 Tel (518) 474-2518 Tel (518) 474-2518

8. The Oath of Office ► Board members must take an oath of office with the municipal clerk ► According to the NYS Department of State, the oath is as follows:  “I do solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution of the State of New York, and that I will faithfully discharge the duties of the Office of [Planning Board member or ZBA Member], according to the best of my ability.” ► Section I, Article XIII-NY Constitution

9. Appointment and Role of Chairperson ► Appointment ► Appointment by the Town Board or Village Board ► If none is appointed, the boards (PB or ZBA) should elect a chairperson ► It is a good idea to elect a vice chair as well. ► Role ► Be able to run the meeting ► Be a good facilitator and keep the meeting on track ► Prepare the agenda ► Can make motions to vote ► Understand your board’s powers and focus ► Liaison with the Town Board ► Signs and Supervises filing of documents

10. The Role of ZBA and Planning Boards ► ZBA: ► Grants Interpretative and Variance Relief ► Interpretations are made on the town zoning regulations. Here, the ZBA will either affirm, reverse, or modify a CEO’s decision. ► Variances are based on the standards of proof contained in the state statute 267-b of NYS Town Law. ► Planning: ► Oversees Site Plan Reviews ► Conducts Subdivision Reviews ► Conducts Special Permit Reviews and Grants Special Use Permits (SUP) ► Grants and Advises on Sign Permits ► Advises on Historic Preservation ► Advises on Architectural Review

11. Basic Questions to Consider ► Do you know the difference a comprehensive plan and zoning and how they complement each other? ► Do you have an updated zoning map of your municipality? ► Do you know your zones in your municipality? ► Do you understand how zoning regulates your decisions?

12. Making the Most of the Meeting ► Ensure that You are Reviewing Applications for Projects Allowed by the Zoning.  Have the zoning officer make a use determination first ► Have Clear Submission Requirements. ► Request Enough Copies From the Applicant so Board members can Review in Advance of the Meeting

13. Common Terms ► Determination of Significance-a conclusion by lead agency as to whether or not an action under review will have at least one significant adverse environmental impact. ► Minutes-the historical record of an officially convened meeting of an organized public body. ► Records-the assembled facts. ► Decisions-Actions taken by the board which includes the motion that was passed, the type of vote cast by each board member, and any conditions imposed. ► Findings-are the reasons for a denial or approval and may also support why a condition is imposed, and they can include analysis which applies to laws and facts leading to conclusions.

14. Subdivision: Key Issues ► Intent of the Review: To Ensure Proposals for the Division of Land Include Adequate Provisions for Access, Sewer and Water, and Other Essential Services. ► Subdivision review must be coordinated with SEQR. Not Segmentation!

15. Subdivision Review: Key Things Look For ► Review regulates design and improvement of the proposed subdivision.  What the lot configuration like?

16. Subdivision Review Powers of the PB

17. Subdivision Review: Things to Consider ► Review regulates design and improvement of the proposed subdivision.  Where’s the storm water going? Is it going off-site?  How much impervious surface is being presented?  What are the slopes like? Where are the building footprints in relation to the slopes?  What’s impact on community character?

18. Subdivision Review Powers of the PB ► For 2 Lot Subdivisions, Think ahead About how the Subdivision of a Parcel Could Adversely Impact a Future Landowner?  Can the subdivision of a parcel make a secondary use become a primary use complicating things for a new owner?

19. Subdivision Review Powers of the PB

20. Subdivision Approval Process: County Referral ► When Do You Refer?  It is best to send a “full statement” after you complete your determination of significance. ► What is a ‘Full Statement”?  All materials required of the applicant by the PB, which includes the completed Environmental Assessment Form (EAF) and the DEIS if a “pos dec” is made by the PB.  Typically a referral form is sent to the municipalities to assist in preparing a “full statement” (see referral form) ► The time period for the PB decision does not begin until the county has been heard from or thirty days have elapsed from the date of the referral.

21. Subdivision Approval Process: County Referral and Waiting to Act ► Referring body cannot act until one of the following occurs:  The referring body receives the recommendations from the county, or  Thirty days have passed after the county’s receipt of a full statement ► Note: Please do not take action until you receive the county’s recommendation.  Doing this can compromise the integrity of the review process and make you vulnerable to an Article 78 proceeding.  Be on the safe side and wait for the recommendation.  Recommendations can be very helpful in giving you insights about the project.

22. Voting: When the PB Disagrees with the County Recommendations ► If the county planning division or county planning board recommends disapproval of the application, or approval with modifications, the PB, if they choose, may only act contrary to that recommendation by a majority plus one vote. ► If the county approves with modifications with a series of recommendations, the board needs to vote on each recommendation, and the “majority plus one rule” applies if the PB disagrees. ► PB resolution must articulate reasons why voting contrary to county recommendation

23. Site Plan Regulations: Requirements of the Applicant ► At a minimum, require the applicant to submit the following materials:  A complete site plan, which is a rendering (drawing) that typically shows: ► Lots ► Parking ► Means of Access ► Signage ► Landscaping ► Location and dimension of buildings ► Architectural features ► Adjacent land uses ► Utilities ► Narrative statement of how the site’s development will avoid or mitigate adverse impacts on adjacent land uses.

24. Site Plan and Subdivision Reviews: Consideration of Other permits ► The Planning Board will Also Need to Determine if the Applicant Must Receive Permits and Approvals from other Collaborating Agencies:  NYS DEC (Full EIS Compliance, Stormwater Management);  NYS Department of Health (i.e., Public Water Supply, Sanitary Facilities);  Sullivan County Division of Public Works (Driveway Permit);  Town Highway Department (Driveway Permit).

25. Zoning Board of Appeals: Why Variances and What are the Factors to Consider When Reviewing a Variance Request ? ► Two types of variances are considered by the ZBA: (1) use variances and (2) area variances. State statute spells out precise factors that the ZBA must consider in deciding whether to grant these variances. ► State statutes impose a heavy burden on an applicant seeking a use variance since the applicant is requesting that the ZBA alter a local legislature’s determination that a specific use is not appropriate in the zoning district. ► In terms of an area variance, state statues require the ZBA to apply specific criteria in balancing the benefit of the variance against the impact on the area.

26. Zoning Board of Appeals: Factors to Consider When Reviewing a Use Variance ► Use variances allow the landowner to use their land in a way not permitted under the zoning law. ► To obtain a use variance, the applicant needs to demonstrate to the ZBA that the applicable use provisions in the zoning code cause an unnecessary hardship.

27. Zoning Board of Appeals: Factors to Consider When Reviewing a Use Variance (cont.) ► To prove unnecessary hardship, the applicant must establish that the requested use variance meets all four statutory conditions: 1.The owner cannot realize a reasonable return on the property as zoned (must demonstrate by dollars and cents). 2.The hardship must be unique to the owner’s property and not applicable to a substantial portion of the zoning district. 3.Granting the variance will not alter the essential character of the neighborhood. 4.The hardship is not self-created. If it is – a complete bar to relief (Example of self-created hardship – purchasing property with knowledge of zoning restrictions in advance).

28. Zoning Board of Appeals: Factors to Consider When Reviewing an Area Variance ► Area variances provides relief to the landowner of a parcel that has an unusual configuration or unique circumstances that prevents development of the property in compliance with the dimensional provisions of the law. ► Examples of areas variances are: height of buildings, lot coverage, setbacks requirements. ► In granting an area variance, the ZBA must find that the benefits of the requested variance to the applicant outweigh the detriment it will cause to the health, safety, and welfare of the neighborhood.

29. Zoning Board of Appeals: Five Factors to Consider With an Area Variance ► The ZBA must weigh the benefits of the requested area variance to the applicant against the potential negative impact of the neighborhood using the following five factors as set forth in the statue: 1.Will an undesirable change be produced in the character of the neighborhood or a detriment to nearby properties be created by the granting of an area variance? 2.Can the benefit sought by the applicant be achieved by some method, feasible for the applicant to pursue, other than an area variance? 3.Is the requested variance substantial? 4.Will the proposed variance have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district? 5.Is the alleged difficultly for the applicant self-created?

30. Case Examples: Review and Discussion ► A doctor wishes to practice out of his home which is in a residential area. The zoning ordinance prohibits businesses in such a zone. What type of variance does the doctor need? ► A business owner in a business district is looking to expand parking and has found an adjacent property for sale in a residential zone. The business owner wishes to convert the lot for parking. What does the business owner need to do? ► The owner of a corner lot wishes to construct a fence six feet in high around the property. The Code specifies that fences may not exceed six feet in height nor be placed closer than 35 feet from the street right of way if the height exceeds three feet. However, the proposed fence would be 20 feet from the right of the street. What type of variance is required? ► The Planning Board wants to stop projects from appearing on its agenda for uses it doesn’t believe are allowed. What should the chair of the Planning Board do?

31. Article 78 Proceedings: Concerns of the Courts ► Are Decisions Made on a Rationale Basis? ► Did the Board Base Their Decision on Substantial Evidence? ► Was the Process Followed in Accordance with GML? ► Did the Board Improperly Rely on Community Pressure in Making a Determination?

32. Need for Coordination Between the PB and ZBA ► On large scale projects that require site plan review, SEQRA, and variances: 1.In this case the PB takes lead, but coordinates with ZBA. 2.IF “pos dec” PB spearheads the SERQA process and when FEIS is deemed complete then PB can refer variances to ZBA. 3.If a referral is required, be sure to coordinate with the county (planning division or county planning board) on the PB referral and the ZBA referral.

33. Need for Coordination Between the PB and Town Board ► On subdivisions that require road names (Note: If three or more parcels share the R-O-W, a road name is required). Failure to coordinate on this can delay 911 addresses. 1.Before approval is granted on final plat, the PB Chair should notify the Town Supervisor that the town board needs to assign the road names. 2.Prior to the town board meeting, Town Supervisor should contact county planning to see if proposed road names are duplicates. Contact Lynn at 807-0133. 3.Town board approves road names via resolution, and faxes or e- mails resolution to county planning division (fax to the attention of Lynn @ 794-5538 or planning@co.sullivan.ny.us ). planning@co.sullivan.ny.us 4.After town board approval, PB can now approve final plat. 5.After PB approves final plat, building inspector can fax the site plan and the building permit to Lynn for 911 address assignment.