Town of Tuxedo, NY Zoning Board of Appeals

The Zoning Board of Appeals, on appeal from the decision or determination of the Code Enforcement Officer, shall have the power to grant use variances.

No such use variance shall be granted by the ZBA 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 ZBA that for each and every permitted use under the zoning regulations for the particular district where the property is located:

(a)

The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;

(b)

The alleged hardship relating to the property in question is unique and does not apply to a substantial portion of the district or neighborhood;

(c)

The requested use variance, if granted, will not alter the essential character of the neighborhood; and

(d)

The alleged hardship has not been self-created.

The ZBA, in the granting of a use variance, 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.

Issuance of a use variance shall be conditioned upon the applicant obtaining site plan approval from the Planning Board.

Area variances.

The ZBA shall have the power, upon an appeal from a decision of the Code Enforcement Officer, to grant area variances.

In making its determination, the ZBA 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 by such grant. In making such determination the ZBA shall also consider:

(a)

Whether an undesirable change will be produced in the character of the neighborhood or whether a detriment will be created to nearby properties by granting the area variance;

(b)

Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;

(c)

Whether the requested area variance is substantial;

(d)

Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and

(e)

Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the ZBA, but shall not necessarily preclude the granting of the area variance.

The ZBA, in the granting of an area variance, 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.

For an area variance where said variance is part of a subdivision, site plan, or special permit review that is currently, or will be, before the Planning Board, the ZBA shall submit said variance request and all associated documentation to the Planning Board for their review and comment. If the Planning Board does not provide comment upon the area variance application within 30 days of receipt of said application from the ZBA, the Planning Board shall be deemed to have waived its right to comment upon the variance.

Imposition of conditions. The ZBA shall, in the granting of use variances, area variances, and any other discretionary relief, have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed use of the property. Such conditions shall be consistent with the spirit and intent of this Zoning Chapter and shall be imposed for the purpose of minimizing any adverse impact such variance or relief may have on the neighborhood or community.

Chairperson duties. All meetings of the ZBA shall be held at the call of the chairperson and at such other times as such ZBA may determine, and a quorum of the ZBA's membership is required for any meeting. The chairperson or, in the chairperson's absence, the acting chairperson may administer oaths and compel the attendance of witnesses.

Meetings. Meetings of the ZBA shall be open to the public to the extent provided in Article 7 of the New York State Public Officers Law.

Minutes. The ZBA shall keep minutes of its proceedings, showing the vote of each member upon every question or, if absent or failing to vote, indicating such fact, and shall also keep records of its examination and other official actions.

Filing requirements. Every rule, regulation, every amendment or repeal thereof, and every order, requirement, decision or determination of the ZBA shall be filed in the office of the Town Clerk within five business days and shall be a public record.

Assistance to Zoning Board of Appeals. The ZBA shall have the authority to call upon any department, agency or employee of the Town for such assistance as shall be deemed necessary and as shall be authorized by the Town Board. Such department, agency or employee shall be reimbursed for any expenses incurred as a result of such assistance.

Appellate jurisdiction. The jurisdiction of the ZBA shall be appellate only and shall be limited to hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation or determination made by an enforcement or administrative official. Such appeal may be taken by any person aggrieved, or by an officer, department, board or bureau of the Town.

Filing of administrative decision and time of appeals.

Each order, requirement, decision, interpretation or determination of the administrative official charged with the enforcement of the Zoning Chapter shall be filed in the office of same within five business days from the day it is rendered and shall be a public record. Any failure to so file shall not affect the validity or effective date of what is to be filed.

An appeal shall be taken within 60 days after the filing of any order, requirement decision, interpretation or determination of the administrative official, by filing with the administrative official and the ZBA a written notice of appeal, specifying the grounds thereof and the relief sought. The administrative official from whom the appeal is taken shall forthwith transmit to the ZBA all the papers constituting the record upon which the action appealed from was taken.

Each appeal or application shall fully set forth the circumstances of the case, shall refer to the specific provision of the Zoning Chapter involved and shall exactly set forth, as the case may be, the interpretation that is claimed, the details of the variance or other relief that is applied for and the grounds on which it is claimed that the same should be granted.

All appeals and applications made to the ZBA shall be accompanied by a fee in accordance with the Fee Schedule of the Town of Tuxedo.

Stay upon appeal. An appeal shall stay all proceedings in furtherance of the action appealed from, unless the administrative official, from whom the appeal is taken, certifies to the Zoning Board of Appeals, after the notice of appeal shall have been filed with the administrative official, that by reason of facts stated in the certificate, a stay, would, in his or her opinion, cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Zoning Board of Appeals or by a court of record on application, on notice to the administrative official and on due cause shown.

Hearing on appeal. The Zoning Board of Appeals shall fix a reasonable time for the hearing of the appeal or other matter referred to it and give public notice of such hearing by publication in a paper of general circulation in the Town at least five days prior to the date thereof. The cost of sending or publishing any notices relating to such appeal, or a reasonable fee relating thereto, shall be borne by the appealing party and shall be paid to the ZBA prior to the hearing of such appeal. Upon the hearing, any party may appear in person, or by agent or attorney.

In addition to such published notice, and in accordance with the following procedure, at least eight days prior to the scheduled date of the public hearing, the applicant shall deliver copies of the notice in unsealed envelopes properly addressed to each property owner entitled to notice with pre-paid postage affixed. The return address on each envelope shall be "Building Department Clerk, P.O. Box 725, Tuxedo, NY 10987." The Building Department Clerk shall cause the envelopes to be sealed and deposited with an official depository of the US Postal Service. The public hearing notice to be mailed by first-class mail at least five days before the hearing to all owners of properties which lie within 400 feet of any lot line of the property for which relief is sought and to such other owners as the ZBA may deem advisable. The names of said owners shall be taken as they appear on the last updated tax roll of the Town.

Provided that due notice shall have been published in the official paper of the Town, and that there shall have been substantial compliance with the additional applicant mailing requirements of this section, the failure to give notice in exact conformance herewith shall not be deemed to invalidate action taken by the ZBA in connection with the granting of any appeal or variance.

Should any appeal involve either of the two following conditions, the ZBA shall transmit to the designated office or official a copy of the official notice of the public hearing not later than 10 days prior to the date of the hearing. The designated official for counties shall be the Clerk of the County Legislature. In villages and towns, the designated official shall be the Clerk of the municipality.

(a)

Any change in the boundaries of any district, which change would occur within a distance of 500 feet of the boundary of any village or Town, state or county road, park or other state-owned facility.

(b)

Any change in the regulations prescribed for any district, any portion of which is located within 500 feet of the boundary of any village or Town, state or county road, park or other state-owned facility.

At least five days prior to the public hearing, the ZBA shall transmit to the Planning Board a copy of any appeal or application, together with a copy of the notice of such hearing, but only for applications or appeals which require Planning Board approval or a separate application, together with a copy of the notice of such hearing. The Planning Board may submit to the Board of Appeals an advisory opinion on said appeal or application at any time prior to the rendering of a decision by the ZBA. If the Planning Board does not provide comment upon the application or appeal within 30 days of receipt of said application from the ZBA, the Planning Board shall be deemed to have waived its right to provide an advisory opinion.

Time of decision. The Zoning Board of Appeals shall decide upon the appeal within 62 days after the conduct of said hearing. The time within which the ZBA must render its decision may be extended by mutual consent of the applicant and the ZBA.

Filing of decision and notice. The decision of the Zoning Board of Appeals on the appeal shall be filed in the office of the Town Clerk within five business days after the day such decision is rendered, and a copy thereof mailed to the applicant.

GML review. Notice to regional state park commission and Orange County Planning Department. At least five days before such hearing, the ZBA shall mail notices thereof to the parties; to the regional state park commission having jurisdiction over any state park or parkway within 500 feet of the property affected by such appeal; and to the Orange County Planning Department, as required by Section 239-m of the New York State General Municipal law, which notice shall be accompanied by a full statement of such proposed action, as defined in Section 239-m of the General Municipal Law.

SEQRA. The Zoning Board of Appeals shall comply with the provisions of the State Environmental Quality Review Act (SEQRA) and its implementing regulations.

Rehearing. A motion for the Zoning Board of Appeals to hold a rehearing to review any order, decision, or determination of the ZBA not previously reheard may be made by any member of the ZBA. A unanimous vote of all members of the ZBA then present is required for such rehearing to occur. Such rehearing is subject to the same notice provisions as an original hearing. Upon such rehearing the ZBA may reverse, modify, or annul its original order, decision, or determination upon the unanimous vote of all members then present, provided the board finds that the rights vested in persons acting in good faith in reliance upon the reheard order, decision or determination will not be prejudiced thereby.

Voting requirements.

Decision of the ZBA. Except for a rehearing as set forth in Subsection N above, every motion or resolution of the ZBA shall require for its adoption the affirmative vote of a majority of all members of the Zoning Board of Appeals as fully constituted regardless of vacancies or absences. When an action is the subject of a referral to the Orange County Planning Department, the voting provisions of Section 239-m of the General Municipal Law shall apply.