[Amended 2-6-1995 by L.L. No. 2-1995]
There shall be a Board of Appeals of five members,
who shall be residents of the Village of Chester pursuant to the provisions
of the Village Law of the State of New York § 7-712. The
Village Board shall appoint said members and may remove any member
of the Board of Appeals for cause, after public hearing. The members
of the Board shall be appointed for a term of five years. If a vacancy
shall occur otherwise than by expiration of the term, it shall be
filled by the Village Board by appointment for the unexpired term.
[Added 12-8-2008 by L.L. No. 4-2008; amended 5-15-2012 by L.L. No.
2-2012]
A.
Up to three alternate members of the Zoning Board of Appeals shall
be appointed by the Mayor, subject to the approval of the Board of
Trustees, for terms of five years.
B.
The Chairperson of the Zoning Board of Appeals may designate an alternate
member to substitute for a member when such member is unable to participate
on an application or matter before the Board. When so designated,
the alternate member shall possess all the powers and responsibilities
of such member of the Board. Such designation shall be entered into
the minutes of the initial Zoning Board of Appeals meeting at which
the substitution is made.
C.
All provisions of Village Law § 7-712 relating to Zoning
Board of Appeals member training and continuing education, attendance,
conflict of interest, compensation, eligibility, vacancy in office,
removal, and service on other boards, shall also apply to alternate
members.
Meetings shall be held at the call of the Chairman
or at such other times as the Board of Appeals may determine. A quorum
shall consist of at least four members, but in order to reverse a
decision of the Building Inspector or authorize a variance or special
permit, an affirmative vote of at least three members shall be required.
The Board shall keep minutes of its proceedings, showing the vote
of each member upon each question, and shall keep records of its examinations
and other official actions.
The Board of Appeals shall perform all the duties
and have all the powers prescribed in Article 6-A of the Village Law
of the State of New York[1] and as herein more particularly provided. However, none
of the following provisions shall be deemed to limit any power of
the Board that is conferred by law.
A.
Interpretation. On appeal from an order, requirement,
decision or determination made by an administrative official, or on
request by any official, board or agency of the Village, the Board
shall have the power to decide any of the following questions:
B.
Variances.
[Amended 2-6-1995 by L.L. No. 1-1995]
(1)
The Board of Appeals shall have the power to vary
or modify the application of any of the regulations or provisions
of this chapter upon appeal in specific cases.
(2)
Use variances.
(a)
The Board of Appeals, on appeal from the decision
or determination of the administrative officer charged with the enforcement
of the Zoning Law, shall have the power to grant use variances, as
defined herein.
(b)
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 zone where the property
is located the applicant cannot realize a reasonable return, provided
that lack of return is substantial as demonstrated by competent financial
evidence; that the alleged hardship relating to the property in question
is unique and does not apply to a substantial portion of the district
or neighborhood; that the requested use variance, if granted, will
not alter the essential character of the neighborhood; and that the
alleged hardship has not been self-created.
(c)
The 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 proved 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.
(3)
Area variances.
(a)
The Zoning Board of Appeals shall have the power,
upon an appeal from a decision or determination of the administrative
official charged with the enforcement of such local law, to grant
area variances as defined herein.
(b)
In making its determination, the Zoning Board
of Appeals 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 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 some method, feasible for the applicant
to pursue, other than an area variance; whether the requested area
variance is substantial; whether the proposed variance will have an
adverse effect or impact on the physical or environmental conditions
in the neighborhood or district; and 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.
(c)
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.
(4)
Imposition of conditions. The Board of Appeals shall,
in the granting of both use variances and area variances, have the
authority to impose such reasonable conditions and restrictions as
are directly related to and incidental to the proposed use of the
property and/or the period of time such variance shall be in effect.
Such conditions shall be consistent with the spirit and intent of
the Zoning Law and shall be imposed for the purpose of minimizing
any adverse impact such variance may have on the neighborhood or community.
[1]
Editor's Note: See now Art. 7 of the Village
Law.
[Amended 5-26-1981 by L.L. No. 12-1981; 12-14-1987 by L.L. No. 2-1987; 2-6-1995 by L.L. No. 1-1995]
The powers and duties of the Board of Appeals
shall be exercised in conformance with the following procedure:
A.
If, in the opinion of the Building Inspector, any
plan and/or application submitted does not comply with the provisions
of this chapter, he shall return one copy of the plans to the applicant
with his disapproval and retain two copies of the plans, together
with the application, for his records and for the Board of Appeals.
B.
Upon written disapproval by the Building Inspector
of any such plan and/or application, the applicant may appeal to the
Board of Appeals from such ruling by serving upon the Village Clerk,
in duplicate, a written notice of appeal addressed to the Building
Inspector and to the Board of Appeals, of the taking of such an appeal
from such decision, specifying the grounds of the appeal. Such service
upon the Village Clerk shall be deemed proper service upon the Building
Inspector and upon the Board of Appeals. The Village Clerk shall immediately
forward said notices of appeal to the Building Inspector and to the
Chairman of the Board of Appeals. The Building Inspector shall then
forward one copy of the plans with application to the Chairman of
the Board of Appeals.
C.
The Board of Appeals shall not decide upon any appeal
for a variance from this chapter or a special permit without first
holding a public hearing, notice of which hearing and of the substance
of the appeal or application shall be given by publication in an official
newspaper of the Village at least five days prior to the date of such
hearing. In addition to such published notice, the Board of Appeals
shall cause notice to be given of the substance of every appeal, special
permit or variance, together with notice of the hearing thereon, by
causing notices thereof to be mailed at least five days prior to the
date of said hearing to the owners of all property abutting that held
by the applicant in the immediate area (whether or not involved in
such appeal or application) and all other owners within 300 feet or
such additional distance as the Board of Appeals may deem advisable,
as measured from the exterior boundaries of the land involved in such
appeal or application, as the names of said owners appear on the last
completed assessment roll of the Village. Such notice shall be by
certified mail, return receipt requested, and the applicant shall
furnish the Board of Appeals proof of compliance with the notification
procedure. Any or all of the notices required by this section shall
be issued by the Secretary of the Board of Appeals on order of the
Board of Appeals or upon order of the Chairman of said Board if the
appeal or application is received when the Board is not in session
and the Chairman deems it necessary or desirable to expedite the public
hearing of such appeal or application. Provided that due notice shall
have been published as provided herein and that there shall have been
substantial compliance with the remaining provisions of this subsection,
the failure to give notice in exact conformance herewith shall not
be deemed to invalidate action taken by the Board of Appeals in connection
with the granting of any appeal, permit or variance.
D.
Meetings; minutes; records. Meetings of such Board
of Appeals shall be open to the public to the extent provided in Article
7 of the Public Officers Law. Such Board of Appeals 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 examinations and other official actions.
E.
Filing requirements. Every rule, regulation, every
amendment or repeal thereof and every order, requirement, decision
or determination of the Board of Appeals shall be filed in the office
of the Village Clerk within five business days and shall be a public
record.
F.
Assistance to Board of Appeals. Such Board shall have
the authority to call upon any department, agency or employee of the
Village for such assistance as shall be deemed necessary and as shall
be authorized by the Village Board of Trustees. Such department, agency
or employee may be reimbursed for any expenses incurred as a result
of such assistance.
G.
Hearing appeals. Unless otherwise provided, the jurisdiction
of the Board of Appeals 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 the administrative
official charged with the enforcement of any zoning law. The concurring
vote of a majority of the members of the Board of Appeals shall be
necessary to reverse any order, requirement, decision or determination
of any such administrative official or to grant a use variance or
area variance. Such appeal may be taken by any person aggrieved or
by an officer, department, board or bureau of the Village.
H.
Time of appeal. Such appeal shall be taken within
60 days after the filing of any order, requirement, decision, interpretation
or determination of the administrative official charged with the enforcement
of such zoning law by filing with such administrative official and
with the Board of Appeals a 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 Board of Appeals
all the papers constituting the record upon which the action appealed
from was taken.
I.
Stay upon appeal. An appeal shall stay all proceedings
in furtherance of the action appealed from, unless the administrative
official charged with the enforcement of such zoning law, from whom
the appeal is taken, certifies to the 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 Board of Appeals or by a court of
record on application on notice to the administrative official from
whom the appeal is taken and on due cause shown.
J.
Hearing on appeal. The 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 Village 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 Board prior to the
hearing of such appeal. Upon the hearing, any party may appear in
person or by agent or attorney.
K.
Rehearing. A motion for the Zoning Board of Appeals
to hold a rehearing to review any order, decision or determination
of the Board not previously reviewed may be made by any member of
the Board. A unanimous vote of all members of the Board 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 Board may reverse, modify or annul its original order, decision
or determination upon the unanimous vote of all members then present,
provided that the Board finds that the rights vested in persons acting
in good faith in reliance upon the reviewed order, decision or determination
will not be prejudiced thereby.
L.
Time of decision. The Board of Appeals shall decide
upon the appeal within 62 days after the conduct of said hearing.
The time within which the Board of Appeals must render its decision
may be extended by mutual consent of the applicant and the Board of
Appeals.
M.
Filing of decision and notice. The decision of the
Board of Appeals on the appeal shall be filed in the office of the
Village Clerk within five business days after the day such decision
is rendered, and a copy thereof mailed to the applicant.
N.
Notice to park commission or planning agency. At least
five days before such hearing, the Board of Appeals 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 county planning agency
as required by § 239-m of the General Municipal Law, which
notice shall be accompanied by a full statement of the matter under
consideration, as defined in Subdivision 1 of § 239-m of
the General Municipal Law.
O.
If the land involved in an appeal or application lies
within 500 feet of the boundary of any other municipality, the Secretary
of the Board of Appeals shall also transmit to the Municipal Clerk
of such other municipality a copy of the official notice of the public
hearing thereof at least 10 days prior to the public hearing.
P.
At least 10 days prior to the public hearing, the
Secretary of the Board of Appeals shall transmit to the Secretary
of the Planning Board a copy of any appeal or 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.
Q.
Unless construction is commenced and diligently prosecuted
within six months of the date of the granting of a variance, such
variance shall become null and void.
R.
All appeals and applications made to the Board of Appeals shall be in writing, on forms prescribed by the Board, and shall be accompanied by a fee in the amount required by Chapter 47 of the Code. However, no fee shall be required for applications requesting an interpretation as provided in § 98-37A.
S.
Each appeal or application shall:
(1)
Fully set forth the circumstances of the case.
(2)
Refer to the specific provision of the law involved.
(3)
Exactly set forth, as the case may be, the interpretation
that is claimed or the details of the variance that is applied for.
(4)
Set forth the grounds on which it is claimed that
the same should be granted.
T.
The Board of Appeals shall render a decision within 62 days of the public hearing and shall notify the applicant, the Building Inspector, each member of the Board of Trustees, the Secretary of the Planning Board and the Municipal Clerk of any affected municipality given notice of hearing as set forth in Subsections D and E above of its decision in each case.
U.
The decision of the Board of Appeals shall be transmitted
to the Orange County Department of Planning within seven days of the
decision.
V.
All the provisions of this chapter relating to the
Board of Appeals shall be strictly construed, and the Board, as a
body of limited jurisdiction, shall act in full conformity with all
provisions of law and of this chapter and in strict compliance with
all limitations contained therein; provided, however, that if the
procedural requirements set forth in this chapter have been substantially
observed, no applicant or appellant shall be deprived of the right
of application or appeal.
W.
Compliance with State Environmental Quality Review
Act. The Board of Appeals shall comply with the provisions of the
State Environmental Quality Review Act under Article 8 of the Environmental
Conservation Law and its implementing regulations as codified in 6
NYCRR 617.
X.
Appeal from a decision of the Board of Appeals may
be made to the Supreme Court within 30 days after the filing of a
decision by the Board of Appeals with the Village Clerk.
