Town of Ghent, NY
Columbia County
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A. 
There shall be a Board of Appeals. Said Board shall consist of five members. The method of appointment, terms of office and tenure of its members shall be as prescribed by law.
[Amended 1-17-2008 by L.L. No. 1-2008[1]]
[1]
Editor's Note: This local law also provided that the reduction in number of members from seven to five was pursuant to Town Law § 267, Subdivision 7, and that because there were currently only five acting members said reduction would not affect any incumbent.
B. 
The Board shall have all the powers and duties prescribed by law and by this chapter.
C. 
The Board shall appoint a Secretary and shall prescribe rules for the conduct of its affairs.
D. 
All meetings of the Board of Appeals shall be open to the public. A quorum shall be determined pursuant to the provisions of New York General Construction Law § 41.
[Amended 10-20-2011 by L.L. No. 1-2011]
E. 
Every decision by the Board shall be by resolution, and shall contain a full record of the findings of the Board in the particular case.
A. 
Applications for any action by the Board of Appeals shall be submitted in the form required by the Board and filed in the municipal office.
B. 
The Board shall fix a time and place for a public hearing thereon, and shall provide for the giving of notice at least five days prior to the date thereof, as follows:
[Amended 4-27-2000 by L.L. No. 1-2000]
(1) 
By publishing a notice in the official newspaper and sending a notice by mail to the owners of properties within 300 feet of the property affected by the proposed application, including properties on the opposite side of the street or highway.
(2) 
If the land involved in an application is within 500 feet of the boundary of any other municipality, notice of the public hearing shall also be mailed to the Municipal Clerk of such other municipality.
C. 
Notice of the public hearing and a description of the applicant's proposal shall be mailed to the Columbia County Planning Board in any case required pursuant to the provisions of the General Municipal Law of the State of New York.
D. 
No action shall be taken on applications referred to the Columbia County Planning Board until the Board's recommendation has been received or 30 days have elapsed after the Board received the full statement on the applicant's proposal.
E. 
A record, subject to public inspection, shall be established of all variances granted pursuant to action of the Board of Appeals under this chapter.
F. 
The Board shall keep minutes of its proceedings for public record showing the vote of each member upon every question.
G. 
Building or use permits authorized by the appropriate Board on variance cases or in connection with applications for special permits must be obtained within 90 days from the date of approval by the Board; and any construction or use authorized by such permit must be completed or established within one year from the date of approval. Any permit authorized or issued shall lapse if it has not been completed or fulfilled within the time limitations set forth herein, and the applicant must then reapply. Extensions of these periods may be granted by the appropriate Board where good cause is shown; provided, however, that in no event shall such an extension be granted where the delay has been more than one year from the last date authorized for the issuance of a permit or for completion of the project or establishment of the use.
[Amended 5-16-2002 by L.L. No. 2-2002]
H. 
The fee of variance applications to the Board of Appeals shall be established by the Town Board.
I. 
If a project before the Zoning Board requiring a special permit or a variance or before the Planning Board requiring a special permit would, upon completion, require approval from the Columbia County Health Department for the septic system, then such approval for the septic system shall be obtained prior to the granting of any special permit or variance hereunder, except that, in the alternative, the applicant may satisfy this requirement by obtaining a letter from a licensed professional engineer with experience in the design of on-lot sanitary systems, stating that there is a suitable area for the installation of an inground, private septic system, including a fill system, which will meet all of the requirements of the Columbia County Health Department and will comply with all of the required setbacks. If the applicant chooses to secure such a letter from an engineer, it shall in no way relieve the applicant from the further requirement that Columbia County Health Department approval as referred to above shall be obtained for any private septic system prior to the issuance of a building permit.
[Amended 5-16-2002 by L.L. No. 2-2002]
The Board of Appeals shall, upon appeal, hear and decide:
A. 
Any matter where the applicant alleges that the Building Inspector or Zoning Enforcement Officer was in error in refusing to issue a building permit, use permit or certificate of occupancy, as a result of misinterpreting the meaning, intent or application of any section or part of this chapter.
B. 
Any matter where the applicant alleges that the Building Inspector was in error in his determination as to the exact location of a district boundary line on the Zoning Map that forms a part of this chapter.
C. 
Any other matter for which review is authorized pursuant to any of the provisions of this Zoning Chapter.
D. 
Where an application has been made by or on behalf of more than three persons not related by blood, marriage or adoption to be considered to constitute a single-family unit, and the application is denied by the Building Inspector, the applicants may appeal to the Zoning Board. There shall be a presumption that such applicants do not constitute a single family for the purposes of this chapter and the applicants must rebut this presumption by clear and convincing evidence to the contrary. Such evidence shall establish that the unit is permanent in nature and not transient, does not constitute a temporary living arrangement such as a group of students sharing a house on a temporary basis, is in all respects a single housekeeping unit and is by all outward appearances a normal, stable and permanent family unit in the community. The applicant shall also have the burden of establishing that the number of persons in the unit is reasonably related to the size of the dwelling proposed to be occupied, that the dwelling unit has adequate water and septic facilities, and that the approval of the application will not significantly change the character of the neighborhood or district.
E. 
Any application for appeal to the Board of Appeals shall be filed within 30 days from the date of the decision or determination made by the Building Inspector.
A. 
The Board of Appeals shall have the power in passing on appeals as provided by the Town Law or as otherwise provided for herein or by any general or local law, rule or regulation, including the power to grant use variances and/or area variances in accordance with the provisions thereof and as set forth herein.
B. 
All applications for a variance shall include a map showing the existing property and all improvements thereon, and showing the proposed site plan. The Board of Appeals may require a formal survey map where such map will help to resolve the issues before the Board.
C. 
Guiding principles:
(1) 
Every decision by the Board of Appeals granting a variance shall clearly set forth the nature and extent of such variance.
(2) 
Every variance granted by the Board of Appeals may be made subject to such conditions and safeguards as the Board shall deem to be applicable to the particular case. Violations of such conditions or safeguards that are a part of the Board's decision shall be deemed a violation of this chapter punishable under the provisions of Article XI.
(3) 
Any variance granted by the Board of Appeals pursuant to the provisions of this section shall be construed to be a nonconforming use.
D. 
General standards for use variances.
(1) 
No use variance shall be granted by the Board of Appeals without a showing by the applicant that the 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 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) 
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.
(c) 
That the requested use variance, if granted, will not alter the essential character of the neighborhood.
(d) 
That the alleged hardship has not been self-created.
(2) 
In addition, the Board of Appeals, in granting 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.
E. 
General standards for area variances.
(1) 
The Zoning Board of Appeals, in considering whether or not to grant an area variance, 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:
(a) 
Whether any 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.
(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.
(e) 
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.
(2) 
The Board of Appeals in 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.
F. 
The Board of Appeals in the granting of both use variances and area variances shall 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 condition shall be consistent with the spirit and intent of the Zoning Chapter, and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.
G. 
Specific types of variances. In the instances of the following types of variances, the Board of Appeals is hereby specifically empowered to grant the variance pursuant to the guiding principles and the general standards stated in Article IX and to the following provisions:
(1) 
With respect to lots lying across district boundary lines: to grant a permit, in appropriate cases, where the lot of the appellant, as such lot legally existed on the date of the last amendment of the Zoning Law, lies across the boundary of two districts for extension into a residential district of a lawful conforming use permitted in a commercial or business district, but for a distance not exceeding 50 feet measured at right angles to such district boundary line.
[Amended 4-7-2016 by L.L. No. 2-2016]
(2) 
With respect to nonconforming uses, buildings and lots:
(a) 
To grant a permit for the enlargement or extension of a nonconforming use or building on the lot or land occupied by such use or building on the effective date of this chapter, provided that such enlargement or extension shall not exceed 50% of the existing capacity on the effective date of this chapter.
(b) 
To grant a certificate of occupancy for a change in a nonconforming use, provided that:
[1] 
The Board of Appeals shall have made a determination that such change will be beneficial to the general neighborhood.
[2] 
Such change be made subject to such reasonable conditions and safeguards as the Board of Appeals may stipulate.
[3] 
There has been site plan review and approval by the Planning Board.[1]
[1]
Editor’s Note: Former Subsection G(2)(c), regarding nonconforming mobile homes, which immediately followed, was repealed 5-17-2012 by L.L. No. 4-2012.