Pursuant to the provisions of New York Village
Law § 7-712, a Zoning Board of Appeals is hereby established
in the Village of Millbrook.
The Zoning Board of Appeals shall consist of
five members. The terms of the initial appointees shall be for one,
two, three, four and five years from and after the date of appointment.
Their successors, including such additional members as may be appointed,
shall be appointed for the term of five years after the expiration
of the terms of their predecessors in office. The Village Board shall
designate the Chairperson of the Zoning Board of Appeals.
Appointments to fill vacancies shall be for
the unexpired term of the member or members whose term or terms become
vacant. Such appointments to fill such vacancies shall be made in
the same manner as the original appointment.
The concurring vote of a majority of the members
of the Zoning Board of Appeals shall be necessary to reverse any order,
requirement, decision or determination of the Zoning Enforcement Officer
or to decide in favor of the appellant on any matter upon which it
is required to pass under the terms of this chapter or to effect any
variation of this chapter.
The Zoning Board of Appeals shall perform all
the duties and have all the powers prescribed by the laws of the State
of New York as herein described. The Zoning Board of Appeals shall
hear and decide appeals pursuant to the provisions of the laws of
the State of New York and shall have the following powers:
A.
To hear and decide appeals. The Zoning Board of Appeals
shall hear and decide appeals from and review any order, requirement,
decision and determination made by the Zoning Enforcement Officer
administering this chapter. It shall also hear and decide all matters
referred to it or upon which it is required to pass under the provisions
of this chapter.
B.
Variances. The Zoning Board of Appeals may vary or
adapt the strict application of the requirements of this chapter.
The Zoning Board of Appeals may reverse or affirm, wholly or partly,
any order, interpretation or decision by the official appealed from.
(1)
Definition of types of variances.
(a)
"Use variance" is defined as a use of land for
a purpose which is otherwise not allowed or is prohibited by this
chapter.
(b)
"Area variance" is defined as authorization
by the Zoning Board of Appeals for the use of land in a manner which
is not allowed by the dimensional or physical requirements of this
chapter.
(2)
No variance may be granted unless it meets the following
standards:
(a)
Use variances.
[1]
The Board of Appeals, on appeal from the decision
or determination of the administrative official charged with the enforcement
of this chapter, shall have the power to grant use variances, as defined
herein.
[2]
No such variance shall be granted 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 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.
[3]
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 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.
(b)
Area variances
[1]
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 this chapter to grant area
variances as defined herein.
[2]
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:
[a]
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.
[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 variances
are 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.
[3]
The Board of Appeals, in granting 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.
(c)
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
this chapter and shall be imposed for the purpose of minimizing any
adverse impact such variance may have on the neighborhood or community.
C.
Interpretation. The Zoning Board of Appeals shall,
upon appeal from a decision by an administrative official, decide
any question involving the interpretation of any provision of this
chapter, including determination of the exact location of any district
boundary if there is uncertainty with respect thereto.
D.
Referral to Planning Board. The Zoning Board of Appeals
shall refer to the Planning Board such matters as required by this
chapter and any other pertinent matters for review and recommendations
and defer any decision thereon for a period of not more than 60 days
pending a report from the Planning Board. Upon failure to submit such
report, the Planning Board shall be deemed to have approved the application
for appeal.
A.
The Zoning Board of Appeals shall act in strict accordance with the procedure specified by law and this chapter. All appeals and applications made to the Zoning Board of Appeals shall be in writing, on forms prescribed by the Board and in accordance with this chapter. Every appeal or application shall refer to the specific provision of the section involved and shall exactly set forth the interpretation that is claimed, the use for which the special permit is sought or the details of the variance that is applied for and the grounds on which it is claimed that the variance should be granted, as the case may be. At least 30 days before the date of the hearing required by law on an application or appeal to the Zoning Board of Appeals, the secretary of said Zoning Board of Appeals shall transmit to the Planning Board a copy of said application or appeal, together with a copy of the notice of the aforesaid and shall request that the Planning Board make a determination in accordance with § 230-68D. Every decision of the Zoning Board of Appeals shall be by resolution, each of which shall contain a full record of the findings of the Zoning Board of Appeals in the particular case.
B.
Every rule, regulation, every amendment or repeal
thereof and every order, requirement, decision or determination of
the Board shall be filed within five business days in the office of
the Zoning Board of Appeals and with the Village Clerk and shall be
a public record. A copy of any decision shall be mailed to the applicant.
[Amended 12-16-1997 by L.L. No. 2-1997]
