A. 
Appointment of members. The Mayor shall appoint a Zoning Board of Appeals consisting of five members with the approval of the Common Council. The Mayor shall designate the Chairperson thereof with the approval of the Common Council. In the absence of the Chairperson the Board of Appeals may designate a member to serve as Acting Chairperson. In making such appointments, the Mayor may require Board of Appeals members to complete training and continuing education courses in accordance with any requirements established by the Common Council.
B. 
Appropriations and expenses. The members of the Zoning Board of Appeals shall receive no compensation for their services as members of the Board of Appeals. The Board of Appeals shall have the power and authority to employ experts, clerks and a secretary, and to pay for their services, and to provide for such other expenses as may be necessary and proper, not exceeding in all the appropriation that may be made therefor by the Common Council, excepting and providing that all salaries shall be fixed and determined by the Common Council.
C. 
No person who is a member of the Common Council shall be eligible for membership on the Zoning Board of Appeals.
D. 
Terms of members first appointed. In the creation of a new Zoning Board of Appeals, or the reestablishment of terms of an existing Board of Appeals, the appointment of members to the Board of Appeals shall be for terms so fixed that one member's term shall expire at the end of the official year in which such members were initially appointed. The remaining members' terms shall be so fixed that one member's term shall expire a the end of each official year thereafter. At the expiration of each original member's appointment, the replacement member shall be appointed for a term which shall be equal in years to the number of members of the Board of Appeals.
E. 
Terms of members now in office. Members now holding office for terms which do not expire at the end of the official year shall, upon the expiration of their term, hold office until the end of the official year and their successors shall then be appointed for terms which shall be equal in years to the number of members of the Board of Appeals.
F. 
Vacancy in office. If a vacancy shall occur otherwise than by expiration of term, the Mayor shall appoint the new member for the unexpired term with the approval of the Common Council.
G. 
Removal of members. The Mayor shall have the power to remove, after public hearing, any member of the Zoning Board of Appeals for cause. Any Board of Appeals member may be removed for noncompliance with minimum standards relating to meeting attendance and training as established by the Common Council.
H. 
Compatibility of offices. The City officials or employees on the Board of Appeals shall not, by reason of such membership, forfeit their right to exercise the powers, perform the duties or receive the compensation of the City office or position held by them during such membership. No City officer or employee shall be appointed to the Zoning Board of Appeals in the event such officer or employee cannot carry out the duties of his or her position without a conflict in the performance of his or her duties as a member of the Board of Appeals.
I. 
Chairperson duties and quorum. All meetings of the Board of Appeals shall be held at the call of the Chairperson and at such other times as the Board may determine. The Chairperson or, in his or her absence, the Acting Chairperson may administer oaths and compel the attendance of witnesses. A quorum shall consist of three members, subject to the restrictions contained in § 475-56D of this chapter.
A. 
Definitions. As used in this section, the following terms shall have the meaning indicated:
AREA VARIANCE
The 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.
USE VARIANCE
The authorization by the Zoning Board of Appeals for the use of land for a purpose which is otherwise not allowed or is prohibited by this chapter.
B. 
Orders, requirements, decisions, interpretations, and determinations. Upon a duly taken appeal, the Board of Appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, interpretation or determination made pursuant to this chapter, and shall make such order, requirement, decision, interpretation or determination as in its opinion ought to have been made in the matter by the administrative official charged with the enforcement of this chapter and to that end shall have all the powers of the administrative official from whose order, requirement, decision, interpretation or determination the appeal is taken. This subsection shall not apply to any decision or determination of the Commissioner of Public Works, Deputy Commissioners of Public Works, Building Inspector, Fire Inspector or any Code Enforcement Officer to file charges in Middletown City Court alleging a violation of this chapter, and no appeal may be taken to the Board of Appeals challenging any such decision or determination.
[Amended 5-20-2014]
C. 
Use variances. The Zoning 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.
(1) 
No 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 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; and
(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; and
(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.
(2) 
The Board of Appeals, in 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.
D. 
Area variances. 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.
(1) 
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:
(a) 
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; and
(b) 
The benefit sought by the applicant can be achieved by some method feasible for the applicant to pursue, other than an area variance; and
(c) 
The requested area variance is substantial; and
(d) 
The proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and
(e) 
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 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
E. 
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. 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.
F. 
In considering applications for use variances and/or area variances, the Zoning Board of Appeals shall apply and mandate all of the provisions of Chapter 414 of the Code of the City of Middletown, Stormwater Management; Erosion and Sediment Control.
[Added 11-27-2007 by L.L. No. 3-2007]
A. 
Meetings, minutes, and records. Meetings of the Zoning Board of Appeals shall be open to the public to the extent provided in Article 7 of the Public Officers Law. The 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.
B. 
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 Clerk of the Common Council within five business days and shall be a public record.
[Amended 1-7-2008]
C. 
Assistance. The Board of Appeals shall have the authority to call upon any department, agency or employee of the City for such assistance as shall be deemed necessary and as shall be authorized by the Common Council. Such department, agency or employee may be reimbursed for any expenses incurred as a result of such assistance.
D. 
Hearing appeals. Unless otherwise provided by this chapter, 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 this chapter. 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 City.
E. 
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 this chapter by filing with such administrative official and with the Board of Appeals a notice of appeal on forms prescribed by the Board, 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. All appeals shall be accompanied by a fee of $100.
F. 
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 this chapter, 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.
G. 
Hearing an 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 the official newspaper of the City 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 of Appeals prior to the hearing of such appeal. Upon the hearing, any party may appear in person, or by agent or attorney.
H. 
Additional notice. In addition to such published notice, the Board of Appeals shall cause notice to be given of the substance of every appeal for a use variance or an area variance, together with notice of the hearing thereon, by causing notices thereof to be mailed by postal card or other means at least 10 days before 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), and all other owners within 300 feet, or such additional distance as the Board of Appeals may deem advisable, from the exterior boundaries of the land involved in such appeal, as the names of said owners appear on the last completed assessment roll of the City. It shall be the appealing party's responsibility to issue any or all of the notices required by this section. Provided that due notice has been published as above required 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 order, decision or determination of any appeal.
I. 
Time of decision. The Board of Appeals shall decide upon the appeal within 62 days after the conduct of said hearing and after the applicant has submitted all supporting information required by the Board of Appeals. The time within which the Board of Appeals must render its decision may be extended by mutual consent of the applicant and the Board.
J. 
Filing of decision and notice. The decision of the Board of Appeals on the appeal shall be filed in the office of the Clerk of the Common Council within five business days after the day such decision is rendered and a copy thereof mailed to the applicant.
[Amended 1-7-2008]
K. 
Notice to park commission or planning agency. At least five days before such hearing, the Board of Appeals shall mail notices thereof to the regional state park commission having jurisdiction over any state park or parkway within 500 feet of the property affected by such appeal. At least five days before such hearing, the Board of Appeals shall mail notices thereof to the Orange County Planning Department for review in accordance with the provisions of §§ 239-l and 239-m of the General Municipal Law if the property affected by such appeal lies within 500 feet of the boundary of any other municipality, county or state park or right-of-way of any county- or state-controlled access highway or drainage channel, or from the boundary of any county- or state-owned land on which a public building is situated.
L. 
Neighboring municipalities affected. If the property affected by such appeal lies within 500 feet of the boundary of any other municipality, the Clerk of the Common Council shall also transmit to the municipal clerk of such other municipality a copy of the official notice of the public hearing thereon not later than the day after such notice appears in the official newspaper of the City.
[Amended 1-7-2008]
M. 
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.
N. 
Notice to Planning Board. At least 10 days before the date of any public hearing, the Secretary of the Zoning 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 by the Board of Appeals.
O. 
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.
P. 
Expiration of variances. Unless work is commenced and diligently prosecuted within one year of the date of the granting of a use variance or area variance, such variance shall become null and void.