A.
Establishment. The Zoning Board of Appeals is established,
which shall consist of five members appointed by the Town Board. The
Town Board shall appoint one member Chairperson.
B.
Terms. Members of the Zoning Board of Appeals in office
when this code takes effect shall continue to serve for the balance
of the terms for which they were originally appointed. Succeeding
appointees shall be appointed for a term of five years. Appointment
to fill vacancies shall be made by the Town Board for the unexpired
term of the member or members whose term or terms become vacant.
C.
Alternate member. An alternate member of the Zoning
Board of Appeals could be appointed by the Town Board for a term of
five years. "Alternate member" means an individual who serves on the
Zoning Board of Appeals when a regular member is unable to participate
on an application or matter before the respective Board, as provided
herein. The Chairperson of the Zoning Board of Appeals may designate
the alternate to substitute for a member when such member is unable
to participate on the application or matter before the Board. When
so designated, the alternate member shall possess all the powers and
responsibilities of such member of the Zoning Board of Appeals. Such
designation shall be entered into the minutes of each Zoning Board
of Appeals meeting at which the substitution is made. All provisions
of state law relating to Zoning Board of Appeals member eligibility,
vacancy in office, removal, compatibility of office and service on
other boards, as well as any provisions of a local law relating to
training, continuing education, compensation and attendance, shall
also apply to alternate members.
D.
Powers and duties. The Zoning Board of Appeals shall
perform all duties and have all powers granted by this code.
A.
Quorum. A majority of the members of the Zoning Board
of Appeals shall constitute a quorum. The concurring vote of the majority
of the members of the Board shall be necessary to reverse any order,
decision, or determination of a Code Enforcement Officer to decide
in favor of any appellant in any matter upon which it is required
to pass under the terms of this code or to effect any variance of
this code.
B.
Meeting schedule. All meetings of the Zoning Board
of Appeals shall be held at the call of the Chairperson and at such
other times as such Board may determine. All meetings of such Board
shall be open to the public, except for executive sessions held in
accordance with the New York Public Officers Law.[1]
[1]
Editor's Note: See Public Officers Law § 100 et
seq.
C.
Recording Secretary. The Town Board shall appoint
a Recording Secretary for the Zoning Board of Appeals who shall keep
minutes of its proceedings, showing the vote of each member upon every
question or, if absent or failing to vote, indicate such fact. The
Zoning Board of Appeals shall also keep records of the examination
and other official actions.
D.
Oaths. The Chairperson or, in his absence, the Temporary
Chairperson may administer oaths and compel the attendance of witnesses.
E.
Applications. Applications, including any required
SEQRA[2] forms shall be submitted to a Code Enforcement Officer
on forms provided by the Town. Requests for area variances shall include
sketch plans showing existing and proposed setbacks. The Board may
adjourn any hearing where it determines an application is not complete
or additional information is needed. When the Board determines an
application is not complete, the public hearing shall remain open
and the time in which the Zoning Board of Appeals must issue a decision
shall not begin to run until such application is complete and the
hearing closed.
[2]
Editor's Note: See Environmental Conservation Law § 8-0101
et seq.
F.
Public hearing on appeal. The Board of Appeals shall
fix a reasonable time for the public hearing of the appeal, variance,
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 prior
to the hearing of such appeal. Upon the hearing, any party may appear
in person, or by agent or attorney.
G.
Referral to County Planning Board. A copy of the complete
variance application and supporting documents shall also be transmitted
to the County Planning Board for review when required either under
Article 12-B, §§ 239-l and 239-m of the General Municipal
Law, or § 283-a of the New York State Town Law.
H.
Time of decision. The Board of Appeals, providing
SEQRA[3] has been complied with, shall decide upon the appeal or
variance 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.
[3]
Editor's Note: See Environmental Conservation Law § 8-0101
et seq.
I.
Filing of decision and notice. The decision of the
Board of Appeals on the appeal or variance 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. A Code Enforcement
Officer shall, upon receipt of the notice of approval and upon application
by the applicant, issue the appropriate zoning permit or such other
approval permitted by the variance, subject to all conditions imposed
by the Zoning Board of Appeals.
J.
Rehearings. Whenever the Zoning Board of Appeals,
after hearing all the evidence presented upon an application for appeals
under the provisions of this code, denies or rejects same, said Board
shall refuse to hold further hearings on the same or substantially
similar application for appeal by the same applicant, their successors
or assigns, for a period of one year, except and unless the Board
shall find and determine from the information supplied in the request
for a rehearing that changed conditions have occurred relating to
the promotion of public health, safety, convenience, comfort, prosperity
and general welfare and that a reconsideration is justified. Such
rehearing may be granted only upon the favorable vote of a majority
of the Board plus one.
K.
Lapse of authorization. Any variance or modification
of this code authorized by the Board of Appeals shall be automatically
revoked unless a zoning permit or building permit, conforming to all
the conditions and requirements established by the Board of Appeals,
is obtained within six months of the date of approval by the Board
of Appeals and construction commenced within one year of such date
of approval, but where multiple approvals (other than building permits)
are required, the time period of six months/one year shall not begin
to run until the date upon which all required approvals are granted.
[Amended 3-29-2006 by L.L. No. 3-2006]
L.
Refund. Whenever the Board of Appeals issues an interpretation
overturning the decision of a Code Enforcement Officer, or determines
that a requested variance is not needed, the applicant shall receive
a refund of any fees paid in connection with the application. Said
refund shall be processed in accordance with the normal procedure
for claims against the Town and the auditing of said claims.
A.
Upon appeal from a decision by a Code Enforcement
Officer, the Zoning Board of Appeals shall decide any question involving
interpretation of any provisions of this chapter. Such appeal shall
be initiated within 60 calendar days of the adverse decision.
B.
Such appeal may be taken by any person aggrieved or
by an officer, department, board or bureau of the Town.
C.
The officer from whom the appeal is taken shall, within
30 days of the filing of the appeal, transmit all papers constituting
the record upon which the appeal is taken to the Board of Appeals.
D.
An appeal stays all proceedings in furtherance of
the action appealed from, unless the officer from whom the appeal
is taken certifies to the Board of Appeals after the notice of appeal
shall have been filed with him, that, by reason of facts stated in
the certificate, a stay would, in his 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 officer from whom the appeal is taken and on due cause shown.
E.
If the Board of Appeals determines that a public hearing
is necessary, the Board of Appeals shall fix a time for the hearing
of the appeal and give due notice thereof to the parties, and decide
the same within a reasonable length of time thereafter. At the time
of the hearing, any party may appear in person, by agent or by attorney.
The Zoning Board of Appeals may, after a public
hearing, grant a variance from the strict application of the provisions,
of this code in accordance with the following:
A.
Use variance. The Zoning Board of Appeals may grant
a use variance, based upon unnecessary hardship, where the applicant
has established all of the following factors:
(1)
The applicant cannot realize a reasonable return
on the property, provided that lack of return is substantial as demonstrated
by competent financial evidence;
(2)
The alleged hardship relating to the property
in question is unique, and does not apply to a substantial portion
of the district or neighborhood;
(3)
The requested use variance, if granted, will
not alter the essential character of the neighborhood; and
(4)
The alleged hardship has not been self-created.
B.
Area variance. Area variance may be considered where
setback, frontage, lot size, density or yard requirements of this
chapter cannot be reasonably met. The Zoning Board of Appeals may
grant an area variance, on the ground of practical difficulty upon
a consideration of the following factors:
(1)
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;
(2)
Whether the benefit sought by the applicant
can be achieved by some method feasible for the applicant to pursue,
other than an area variance;
(3)
Whether the requested area variance is substantial;
(4)
Whether the proposed variance will have an adverse
effect or impact on the physical or environmental conditions in the
neighborhood or district;
(5)
Whether feasible alternatives not requiring
a variance are available;
(6)
Whether the requested variance is the minimum
variance necessary to afford relief; and
(7)
Whether the alleged difficulty was self-created,
which consideration shall be relevant to the decision of the Zoning
Board of Appeals, but shall not necessarily preclude the granting
of the area variance.
C.
The Zoning Board of Appeals may attach such conditions
as it deems appropriate to variance approvals as it deems necessary
to minimize the impact of the variance.
