Establishment. Pursuant to the provisions of the Town Law, a Zoning Board of Appeals is hereby established in the Town of Fallsburg.
Appointment. The Board shall consist of seven members to be appointed by the Town Board. The terms of the initial appointees shall be for one, two, three, four, and five years, etc., from and after the date of appointment. Their successors, including such additional members as may be appointed by the Town Board, shall be appointed for the term of five years after the expiration of the terms of their predecessors in office.
Appointment to fill vacancies. Appointments to fill vacancies shall be for the unexpired term of the members whose term or terms become vacant. Such appointment to fill vacancies shall be made in the same manner as the original appointment. The Zoning Board of Appeals (ZBA) may continue to legally operate while vacancies are waiting to be filled, provided there are enough members to constitute a quorum.
General grant of power. The ZBA shall perform all the duties and have all the powers prescribed by the laws of the State of New York and as herein described.
Votes necessary for a decision. Four members of the ZBA shall, regardless of the number of members at a given point, be a quorum for purposes of conducting any business. The concurring vote of four of the members of the Board shall be necessary to reverse any order, requirement, decision or determination of the Code 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.
Meetings. All meetings of the Zoning Board of Appeals shall be held at the call of the Chairman and at such times as such Board may determine. All hearings conducted by the Zoning Board of Appeals shall be open to the public. The secretary to the Zoning Board of Appeals shall keep minutes of its proceeding showing the vote of each member upon each question, if absent or failing to vote, indicating such fact; and shall also keep records of its hearings and other official action. The Board shall have the power to subpoena and require the attendance of witnesses, administer oaths, compel testimony and the production of books, papers, files and other evidence pertinent to the matters before it.
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 specific powers:
Variances. The Zoning Board of Appeals may vary or adapt the strict application of any of the requirements of this chapter where such strict application would result in practical difficulties or unnecessary hardship that would deprive the owner of the reasonable use of the land or building involved.
Appeals from administrative decisions. The Zoning Board of Appeals shall hear and decide appeals from and review any order, requirement, decision, or determination made by the Code Enforcement Officer in 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.
Interpretation. The Zoning Board of Appeals shall, upon request from or upon appeal of a decision by the Code Enforcement Officer, decide any questions 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.
General procedures. The Zoning Board of Appeals (ZBA) shall act in strict accordance with the procedure specified by § 267-b of Town Law and by this chapter. All appeals and variance applications made to the ZBA shall be in writing on forms prescribed by the Board. Every appeal or variance application shall refer to the specific provision of this chapter involved and shall exactly set forth the interpretation that is claimed, the use which is involved or sought, the details of the variance that is applied for, and the ground on which of the Zoning Board of Appeals should grant the variance. An appeal must be made within 30 days of the action of the administrative official appealed from. The applicant must file a signed notice of appeal with the administrative official from whom the appeal is taken and with the Secretary of the Zoning Board of Appeals. All information required thereon shall be complete before an appeal is considered filed. Three copies of the proper appeal form shall be filed with the Zoning Board of Appeals along with a fee to be established by the Town Board. This application must be submitted 15 days prior to the Zoning Board of Appeals meeting date.
Variance requirements. Any property owner, tenant or representative thereof may, in appealing decision of the Code Enforcement Officer of the Town of Fallsburg with respect to this chapter, request a variance from its literal terms. Application for a variance may be made after an application for a building permit has been denied and shall be delivered to the Code Enforcement Officer who shall then, in acting upon the permit application, refer the matter to the Zoning Board of Appeals for a decision on the variance request. This shall not, however, preclude an applicant whose permit request has been denied from subsequently requesting a variance in conjunction with an appeal of such action if the appeal has been timely filed. The needs or desires of a particular owner or tenant or of a particular prospective owner or tenant shall not either, alone or in conjunction with other factors, afford any basis for the granting of a variance. The fact that the improvements already existing at the time of the application are old, obsolete, outmoded or in disrepair or the fact that the property is unimproved shall not be deemed to make the plight of the property unique or to contribute thereto.
All State Environmental Quality Review Act provisions and New York State General Municipal Law § 239 referral provisions must be complied with.
Two types of variances may be granted by the Zoning Board of Appeal: area variances and use variances. Area variances involve relief from dimensional or other requirements for existing uses or uses allowed within the district under the terms of this chapter. Use variances involve a use of land not allowed in a district under the terms of this chapter. Each of the following findings of fact shall be made in writing by resolution by the Zoning Board of Appeals prior to granting such variances.
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 such ordinance or local law, to grant area variances as defined herein.
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.
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.
Use variances. The Zoning Board of Appeals, on appeal from the decision or determination of the administrative official charged with the enforcement of such ordinance or local law, shall have the power to grant use variances, as defined herein.
No such use variance shall be granted by a 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.
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. For example, if an owner purchases a residentially zoned property for the purpose of opening a commercial business, the hardship is self-created.
The Zoning 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.
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 the zoning ordinance or local law, and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.
The Town Board, Code Enforcement Officer or Planning Board of the Town of Fallsburg may request the Zoning Board of Appeals to decide any question involving the interpretation of any provision of this chapter and shall refer such other matters to the Zoning Board of Appeals as it is required to decide by the provisions of this chapter. The Zoning Board of Appeal's rules and regulations shall govern these matters. All matters to be referred to the Zoning Board of Appeals in such circumstances shall be in writing to the ZBA's Secretary and be acted on within 62 days of the Secretary's receipt of the same.
Any property owner, tenant, representative thereof or other person aggrieved by an administrative act of the Code Enforcement Officer of the Town of Fallsburg with respect to this chapter (i.e., believes such decision to be in error) may appeal to the Zoning Board of Appeals. An administrative act shall only include any order, requirements, decision or determination made by the Code Enforcement Officer. The Zoning Board of Appeals may reverse or affirm wholly or partly, or may modify the order, requirement, decision or determination as in its opinion ought to be made on the premises and to that end shall have all the powers of the official(s) from whom the appeal is taken.
The administrative official from whom the appeal is taken shall be responsible, at the direction of the Zoning Board of Appeals, for providing any applicant with the proper forms and for instructing the parties concerned on the proper manner for completing and filing said forms. All information required thereon shall be complete before an appeal is considered filed.
Time of hearing. The Zoning Board of Appeals shall schedule a hearing on all appeals on applications within 62 days of the filing an application for an appeal.
Notice of hearing. The Zoning Board of Appeals shall give notice of the hearing at least five days prior to the date thereof by publication in the official Town paper. In addition, the applicant shall notify by certified mail at least seven calendar days before the hearing to the following: all owners of property which lie adjacent to that owned by the applicant and all other owners within 300 feet of the applicant's property line in any direction. The names of said owners shall be taken as they appear on the last completed tax roll of the Town.
Irrelevant or unduly repetitious evidence or cross-examination may be excluded. Except as otherwise provided by statute, the burden of proof shall be on the party who initiated the proceedings. No decision, determination or order shall be made except upon consideration of the record as a whole or such portion thereof as may be cited by any party to the proceeding and as supported by and in accordance with substantial evidence.
Unless otherwise provided by any statute, the Board need not observe the rules of evidence observed by courts, but shall give effect to rules of privilege recognized by law. Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, an agency may, for the purpose of expediting the hearing, and when the interests of parties will not be substantially prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form.
All evidence, including records and documents in the possession of the agency of which it derives to avail itself, shall be offered and made a part of the record, and all such documentary evidence may be received in the form of copies of excerpts, or by incorporation by reference. In case of incorporation by reference, the materials so incorporated shall be available for examination by the parties before being received in evidence.
Official notice may be taken of all facts of which judicial notice could be taken and of other facts within the specialized knowledge of the Zoning Board of Appeals. When official notice is taken of a material fact not appearing in the evidence in the record and of which judicial notice could be taken, every party shall be given notice thereof and shall on a timely request be afforded an opportunity prior to the decision to dispute the fact of its materiality.
Prior to the date of any public hearing, the Secretary of the Zoning Board of Appeals shall transmit to the Chairman 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 Zoning Board of Appeals an advisory opinion on said appeal or application at any time prior to the rendering of a decision by the Zoning Board of Appeals.
Should any action by the Zoning Board of Appeals involve any of the areas specified in §§ 239-l, 239-m and 239-nn of Article 12-B of the General Municipal Law, then the matter shall be referred prior to final action by the Zoning Board of Appeals to the Sullivan County Planning Department and/or adjoining municipalities in accordance with that law. A report of the Board of Appeals final action must be submitted to the county within seven days of such action.
[Amended 5-11-2010 by L.L. No. 7-2010]
The Zoning Board of Appeals must reach a decision within 62 days of the close of hearing.
Every decision of the Zoning Board of Appeals shall be recorded in accordance with standard forms adopted by the Board and shall fully set forth the circumstances of the case and shall contain a full record of the findings on which the decision is based. Every decision of the Board shall be by resolution and each such resolution shall be filed in the office of the Town Clerk by case number under one of the following heads: interpretation, or variances; together with all documents pertaining thereto. Regarding their decision in each case, the Zoning Board of Appeals shall notify the Code Enforcement Officer, Town Board, Planning Board, and the Municipal Clerk of any affected municipality given notice of hearing.
All the provisions of this chapter relating to the Zoning Board of Appeals shall be strictly construed. Said Board as a body of jurisdiction shall act in full conformity with all provisions of law and of this chapter and in strict compliance with all limitations contained therein.
Expiration. Unless construction is commenced and diligently pursued within six months of the date of the granting of the variance, such variance shall become null and void.