Article VIII Zoning Board of Appeals

Each Board of Appeals member shall be appointed for a term of five years. The appointment of Board members shall be of terms so fixed that one member's term shall expire at the end of each official Village year.

Vacancies shall be filled for the unexpired term of the member whose place has become vacant.

The Village Board may choose to appoint an alternate member of the Zoning Board of Appeals to serve as provided in this section. The number of alternate members appointed pursuant to this section shall not exceed one. The Village Board may appoint an alternate member who shall hold membership for a term of two years. The Chairperson of the Zoning Board of Appeals may assign the available alternate member to substitute for a regular member who is absent or who is unable to participate for reasons of conflict of interest, after proposing such an action, voting on it, and recording it in the minutes of the meeting. An alternate member must attend all regular and special meetings of the Zoning Board of Appeals, unless excused by the Board. An alternate member of the Zoning Board of Appeals may only participate at meetings of the Zoning Board of Appeals when sitting as a member of the Board, and an alternate member may not participate in meetings of the Zoning Board of Appeals as a resident of the community.

(4)

An alternate member assigned to sit and participate as a member of the Zoning Board of Appeals as provided herein shall possess all of the powers and responsibilities of a regular member of the Zoning Board of Appeals. Any determination by the Zoning Board of Appeals consisting of alternate members shall have the same force and effect at law as a determination made by the Zoning Board of Appeals consisting of only regular members. Alternate members appointed pursuant to this section shall be entitled to receive such expenses as fixed by resolution of the Village Board.

Staff. The Board of Appeals may employ such clerical or other staff assistance as may be necessary and prescribe their duties, provided that it shall not at any time incur expenses beyond the amount of the appropriations made by the Village Board and then available for the purpose.

Rules of procedure; bylaws; forms. The Board of Appeals shall have the power to make, adopt and promulgate such written rules or procedures, bylaws and forms as it may deem necessary for the proper execution of its duties and to secure the intent of this chapter. Such rules, bylaws and forms shall not be in conflict with nor have the effect of waiving any provisions of this chapter or any other local law of the Village of Kinderhook. Such rules, bylaws and forms and any subsequent amendments or supplements thereto shall be submitted to the Village Board by the Board of Appeals for approval and filing for public view. The Village Board shall move to approve, reject or modify such rules, bylaws and forms within 30 days after submission. Failure of the Village Board to so move shall be construed to constitute approval thereof.

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]

All meetings of the Board of Appeals shall be held at the call of the Chairperson and at such other times as such Board may determine. The Chairperson or, in the Chairperson's absence, the Acting Chairperson, may administer oaths and compel the attendance of witnesses. All meetings of such Board shall be open to the public. Voting requirements for actions taken by the Board shall comply with Village Law, § 7-712-a, Subdivision 13, as amended. The Board of Appeals shall decide an appeal or any other matter referred to it within 62 days after the final hearing.

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]

The Board of Appeals shall keep minutes of its proceedings, showing the vote of each member on every question. If a member is absent or fails to vote, the minutes shall indicate such fact. 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 Village Clerk within five business days from the day it is rendered and shall be a public record, and a copy shall be forwarded to the Planning Board.[1]

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]

[1]

Editor's Note: Former Subsection F, Referrals to the Planning Board, of the 2003 Code, which immediately followed this subsection, was repealed at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

§ 130-39 Public notice and hearing.

Public notice of any required hearing by the Board of Appeals shall be given in accordance with Village Law as follows:

By publishing a notice of any appeal or application and the time and place of the public hearing in the official newspaper of the Village of Kinderhook not less than 15 days prior to the date of such hearing.

By giving written notice of hearing to any appellant or applicant and any other such notice to property owners in an affected area as may be required by the Board of Appeals and to the Planning Board not less than five days prior to such hearing.

By giving written notice of hearing to any required municipal, county, metropolitan, regional, state or federal agency in the manner prescribed by law.

§ 130-40 Appeals.

[Amended 5-26-1977 by L.L. No. 3-1977; 8-11-1993 by L.L. No. 1-1993; 2-14-1996 by L.L. No. 1-1996]

The Board of Appeals shall hear and decide appeals from and review any order, requirement, decision or determination made by designated enforcement officer(s) under this chapter in accordance with the procedure set forth herewith:

Notice of appeal shall be filed with the designated enforcement officer(s) and the Chairperson of the Board of Appeals, in writing, on a form required by such Board within 60 days of the date of the action appealed from, specifying the grounds thereof.

Upon the filing of a notice of appeal and payment of a filing fee as set from time to time by resolution of the Village Board of Trustees by the appellant or applicant, the designated enforcement officer(s) shall forthwith transmit to the Board of Appeals all the papers constituting the record upon which the action appealed from was taken.

[Amended 9-10-2003 by L.L. No. 2-2003]

The Board of Appeals shall set a date for the hearing of each appeal no later than 40 days following the filing of the appeal, of which hearing date the appellant shall be given notice and at which hearing the appellant shall appear in person or by agent or by attorney.

[Amended 7-8-1998 by L.L. No. 4-1998]

An appeal stays all proceedings in furtherance of the action appealed from, unless the designated enforcement officer(s) certifies to the Board of Appeals, after notice of appeal shall have been filed with the officer, that by reason of facts stated in the certificate a stay would, in the officer's 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 designated enforcement officer(s) and on due cause shown.

Following public notice and hearing, the Board of Appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and shall make such order, requirement, decision or determination as, in its opinion, ought to be made in the premises and to that end shall have all the power of the designated enforcement officer(s). If the action by the Board of Appeals is to reverse the action of the designated enforcement officer(s) in whole, the filing fee shall be refunded to the appellant. The Board of Appeals shall decide the same within 62 days following the final hearing.

§ 130-41 Variances.

Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this chapter, the Board of Appeals shall have the power, after public notice and hearing, to vary or modify the application of any of the regulations or provisions of this chapter relating to the use, construction or alteration of buildings or structures or the use of land so that the spirit of the chapter shall be observed, public safety and welfare secured and substantial justice done.

All applications for variances shall be filed with the Chairperson of the Board of Appeals in writing, shall be made in a form required by the Board of Appeals and shall be accompanied by payment of a filing fee as set from time to time by resolution of the Village Board of Trustees and a plot plan, drawn to scale and accurately dimensioned, showing the location of all existing and proposed buildings and structures on the lot. Applications shall be submitted at least 10 days prior to the regular Zoning Board of Appeals meeting.

[Amended 5-26-1977 by L.L. No. 3-1977; 4-10-2002 by L.L. No. 3-2002; 9-10-2003 by L.L. No. 2-2003]

Any variance which is not exercised within six months from the date of issuance is hereby declared to be revoked without further hearing by the Board of Appeals.

Use variances.

[Amended 8-11-1993 by L.L. No. 1-1993]

The Board of Appeals, on appeal from the decision or determination of the Code Enforcement Officer, shall have the power to grant use variances authorizing a use of the land which otherwise would not be allowed or would be prohibited by the terms of this chapter.

No such use variance shall be granted by the Zoning Board of Appeals without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship. In order to prove unnecessary hardship, the applicant shall demonstrate to the Board of Appeals that:

(a)

The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;

[Amended 11-8-1999 by L.L. No. 3-1999]

(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;

[Amended 7-8-1998 by L.L. No. 4-1998]

(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.

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 proved 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.

Area variances.

[Added 8-11-1993 by L.L. No. 1-1993]

The Zoning Board of Appeals shall have the power, upon an appeal from a decision or determination of the Code Enforcement Officer, to grant area variances from the area or dimensional requirements of this chapter.

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 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; and

(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 variance.

§ 130-42 Board approval of change of nonconforming use.

The Zoning 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.

Imposition of conditions. The Zoning Board of Appeals shall, in the granting of both use and area variances, have the authority to impose such reasonable conditions and restrictions as are directly related and incidental to the proposed use of the property or the period of time such variance shall be in effect. Such conditions shall be consistent with the purpose of this chapter and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community. Items to be considered may include, but not be limited to, hours of operation, amount of traffic generated, scale of operation, parking requirements, landscaping, screening, scale of physical design in relation to the surrounding neighborhood, lighting, outdoor storage of waste, equipment or other items required for operation, emission of objectionable sound and obnoxious odors, health, aesthetics, sewage and drainage.

[Added 8-11-1993 by L.L. No. 1-1993][1]

[1]

Editor's Note: Former § 130-42, Special use permits, which immediately followed this section, as amended, was repealed 10-8-2008 by L.L. No. 1-2008; see now § 130-24.1. This local law also redesignated former § 130-42.1 as § 130-42.

[Added 2-14-1996 by L.L. No. 1-1996]

The Board of Appeals, upon application therefor pursuant to § 130-29, shall have the power, after public notice and hearing, to approve or disapprove the change of any nonconforming use to another use which is of the same or more restricted use. In order to obtain the approval of the Board of Appeals for this change of nonconforming use, the applicant shall show to the satisfaction of the Board of Appeals that:

The hours of operation are not increased.

The amount of traffic generated is not increased.

The scale of operation, including number of patrons and employees, is not increased.

(4)

That any other activity or impact of the business is not increased.

(5)

If a change to another nonconforming use is approved, any change to an accessory nonconforming sign shall also require approval by the Board of Appeals in accordance with the provisions of § 130-29.

All applications to the Board of Appeals for approval of a change of a nonconforming use shall be filed with the Chairperson of the Board of Appeals in writing, shall be made in a form required by the Board and shall be accompanied by a payment of a filing fee as set from time to time by resolution of the Village Board of Trustees and four copies of a site plan. The plan shall be to scale and accurately dimensioned and include the information listed for a site plan in § 130-36B. Applications shall be submitted at least 10 days prior to the regular Zoning Board of Appeals meeting.

[Amended 4-10-2002 by L.L. No. 3-2002; 9-10-2003 by L.L. No. 2-2003]

Whenever the Board of Appeals approves the change of use to another nonconforming use, appropriate conditions and safeguards and/or time limitations may be attached thereto. Conditions and safeguards should be based upon consideration of potential impacts to the district in which the activity is proposed. Subjects to be considered in attaching these conditions and safeguards include the following:

Hours of operation.

Amount of traffic generated.