[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; 9-10-2003 by L.L. No. 2-2003; 3-9-2022 by L.L. No. 1-2022]
The Village Zoning Board of Appeals shall be continued and,
from the date of enactment of this chapter, shall consist of five
members. The Mayor shall appoint the Board of Appeals and the Chairperson
thereof, subject to the approval of the Board of Trustees. The Village
Board shall have the power to remove any member of the Board of Appeals
for cause and after public hearing.
A.
Term of appointment.
(1)
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.
(2)
Vacancies shall be filled for the unexpired term of the member whose
place has become vacant.
(3)
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.
B.
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.
C.
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)]
D.
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)]
E.
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)]
Public notice of any required hearing by the
Board of Appeals shall be given in accordance with Village Law as
follows:
A.
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.
B.
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.
C.
By giving written notice of hearing to any required
municipal, county, metropolitan, regional, state or federal agency
in the manner prescribed by law.
[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:
A.
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.
B.
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]
C.
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]
D.
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.
E.
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.
A.
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.
B.
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]
C.
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.
D.
Use variances.
[Amended 8-11-1993 by L.L. No. 1-1993]
(1)
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.
(2)
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.
(3)
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.
E.
Area variances.
[Added 8-11-1993 by L.L. No. 1-1993]
(1)
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.
(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 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.
(3)
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.
F.
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]
[Added 2-14-1996 by L.L. No. 1-1996]
A.
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:
B.
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]
C.
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:
(1)
Hours of operation.
(2)
Amount of traffic generated.
(3)
Scale of operation, including the number of employees.
(4)
Parking requirements for patrons and employees.
(5)
Scale of physical design in relation to surrounding
neighborhood.
(6)
Lighting.
(7)
Outdoor storage of waste, equipment or other items
required for operation.
(8)
Emission of objectionable sound and offensive odors.
(9)
Aesthetics.
(10)
Public health.
(11)
Sewage and drainage.
D.
Any approval of a change from a nonconforming use
to another nonconforming use 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.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
Any person or persons jointly or severally aggrieved
by any decision of the Board of Appeals may apply to the Supreme Court
for relief by a proceeding under Article 78 of the Civil Practice
Law and Rules of the State of New York. Such proceeding shall be governed
by the provisions of Article 78 of the Civil Practice Law and Rules,
except that it must be instituted as therein provided within 30 days
after the filing of a decision in the office of the Village Clerk.
Costs shall be allowed against the Board of Appeals unless it shall
appear to the Court that it acted with gross negligence or in bad
faith or with malice in making the decision appealed from.
