Village of Millerton, NY Administration and Enforcement Procedure

Creation. A Board of Appeals is hereby established in accordance with § 7-712 of the Village Law.

[Amended 2-23-1998 by L.L. No. 1-1998]

Composition. The Board of Appeals may consist of five members.

[Amended 2-23-1998 by L.L. No. 1-1998]

Appointment. The Village Board shall appoint the members of the Board of Appeals and shall designate its Chairman. No person who is a member of the Village Board shall be eligible for membership on such Board of Appeals. Members shall be appointed for three-year terms.

(4)

Removal. The Mayor shall have the power to remove any member of the Board for cause after public hearing.

[Amended 2-23-1998 by L.L. No. 1-1998]

(5)

Vacancies. Vacancies shall be filled by the Village Board. If vacancies shall occur otherwise than by the expiration of term, it shall be filled by appointment for the unexpired term.

(6)

Compensation. The Village Board may provide for compensation to be paid to Board members, experts, clerks, a secretary and for other such expenses as may be necessary and proper.

General procedures.

Meetings. All meetings of the Board of Appeals shall be held at the call of the Chairman and at such other times as such Board may determine. All meetings of such Board shall be open to the public.

Oaths. The Chairman or, in his absence, the Acting Chairman may administer oaths and compel the attendance of witnesses.

Minutes. 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 examination and other official actions. Every rule, regulation, every amendment or repeal thereof and every order, requirement, decision or determination of the Board shall immediately be filed in the office of the Village Clerk and shall be a public record.

Powers. The Board of Appeals shall have the following powers:

Administrative review. To hear and decide appeals from and review any order, requirement, decision or determination made by the Zoning Enforcement Officer or other administrative officer carrying out or enforcing any provision of this chapter. The concurring vote of a majority of the members of the Board shall be necessary to reverse any order, requirement, decision or determination of any such administrative official or to decide in favor of the applicant any matter upon which it is required to pass under any such law.

[1]Variance. To hear applications for variance from the terms of this chapter as will not be contrary to public interest where, owing to unique conditions, a literal enforcement of the provisions of this chapter will result in unnecessary hardship, while adhering to the spirit of this chapter and doing substantial justice. Financial disadvantage to the property owner is no proof of hardship within the purpose of zoning. Hardship must be unique and must arise from either a natural or man-made condition of the land upon which a use not in conformance with the literal terms of this chapter is proposed. Specifically, no variance shall be granted by the Board of Appeals unless:

(a)

It finds that the strict application of the provisions of this chapter would deprive the applicant of the reasonable use of the land or building for which such variance is sought, that the granting of the variance is necessary for the reasonable use of such property and that the variance granted by the Board is the minimum variance that will accomplish this purpose.

(b)

It finds that there are special circumstances or conditions applying to the land or building for which the variance is sought, which circumstances or conditions are peculiar to such land or buildings and do not apply generally to land or buildings in the vicinity or neighborhood and have not resulted from any act of the applicant subsequent to the adoption of this chapter.

(c)

It finds that the granting of the variance will be in harmony with the general purpose of this chapter, will not be injurious to the neighborhood and will not alter the essential character of the locality. In granting a variance, the Board of Appeals may prescribe appropriate conditions or safeguards that are necessary or desirable to carry out the requirements of Subsection C.

(d)

The Board of Appeals may refer any request for variance from the terms of this chapter to the Planning Board for a report. When such report is requested, the Board of Appeals shall not take final action until receipt of such report from the Planning Board or until after the passage of 45 days from such referral in the event that the Planning Board makes no report on the matter.

[Amended 2-23-1998 by L.L. No. 1-1998]

(e)

The concurring vote of a majority of the members of the Board of Appeals shall be necessary to grant a variance.

[1]

Editor's Note: Former Subsection C(2), Special permit, was repealed 2-17-2009 by L.L. No. 2-2009. This local law also provided for the redesignation of former Subsection C(3) and (4) as Subsection C(2) and (3), respectively.

Reference to the Dutchess County Planning Department. In accordance with the policy and procedures provided for by Chapter 24, Article 12B, §§ 239-l and 239-m of the General Municipal Law, any proposed variance affecting real property within 500 feet of the boundary of the Village of Millerton or from the boundary of any existing or proposed county or state park or other recreational area or from the right-of-way of any existing or proposed county or state parkway, thruway, expressway, road or highway or from the existing or proposed right-of-way of any stream or drainage channel owned by the county for which the county has established channel lines or from the existing or proposed boundary of any state-owned land on which a public building or institution is situated shall be referred to the Dutchess County Planning Department. The term "proposed" shall be deemed to include only those recreational areas, parkways, thruways, expressways, roads or highways which are shown on a County Plan of Dutchess County adopted pursuant to § 239-d(2) of the General Municipal Law or adopted as an Official Map of Dutchess County pursuant to § 239-g of the General Municipal Law. If the Dutchess County Planning Department fails to report within 30 days after receipt of a full statement of such referred material, the Board of Appeals may act without such report. If the Dutchess County Planning Department recommends a disapproval or modification of a variance, the Board of Appeals may not act contrary to such disapproval or modification except by a vote of a majority plus one of all members thereof and after the adoption of a resolution setting forth the reasons for the contrary action.

[Amended 2-17-2009 by L.L. No. 2-2009]

Special procedures relative to appeals for administrative review or variances:

[Amended 2-17-2009 by L.L. No. 2-2009]

Application for variance. An application for a variance shall be made to the Zoning Enforcement Officer, who shall, within five days of receipt, transmit such application to the Board of Appeals.

Who may appeal. An appeal to the Board of Appeals for administrative review may be taken by any person, firm or corporation aggrieved or by any governmental officer, department, board or bureau affected by any decision of the Zoning Enforcement Officer based whole or in part upon the provisions of this chapter. Such appeal shall be taken by filing with the Board of Appeals a notice of appeal specifying the grounds thereof. The Zoning Enforcement Officer shall forthwith transmit all papers constituting the records upon which the action appealed from was taken to the Board of Appeals.

Time of appeal. Said notice of appeal shall be filed within 60 days from the date upon which the notice of refusal of zoning permit or refusal of certificate of occupancy is mailed by the Zoning Enforcement Officer, and failure to file notice of appeal within 60 days shall constitute a waiver of the right to appeal.

(4)

Stay of proceedings. An appeal stays all proceedings in furtherance of the action appealed from, unless the Zoning Enforcement 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 Zoning Enforcement Officer and on due cause shown.

Hearing, notice, public notice, notice to property owners, decision and costs.

[Amended 2-23-1998 by L.L. No. 1-1998; 2-17-2009 by L.L. No. 2-2009]

Hearing. The Board of Appeals shall fix a reasonable time for the hearing of any application for variance or the hearing of an appeal for administrative review.

Notice. The Board of Appeals shall give public notice of any application for a variance or an appeal for administrative review by the publication in the official paper of a notice of such hearing at least five days prior to the date thereof and shall, at least five days prior to such hearing, mail notices thereof to the parties and to the Regional State Park Commission having jurisdiction over any state park or parkways within 500 feet of the property affected by such appeal. Notice of such an application for a variance shall also be given by registered mail at least five days prior to the date of the hearing to all persons, firms or corporations owning property or residing within 200 feet of the location of the property upon which the use is proposed to be established.

Decision and costs. Upon the hearing, any party may appear in person or by agent or by attorney, and the Board of Appeals shall decide the application for variance or appeal for administrative review within 62 days after the final hearing as provided by Village Law § 7-712 or 7-725. All costs of such publication and notice shall be paid by the applicant.

Provisions of appeal. If the variance is granted or other action by the appellant or applicant is authorized, the necessary permits shall be subject to the terms of § 170-57G. Should the appellant or applicant fail to comply with these provisions, it shall be conclusively presumed that the appellant or applicant has waived, withdrawn or abandoned his appeal or his application, and such permission and variances granted to him shall be deemed automatically rescinded by the Board of Appeals.

[Amended 2-17-2009 by L.L. No. 2-2009]

Scope. In exercising the above-mentioned powers, such Board of Appeals may, in conformity with the provisions of this chapter, 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 the powers of the officer from whom the appeal is taken. Notice of such decision shall be given forthwith to all parties in interest. The Board of Appeals does not have the power to permit a use not permitted by this chapter.

Recourse. Any person or persons, jointly or severally aggrieved by any decision of the Board of Appeals, of any officer, department, board or bureau of the Village, may apply to the Supreme Court for relief by a proceeding under Article 78 of the Civil Practice Law and Rules, and:

It must be instituted within 30 days after the filing of a decision in the office of the Village Clerk.

The court may take evidence or appoint a referee to take such evidence as it may direct and report the same with his findings of fact and conclusions of law, if it shall appear that testimony is necessary for the proper disposition of the matter.

The court as special term shall itself dispose of the cause on the merits, determining all questions which may be presented for determination.

§ 170-60 Penalties for offenses.

Remedies. In case any building or structure is erected, constructed, reconstructed, altered, converted or maintained or any building, structure or land is used in violation of this chapter, the proper local authorities of the Village, in addition to other remedies, may institute any appropriate actions or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, conversion, maintenance or use to restrain, correct or abate such violation, to prevent the occupancy of said building, structure or land or to prevent any illegal act, conduct, business or use in or about such premises.

Penalties. Any person, firm or corporation who violates, disobeys, neglects or refuses to comply with or resists the enforcement of any of the provisions of this chapter shall be guilty of a misdemeanor and upon conviction thereof shall be subject to a fine of not more than $1,000, imprisonment for not more than one year, or both such fine and imprisonment. Each week a violation is continued shall be deemed a separate offense.

[Amended 2-23-1998 by L.L. No. 1-1998]

§ 170-61 Amendments.

[Amended 2-23-1998 by L.L. No. 1-1998]

The regulations, restrictions and boundaries established by this chapter may from time to time be amended, supplemented, changed or modified or repealed by law in accordance with the procedures provided by §§ 7-706 and 7-708 of the Village Law. However, all amendments to this chapter which would change the district classification or the regulations applying to real property lying within a distance of 500 feet from the boundary of the Village of Millerton or the boundary of any existing or proposed county or state park or other recreational area or from the right-of-way of any existing or proposed county or state parkway, thruway, expressway, road or highway or from the right-of-way of any existing or proposed stream or drainage channel owned by the county for which the county has established channel lines or from the existing or proposed boundary of any county- or state-owned land on which a public building or institution is situated shall be referred to the Dutchess County Planning Department as required by § 239-m of the General Municipal Law. The term "proposed" shall be deemed to include only those recreational areas, parkways, thruways, expressways, roads or highways which are shown on a County Plan of Dutchess County adopted pursuant to § 239-d(2) of the General Municipal Law or adopted as an Official Map of Dutchess County pursuant to § 239-g of the General Municipal Law. If the Dutchess County Planning Department fails to report within 30 days after receipt of a full statement of such referred matter, the Village of Millerton may act without such report. If the Dutchess County Planning Department disapproves of the proposed amendment, supplement, change or modification or recommends modification of the proposal of the Village of Millerton, the Village Board shall not act contrary to such disapproval or recommendation except by vote of a majority plus one of all the members thereof and after the adoption of a resolution fully setting forth the reasons for such contrary act.

§ 170-61.1 Escrow deposits for review and inspection costs.

[Added 1-24-2011 by L.L. No. 1-2011]

Escrow of funds.

In connection with any application for a special permit, site plan or subdivision approval, zoning amendment, variance, or other appeal, the reviewing board may require an applicant to deposit an initial sum of money into an escrow account in advance of the review of the application. Such a deposit in escrow may be required at any stage in the application process, including for pre-application sketch plan discussions. Said sum shall be based on the estimated cost to the Village of reviewing the particular type of submission before it. In determining the initial amount to be deposited, the reviewing board may consider the professional review fees and expenses incurred by it and neighboring municipalities in reviewing similar submissions.

Use of funds.

(a)

The funds deposited shall be used to cover the reasonable and necessary costs of reviewing an application, including costs of inspection of construction and completed improvements. Costs may include consultant fees and expenses for planning, engineering, legal, and other professional and technical services required for the proper and thorough review of an application and project inspections. The reviews governed by this section shall include but not be limited to all environmental reviews, including review of a proposed action under the State Environmental Quality Review Act (SEQR).

(b)

The review fees and expenses provided for herein are in addition to application fees or administrative fees required pursuant to other sections of the Village of Millerton Village Code.

(c)

Funds deposited by an applicant pursuant to this section shall not be used to offset the Village's expenses for the general professional services that a reviewing board may receive from its consultants unrelated to the applicant's project. Funds deposited by an applicant pursuant to this section shall also not be used to offset the Village's general administrative expenses.

Deposit of funds. Upon receipt of funds requested for an escrow account, the Mayor shall cause such funds to be placed in a separate non-interest-bearing account in the name of the Village, and shall keep a separate record of all such monies deposited and the name of the applicant and project for which such sums were deposited.

Submission of vouchers.

Village consultants seeking reimbursement of their fees and expenses from an applicant-funded escrow account shall submit written vouchers to the reviewing board. These written vouchers shall provide detail sufficient to facilitate the review and audit of these vouchers for purposes of determining whether the fees and expenses are reasonable and necessary.

Promptly upon receipt of a voucher from a consultant who is seeking reimbursement of its fees and expenses from an applicant-funded escrow account, the reviewing board shall mail a copy of that voucher to the applicant. An applicant who objects to a voucher shall follow the appeal procedures described in Subsection G of this section.

Audit and review of vouchers.

The reviewing board shall preliminarily review submitted vouchers to assess whether the identified fees and expenses are reasonable and necessary. The reviewing board shall provide the Village Board with a recommendation as to whether a voucher should be approved for payment, rejected, or returned to the consultant with a request for additional information.

Upon receipt of the reviewing board's recommendation with respect to a particular voucher, the Village Board shall review and audit such voucher and shall approve payment of only such consultant charges as are reasonable in amount and necessarily incurred by the Village in connection with the review and consideration of applications and project inspections.

The amount charged by a consultant in a voucher is reasonable in amount if it bears a reasonable relationship to the average charge by consultants to the Village of services performed in connection with the review of a similar application.

(4)

The Village Board's audit and review of a consultant voucher may take into consideration the size, type and number of buildings to be constructed, the topography of the site at issue, environmental conditions at such site, the infrastructure proposed in the application, and any special conditions the Village Board may deem relevant.

(5)

The amount charged by a consultant in a voucher is necessarily incurred if it was charged by the consultant for a service which was rendered in order to protect or promote the health, safety or other vital interests of the residents of the Village, including without limitation services provided in connection with consultant review of applications for special permit, site plan or subdivision approval, zoning amendment, variances, or other appeals to the Zoning Board of Appeals.

(6)

In no event shall an applicant make direct payment to any Village consultant.

Payment of vouchers. Upon receipt and approval by the Village Board of itemized vouchers from consultants for services rendered on behalf of the Village regarding a particular application, the Mayor shall cause such vouchers to be paid out of the monies so deposited, and shall debit the separate record of such account accordingly.

Insufficient funds. If, at any time during the review of an application or the inspection of an approved project under construction, there shall be insufficient escrowed funds to pay the approved vouchers in full, or if it shall reasonably appear to the reviewing board or inspecting official that such funds will be insufficient to meet vouchers yet to be submitted, the reviewing board shall cause the applicant to deposit additional sums as the board deems necessary or advisable in order to meet such expenses or anticipated expenses.

Right of appeal.

An applicant shall have the right to appeal to the Village Board the amount of any required escrow deposit or the amount charged to an escrow account by a consultant under this section.

The applicant shall automatically waive its right to appeal any amount charged in a consultant voucher if the applicant fails to file a written notice of that appeal with the Village Board within 35 days of the date that the reviewing agency mailed such voucher.

An applicant's failure to timely file such an appeal shall be deemed a failure to exhaust administrative remedies precluding judicial review of the consultant voucher or required escrow deposit.

Suspension and revocation. In the event the applicant fails to deposit the requested review fees into an escrow account, any application review, approval, permit or certificates of occupancy may be withheld or suspended by the reviewing board, officer or employee of the Village until such monies are deposited.

Refund of unexpended balance. The applicant shall be entitled to obtain a refund of any unexpended portion of the escrowed funds that remain following completion of the application review process (including any post-approval inspections), or following the applicant's withdrawal of an application. This refund shall be made after all reasonable and necessary consultant fees and expenses incurred prior to such completion or withdrawal have been paid by the Village and deducted from the escrow account. Any balance remaining in the escrow account shall be refunded within 60 days after the applicant's request.

Joint and several liability. The owner of the subject real property, if different from the applicant, shall be jointly and severally responsible to reimburse the Village of Millerton for funds expended to compensate for services rendered to the Village under this section by private engineers, attorneys or other consultants. In order for a land use application to be deemed complete, the applicant shall provide the written consent of all owners of the subject real property acknowledging potential landowner responsibility, under this section, for engineering, legal and other consulting fees incurred by the Village. In the event that insufficient funds have been deposited in escrow and the applicant or owners fail to reimburse the Village for such fees, the following shall apply:

The Village may seek recovery of unreimbursed engineering, legal and consulting fees by action in a court of appropriate jurisdiction, and the defendant shall be responsible for the reasonable and necessary attorney's fees expended by the Village in prosecuting such action.