A.
The Zoning Board of Appeals shall perform the duties and powers prescribed
by the laws of New York State and by this chapter in connection with
requests for variances from this chapter and appeals to review any
order, requirement, decision, interpretation or determination made
by officials charged with the enforcement of this chapter. Unless
otherwise provided by this chapter, the jurisdiction of the Zoning
Board of Appeals shall be appellate only and shall be limited to hearing
and deciding appeals from and reviewing any order, requirement, decision,
interpretation or determination made by the administrative officials
charged with the enforcement of this chapter.
B.
Permitted action. An appeal may be taken by any person aggrieved
or by any officer, department, board or bureau of the Town aggrieved
by any order, requirement, decision, interpretation or determination
made by officials charged with the enforcement of this chapter. The
Zoning Board of Appeals may reverse or affirm, wholly or in part,
or may modify any order, requirement, decision, interpretation or
determination made by officials charged with the enforcement of this
chapter, including granting area or use variances. In so doing, the
Zoning Board of Appeals shall have all of the powers of such officials
in granting relief in the form of reversal, modification, affirmation,
interpretation or determination.
The Zoning Board of Appeals shall have the power to vary or
modify the application of this chapter where it imposes practical
difficulties or unnecessary hardship. Upon appeal for a variance,
and after public notice and hearing, the Zoning Board of Appeals may
grant such variances relating to the use, area, construction or alteration
of structures or use of land so that the spirit of this chapter is
observed, public safety and welfare secured and substantial justice
done.
A.
Use variances.
(1)
Use variances shall not be granted by the Board of Appeals without
a showing by the applicant that applicable zoning regulations and
restrictions have caused an unnecessary hardship. In order to prove
such unnecessary hardship, the applicant shall demonstrate to the
Zoning Board of Appeals that, for each and every permitted use under
the zoning regulations for the particular district where the property
is located:
(a)
The applicant cannot realize a reasonable return, provided that
lack of return is substantial, as demonstrated by competent financial
evidence;
(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;
(c)
The requested use variance, if granted, will not alter the essential
character of the neighborhood; and
(d)
That the alleged hardship has not been self-created.
(2)
The Zoning Board of Appeals, in the granting of use variances, shall
grant the minimum variance that it deems 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.
B.
Area variances.
(1)
In its consideration of area variances, the Board of Appeals shall
take into account 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 of Appeals 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 area 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 Zoning Board of Appeals but
shall not necessarily preclude the granting of the area variance.
(2)
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.
C.
Imposition
of conditions. The Zoning 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 the proposed use of the property. Such conditions shall be consistent
with the spirit and intent of this chapter and shall be imposed for
the purpose of minimizing any adverse impact such variance may have
on the Town of Austerlitz.
A.
Application. Application for appeal shall be in writing and must
be filed with the Code Enforcement Officer within 60 days after the
filing of the order, requirement, decision, interpretation or determination
that is being appealed. Such application shall refer to the specific
provisions of this chapter involved and shall specify the grounds
for the variance requested, the interpretation claimed or the reversal
of an order, requirement, decision or determination of an administrative
official and the relief sought. The Code Enforcement Officer shall
forward the application to the Zoning Board of Appeals. The Zoning
Board of Appeals may request additional information, including but
not limited to any or all of the items listed in this chapter.
B.
SEQRA. The Zoning Board of Appeals shall comply with the provisions
of the New York State Environmental Quality Review Act under Article
8 of the Environmental Conservation Law and its implementing regulations
as codified in Title 6, Part 617, of the New York Codes, Rules and
Regulations.
C.
Meetings. Meetings of the Zoning Board of Appeals shall be open to
the public to the extent provided by law. The Zoning 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 examinations and other official
actions.
D.
Assistance of employees. The Zoning Board of Appeals shall have the
authority to call upon any department, agency or employee of the Town
for such assistance as shall be deemed necessary and as shall be authorized
by the Town Board. Such department, agency or employee may be reimbursed
for any expenses incurred as a result of such assistance.
E.
Hearing on appeal. The Zoning Board of Appeals shall fix a reasonable
time for the hearing of an appeal 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 to the Board of Appeals prior to the hearing
of such appeal. Upon the hearing, any party may appear in person or
by agent or attorney.
F.
Time of decision. The Zoning Board of Appeals shall decide upon the
appeal within 62 days after such hearing. The time within which the
Zoning Board of Appeals must render its decision may be extended by
mutual consent of the applicant and the Zoning Board of Appeals.
G.
Filing requirements and notice of decision. Every rule, regulation,
every amendment or repeal thereof, and every order, requirement, decision
or determination of the Zoning Board of Appeals shall be filed in
the office of the Town Clerk and shall be a public record. Decisions
of the Zoning Board of Appeals on appeal shall be filed within five
business days after the day such decision is rendered, and a copy
thereof mailed to the applicant.
H.
Notice to Park Commission and County Planning Board. At least five
days before said hearing, the Zoning Board of Appeals shall mail notices
thereof to the parties, to the regional State Park Commission having
jurisdiction over any state park or parkway within 500 feet of the
property affected by such appeal and to the County Planning Board
as required by § 239-m of the General Municipal Law, which
notice shall be accompanied by a full statement of such proposed action
as defined in Subdivision 1 of § 239-m of the General Municipal
Law.
I.
Voting requirements.
(1)
Decision of the Board. Except as otherwise provided in Subsection J hereof, every motion or resolution of the Zoning Board of Appeals shall require for its adoption the affirmative vote of a majority of all the members of the Zoning Board of Appeals as fully constituted, regardless of vacancies or absences. Where an action is the subject of a referral to the County Planning Board, the voting provisions of § 239-m of the General Municipal Law shall apply.
(2)
Default denial of appeal. In exercising its appellate jurisdiction only, if an affirmative vote of a majority of all members of the Zoning Board of Appeals is not attained on a motion or a resolution to grant a variance or reverse any order, requirement, decision or determination of the enforcement official within the time allowed by Subsection F of this section, the appeal is denied. The Zoning Board of Appeals may amend the failed motion or resolution and vote on the amended motion or resolution within the time allowed without being subject to the rehearing process set forth in Subsection J of this section.
J.
Rehearing. A motion for the Zoning Board of Appeals to hold a rehearing
to review any order, decision or determination of the Zoning Board
of Appeals not previously reheard may be made by any member of the
Zoning Board of Appeals. A unanimous vote of all members of the Zoning
Board of Appeals then present is required for such rehearing to occur.
Such rehearing is subject to the same notice provisions as an original
hearing. Upon such rehearing, the Zoning Board of Appeals may reverse,
modify or annul its original order, decision or determination upon
the unanimous vote of all members then present, provided that the
Board of Appeals finds that the rights vested in persons acting in
good faith in reliance upon the reheard order, decision or determination
will not be prejudiced thereby.
K.
Stay upon appeal. An appeal shall stay all proceedings in furtherance
of the action appealed from, unless the administrative official charged
with the enforcement of this chapter, from whom the appeal is taken,
certifies to the Zoning Board of Appeals, after the notice of appeal
is filed, that, by reason of facts stated in the certificate, a stay
would, in his or her opinion, cause imminent peril to life or property,
in which case proceedings shall not be stayed other than by a restraining
order, which may be granted by the Zoning Board of Appeals or by a
court with jurisdiction on application, with notice to the administrative
official from whom the appeal is taken and on due cause shown.
L.
Expiration of appeal decision. Unless otherwise specified by the
Zoning Board of Appeals, and without any further hearing by the Zoning
Board of Appeals, a decision on any appeal, including the granting
of area and use variances, shall automatically lapse and expire if
the applicant fails to exercise the variance or fails to obtain any
necessary building permits within one year of the date the decision
is filed.
