[Amended 3-25-1992 by L.L. No. 3-1992[1]]
[1]
Editor's Note: This local law also provided
that this article shall take effect 7-1-1992.
A.
Establishment. Pursuant to the provisions of § 267
of the Town Law, a Zoning Board of Appeals (ZBA) is hereby established
in the Town of Neversink.
B.
Appointment of members. The ZBA shall consist of five
members to be appointed by the Town Board. The Town Board shall designate
the Chairperson thereof. In the absence of a Chairperson the ZBA may
designate a member to serve as Acting Chairperson. The Town Board
may provide for compensation to be paid to experts, clerks and a secretary
and provide for such other expenses as may be necessary and proper,
not exceeding the appropriation made by the Town Board for such purpose.
C.
Town Board members ineligible. No person who is a
member of the Town Board shall be eligible for membership on the ZBA.
D.
Terms of members first appointed. In the creation
of a new ZBA or the reestablishment of terms of an existing ZBA, the
appointment of members to the ZBA shall be for terms so fixed that
one member's term shall expire at the end of the calendar year in
which such member was initially appointed. The remaining members'
terms shall be so fixed that one member's term shall expire at the
end of each year thereafter. At the expiration of each original member's
appointment, the replacement member shall be appointed for a term
which shall be equal in years to the number of members of the Board.
E.
Terms of members now in office. Members now holding
office for terms which do not expire at the end of a year shall, upon
the expiration of their term, hold office until the end of the year
and their successors shall then be appointed for terms which shall
be equal in years to the number of members of the ZBA.
F.
Vacancy in office. If a vacancy shall occur otherwise
than by expiration of term, the Town Board shall appoint the new member
for the unexpired term.
G.
Removal of members. The Town Board shall have the
power to remove any member of the ZBA for cause and after public hearing.
H.
Chairperson duties. All meetings of the ZBA shall
be held at the call of the Chairperson and at such other times as
such Board may determine. Such Chairperson or, in his or her absence,
the Acting Chairperson may administer oaths and compel the attendance
of witnesses.
I.
Alternate
members.
[Added 11-3-2010 by L.L. No. 2-2010]
(1)
Applicability. This subsection shall apply to the appointment, terms,
functions and powers of alternate members appointed to serve on the
Zoning Board of Appeals in the Town of Neversink.
(2)
Findings; use of alternate members authorized. It is sometimes difficult
to maintain a quorum on the Zoning Board of Appeals because members
are ill or on extended vacation or find they have a conflict of interest
situation on a specific matter before such Board. In such instances,
official business cannot be conducted, which may delay or impede adherence
to required timelines. The use of alternate members in such instances
is hereby authorized pursuant to the provisions of this article.
(3)
ALTERNATE MEMBER
MEMBER
Definitions. As used in this subsection, the following terms shall
have the meanings indicated:
An individual appointed by the Town Board when a regular
member is unable to participate on an application or matter before
the respective Board, as provided herein.
An individual appointed by the Town Board to serve on the
Town Zoning Board of Appeals pursuant to the provisions of the local
laws or ordinance which first established such Board.
(4)
Purpose; appointment and designation of alternate members.
(a)
The Town Board of the Town of Neversink hereby enacts this subsection
to provide a process for appointing alternate members of the Zoning
Board of Appeals. These individuals would serve when members are absent
or unable to participate on an application or matter before the respective
Board.
(b)
Alternate members of the Zoning Board of Appeals may be appointed
by the Town Board or other duly authorized appointing authority for
a term of three years, with the terms to expire on December 31 of
the third year after the date of their appointment.
(c)
The Chairperson of the Zoning Board of Appeals may designate
an alternate to substitute for a member when such member is unable
to participate on an application or matter before the Board. When
so designated, the alternate member shall possess all the powers and
responsibilities of such member of the Board. Such designation shall
be entered into minutes of the initial Board meeting at which the
substitution is made.
(d)
All provisions of state law relating to Zoning Board of Appeals
member eligibility, vacancy in office, removal, compatibility of office
and service on other boards, as well as any provisions of a local
law/local ordinance relating to training, continuing education, compensation
and attendance, shall also apply to alternate members.
J.
Supersession
of New York State Town Law. This subsection is hereby adopted pursuant
to the provisions of § 10 of the New York State Municipal
Home Rule Law and § 10 of the New York State Statute of
Local Governments. It is the intent of the Town Board, pursuant to
§ 10 of the New York State Municipal Home Rule Law, to supersede
the provisions of:
[Added 11-3-2010 by L.L. No. 2-2010]
A.
Rules and regulations. The ZBA is hereby authorized
to adopt rules and regulations for the conduct of its business consistent
with this chapter and the Town Law.
B.
Burden of proof. The burden of proof in connection
with all matters relating to an appeal or variance shall be wholly
with the applicant.
C.
Meetings, minutes, records. Meetings of such ZBA shall
be open to the public to the extent provided in Article 7 of the Public
Officers Law. Such ZBA 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.
Filing requirements. Every rule and regulation, every
amendment or repeal thereof and every order, requirement, decision
or determination of the ZBA shall immediately be filed in the office
of the Town Clerk and shall be a public record.
E.
Assistance to ZBA. The ZBA 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 shall be reimbursed
for any expenses incurred as a result of such assistance.
F.
Hearing appeals. The jurisdiction of the ZBA 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 an administrative official charged with the
enforcement of this chapter. The concurring vote of a majority of
the members of the ZBA shall be necessary to reverse any order, requirement,
decision or determination of any such administrative official or to
grant a use variance or area variance. Such appeal may be taken by
any person aggrieved or by an officer, department or board of the
Town.
G.
Time of appeal. Such appeal shall be taken within
60 days after the filing of any order, requirement, decision, interpretation
or determination of the administrative officer charged with the enforcement
of this chapter by filing with such administrative official and with
the ZBA a notice of appeal, specifying the grounds thereof and the
relief sought. The administrative official from whom the appeal is
taken shall forthwith transmit to the ZBA all the papers constituting
the record upon which the action appealed from was taken. The cost
of sending or publishing any notices relating to such appeal shall
be borne by the appealing party and shall be paid to the ZBA prior
to the hearing of such appeal.
H.
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 ZBA, after the notice of appeal shall
have been filed with the administrative official, 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 otherwise than by a restraining order which may
be granted by the ZBA or by a court of record on application, on notice
to the administrative official from whom the appeal is taken and on
due cause shown.
I.
Hearing on appeal. The ZBA shall fix a reasonable
time for the hearing of the appeal or other matter referred to it
and give public notice thereof by the publication in a newspaper of
general circulation in the Town of a notice of such hearing, at least
five days prior to the date hereof. In addition, the ZBA shall cause
notice of such hearing to be provided to the owners of property within
500 feet of the parcel subject to the appeal as identified on the
latest assessment roll of the Town of Neversink. Such notice shall
be given by certified mail at least 10 days in advance of such hearing.
All costs associated with providing such notice shall be borne by
the appellant.
[Amended 1-23-2008 by L.L. No. 1-2008]
J.
Time of decision. The ZBA shall decide upon the appeal
within 62 days after the conduct of said hearing. The time within
which the ZBA must render its decision may be extended by mutual consent
of the applicant and the ZBA.
K.
Filing of decision and notice. The decision of the
ZBA on the appeal shall be filed in the office of the Town Clerk within
five business days after the day such decision is rendered and a copy
thereof mailed to the applicant.
L.
Notice to park commission or planning agency. At least
five days before such hearing, the ZBA shall mail notice 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 Agency, as required by
§ 239-m of the General Municipal Law, which notice shall
be accompanied by a full statement of the matter under consideration,
as defined in Subdivision 1 of § 239-m of the General Municipal
Law.
M.
Compliance with State Environmental Quality Review
Act. The ZBA shall comply with the provisions of the 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.
A.
Interpretations, requirements, decisions, determinations.
The ZBA may reverse or affirm, wholly or partly, or may modify the
order, requirement, decision, interpretation or determination appealed
from and shall make such order, requirement, decision, interpretation
or determination as in its opinion ought to have been made in the
matter by the administrative official charged with the enforcement
of this chapter and to that end shall have all the powers of the administrative
official from whose order, requirement or decision the appeal is taken.
B.
Use variances.
(1)
The ZBA, on appeal from the decision or determination
of the administrative official charged with the enforcement of this
chapter, 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 a ZBA 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 ZBA that:
(a)
Under applicable zoning regulations, the applicant
is deprived of all economic use or benefit from the property in question,
which deprivation must be established 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)
The alleged hardship has not been self-created.
(3)
The ZBA, in 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.
C.
Area variances.
[Amended 1-13-1993 by L.L. No. 1-1993]
(1)
The ZBA shall have the power, upon an appeal from
a decision or determination of an administrative official charged
with the enforcement of this chapter, to grant area variances from
the area or dimensional requirements of this chapter.
(2)
In making its determination, the ZBA 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 ZBA shall also consider whether:
(a)
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)
The benefit sought by the applicant can be achieved
by some method, feasible for the applicant to pursue, other than an
area variance;
(c)
The requested area variance is substantial;
(d)
The proposed variance will have an adverse effect
or impact on the physical or environmental conditions in the neighborhood
or district; and
(e)
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.
(3)
The ZBA, 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.
D.
Imposition of conditions. The ZBA 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 or the period
of time such variance shall be in effect. 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 neighborhood or community.
E.
Limitation on rehearings. Whenever the ZBA, after
hearing all the evidence presented upon an application or appeal under
the provisions of this chapter, denies the same, the ZBA shall refuse
to hold further hearings on said or substantially similar application
or appeal by the same applicant, his successor or assign for a period
of one-year unless the ZBA shall find and determine from the information
supplied by the request for a rehearing that changed conditions have
occurred relating to the promotion of the public health, safety, convenience,
comfort, prosperity and general welfare and that a reconsideration
is justified.
F.
Application to Supreme Court by aggrieved persons.
Any person or persons, jointly or severally aggrieved by any decision
of the ZBA or any officer, department, board or bureau of the Town,
may apply to the Supreme Court for review by a proceeding under Article
78 of the Civil Practice Law and Rules. Such proceeding shall be instituted
within 30 days after the filing of a decision by the ZBA in the office
of the Town Clerk.
