The provisions of this chapter shall be administered and enforced by the Zoning Administrative Officer, who shall issue building permits and zoning permits. No building permit, zoning permit, certificate of occupancy, or other permit or license shall be issued if it would be in conflict with the provisions of this chapter, Chapter
62 of the Philipstown Town Code entitled "Building Construction and Fire Prevention," or any other applicable local, state, or federal law or regulation. Applications for site plan review, special permits, and variances may be reviewed initially for completeness by an employee or consultant to the Town, if so designated by the Town Board.
The typical steps to obtain permits to erect, occupy, or change
the use of a permitted structure or lot are as follows:
A. Any person intending to undertake new construction, structural alteration, or change in the use of a building or lot shall apply to the Code Enforcement Official for a building permit or zoning permit by submitting the appropriate application form and paying the required fee. For rules governing changes of use, see §
175-10F.
B. The Code Enforcement Official shall grant or deny the permit as provided in §
175-54, or refer the application to the Planning Board (or Town Board or Zoning Board of Appeals if appropriate) if a special permit and/or site plan approval is required.
C. If a building or zoning permit is issued, the applicant may proceed
to undertake the action permitted. Upon completion of any construction,
the applicant shall apply to the Code Enforcement Official for a certificate
of occupancy (for building permits only).
D. If the Code Enforcement Official finds that the applicant's action has been taken in accordance with the building permit, the Code Enforcement Official shall issue a certificate of occupancy as provided in §
175-56 of this chapter and Chapter
62 of the Town Code, allowing the structure to be occupied.
E. If the Code Enforcement Official denies a building or zoning permit
and does not refer the application to the Planning Board or Town Board,
the applicant may appeal to the Zoning Board of Appeals.
No building or structure hereafter erected, constructed, enlarged, altered, or moved, and no enlarged, extended, altered, or relocated portion of an existing building or structure shall be occupied or used until a certificate of occupancy, certificate of compliance, or certificate of completion has been issued by the Zoning Administrative Officer, in accordance with the provisions of Chapter
62 of the Town Code, this chapter, and any other applicable laws and regulations.
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 money into an escrow account as provided in §
71-3 of the Town Code.
Pursuant to the provisions of § 267 of the Town Law,
there is hereby established a Zoning Board of Appeals consisting of
five members appointed by the Town Board. The Town Board may appoint
alternate members for terms specified by resolution, for purposes
of substituting as needed for a regular member in the event such member
is unable to participate in a particular matter or matters because
of a conflict of interest or because of an expected extended absence.
The Chairperson of the Zoning Board of Appeals may designate one of
the duly appointed alternate members to substitute for a regular member
where a regular member has a conflict of interest or expects to have
an extended absence. Such designation of an alternate member shall
be entered into the minutes of the initial Zoning Board of Appeals
meeting at which the substitution is made. To the extent that the
preceding three sentences may be inconsistent with § 267(11)
of the Town Law, the Town Board hereby expresses its intention to
supersede the Town Law in accordance with Municipal Home Rule Law,
Article 2, § 10 et seq. The Zoning Board of Appeals shall
have all the powers and duties prescribed by law and this chapter
in connection with appeals to review any order, requirement, decision,
interpretation, or determination made by an administrative official
charged with the enforcement of this chapter, generally the Zoning
Administrative Officer. An appeal may be taken by any person aggrieved
or by any officer, department, board, or bureau of the Town.
A. Appeals of orders, requirements, decisions, interpretations, or determinations.
The Zoning Board of Appeals 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. In so doing, the Zoning Board
of Appeals shall have all the powers of the administrative official
from whose order, requirement, decision, interpretation, or determination
the appeal is taken.
B. Appeals for variance.
(1) The Zoning Board of Appeals shall have the power, upon appeal from
a determination by the Zoning Administrative Officer and after public
notice and hearing, to vary or modify the application of any of the
provisions of this chapter relating to the use, construction, or alteration
of structures or the use of land, so that the spirit of this chapter
is observed, public safety and welfare secured, and substantial justice
done.
(2) All applications for variances shall be submitted to the Zoning Administrative Officer at least 10 days before the meeting of the Zoning Board of Appeals and shall be accompanied by six copies of a plot plan, drawn to scale with accurate dimensions, showing the location of all existing and proposed structures on the lot. This requirement may be modified for larger properties to show only those existing structures in the vicinity of the requested variance. An application for a use variance may require submission of an agricultural data statement pursuant to §
175-37C.
(3) Any variance which is not exercised by application for a zoning permit
or by otherwise commencing the use within two years of the date of
issuance shall automatically lapse.
C. Use variances.
(1) The Zoning Board of Appeals, on appeal from a decision or determination
of the Zoning Administrative Officer, shall have the power to grant
use variances, authorizing a use of the land which otherwise would
not be allowed by this chapter. No use variance shall be granted without
a showing by the applicant that applicable zoning regulations and
restrictions have caused unnecessary hardship to the applicant. In
order to prove unnecessary hardship, the applicant shall demonstrate
that for each and every permitted use under this chapter for the district
in which the applicant's 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)
The alleged hardship has not been self-created.
(2) Failure to demonstrate any one of the requirements in Subsection
C(1)(a) through
(d) above is sufficient to justify the denial of a use variance.
(3) The Zoning Board of Appeals shall consider any agricultural data statement submitted pursuant to §
175-37C.
(4) The Zoning Board of Appeals, in granting use variances, shall grant
the minimum variance that it deems 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.
(5) In addition to the grounds for granting a use variance in Subsection
C(1) above, a use variance may also be granted if the applicant can prove, by competent financial evidence, deprivation of all economically beneficial use of the property. In such a case, the Zoning Board of Appeals shall grant only the minimum variance necessary to allow an economically beneficial use.
(6) If the use variance is granted for a nonresidential use, the applicant
shall obtain site plan approval from the Planning Board prior to commencing
the use or obtaining a building permit or zoning permit.
D. Area variances.
(1) The Zoning Board of Appeals shall have the power, upon an appeal
from a decision or determination of the Zoning Administrative Officer,
to grant area variances from the area or dimensional requirements.
(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 of such grant. In making
its 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 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 shall
be relevant to the decision of the Board, but which shall not necessarily
preclude the granting of the area variance.
(3) The Zoning Board of Appeals, in the granting of area variances, shall
grant the minimum variance that it deems necessary and adequate, while
preserving and protecting the character of the neighborhood and the
health, safety, and welfare of the community.
E. Imposition of conditions. The Zoning Board of Appeals shall, in granting
use variances and area variances, impose such reasonable conditions
and restrictions as are directly related to and incidental 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 the variance may have
on the neighborhood or community.
F. Procedures.
(1) Application. Appeals shall be taken by filing a written notice of
appeal and any required plans with the Zoning Administrative Officer
and the Zoning Board of Appeals within 60 days after the filing of
the order, requirement, decision, interpretation, or determination
that is being appealed, on forms prescribed by the Zoning Board of
Appeals. Such application shall refer to the specific provision of
this chapter involved and shall specify the grounds for the variance
requested, the interpretation claimed, or for the reversal of an order,
requirement, decision, or determination of an administrative official.
The Zoning Administrative Officer shall forthwith transmit all the
papers constituting the record of the appeal to the Zoning Board of
Appeals.
(2) Referral to Putnam County Department of Planning and Development.
(a)
Requests for variances that require referral to the Putnam County
Department of Planning and Development shall be so referred pursuant
to General Municipal Law, Article 12-B, §§ 239-1 and
239-m, as amended.
(b)
No action shall be taken on variances referred to the Putnam
County Department of Planning and Development until its recommendation
has been received, or 30 days have elapsed after its receipt of the
full statement of the proposed variance, unless the county and Town
agree to an extension beyond the thirty-day requirement for the Putnam
County Department of Planning and Development's review.
(c)
County disapproval. A majority-plus-one vote shall be required
to approve any variance which receives a recommendation of disapproval
from the Putnam County Department of Planning and Development because
of the referral process specified above, along with a resolution setting
forth the reasons for such contrary action.
G. Hearing and public notice.
(1) If an agricultural data statement has been submitted, the Secretary
of the Zoning Board of Appeals shall, upon receipt of any variance
application, mail written notice of the application to the owners
of land as identified by the appellant in the agricultural data statement.
Such notice shall include a description of the proposed variance and
its location. The cost of mailing the notice shall be borne by the
appellant.
(2) The Zoning Board of Appeals shall set a reasonable time after receipt
of a complete application for the hearing of appeals.
(3) The Secretary of the Zoning Board of Appeals shall refer all applications
for use variances to the Planning Board for a report prior to the
public hearing. If the Planning Board does not report within 30 days
of such referral, the Zoning Board of Appeals may take action without
the Planning Board's report.
(4) At least five days prior to the date of the hearing of appeals, the
Zoning Board of Appeals shall publish notice of such hearing in the
official newspaper, mail notice thereof to the Planning Board, simultaneously
with the appeal being placed on the Zoning Board Agenda, and send
notice by first-class mail to all property owners within 200 feet
of the property upon which the appeal is taken as shown on the most
recently adopted tax assessment roll. The cost of publishing and mailing
such notices shall be borne by the appellant.
[Amended 11-20-2012 by L.L. No. 3-2012]
(5) If the application is for a use variance on property located within
500 feet of the boundary of an adjacent municipality, notice of the
hearing shall be sent to the Clerk of the adjacent municipality by
mail or electronic transmission at least 10 days prior to such hearing,
and such adjacent municipality may appear and be heard.
(6) At the hearing, any party may appear in person or by agent or by
attorney.
(7) The Zoning Board of Appeals may adjourn the hearing for a reasonable period in order to cause such further notice as it deems proper to be served upon such other property owners as it decides may be interested in the appeal. If the hearing is adjourned for more than 30 days, the Board may require that it be renoticed as provided in Subsection
G(4) above.
H. Action. The Zoning Board of Appeals may reverse, affirm, or modify,
wholly or in part, the order, requirement, decision, interpretation
or determination of the administrative official in accordance with
the provisions of this chapter.
(1) Any such action shall be decided within 62 days after the close of
the hearing.
(2) Every decision of the Zoning Board of Appeals shall be approved by
vote of a majority of the members by resolution which contains a full
record of the findings and rationale for the decision. If the Zoning
Board of Appeals acts contrary to the recommendations of the Town
Planning Board or the Putnam County Department of Planning and Development,
it shall give written reasons for such action.
I. Filing. Every order, requirement, decision, interpretation, or determination
of the Zoning Board of Appeals shall be filed in the office of the
Town Clerk within five business days after the decision is rendered,
and shall be a public record. A copy thereof shall be placed in the
permanent file of the property and shall also be mailed to the appellant
within the same five-day period.
J. Court review of Board decisions. Any person or persons jointly or
severally aggrieved by any decision of the Zoning Board of Appeals
may apply to the Supreme Court for review by a proceeding under Article
78 of the Civil Practice Law and Rules and § 267-c of the
Town Law.
K. Expiration of appeal decision. Unless otherwise specified by the
Zoning Board of Appeals, a decision on any appeal shall expire if
the appellant fails to obtain any necessary building permit within
12 months of the date of such decision.
L. Stay of proceedings. An appeal shall stay all proceedings in furtherance
of the action appealed from unless the Zoning Administrative Officer
certifies for the Zoning Board of Appeals, after the notice of appeal
has been filed, that such a stay of proceedings would, in the Zoning
Administrative Officer's opinion, cause imminent peril to life or
property by reason of facts stated in the certificate. In such a case,
proceedings shall not be stayed except by a restraining order granted
by the Zoning Board of Appeals or by the Supreme Court on application,
on notice to the Zoning Administrative Officer for due cause shown.