[Amended 5-13-1999 by L.L. No. 1-1999]
A.
Creation; appointment; organization. A Zoning Board of Appeals is
hereby created in accordance with Article 16, § 267, of
the Town Law. Said Board shall consist of five members appointed by
the Town Board. The Town Board, by resolution, shall fix the members'
terms so that one member's term shall expire at the end of each year
for five calendar years. At the expiration of each original member's
appointment, the replacement member shall be appointed for a term
of five years. The Town Board shall annually designate the Chairperson
of the Board of Appeals from among the Board's members, while the
Board of Appeals shall annually designate its Secretary and may prescribe
reasonable rules in addition to those provided herein for the conduct
of its affairs.
B.
Training and continuing education requirements. All members of the
Zoning Board of Appeals, including the Zoning Board of Appeals alternate,
shall be required to comply with the training requirements set forth
in Town Law § 267, Subdivision 7-a. The Town of Poestenkill
shall reimburse the attending member for the fair and reasonable costs
incurred in connection with any such training. The Zoning Board of
Appeals shall be responsible for maintaining training records for
its members.[1]
C.
Attendance requirements. All members of the Zoning Board of Appeals
must attend not fewer than 75% of all regularly and specially scheduled
meetings of the Board. If any absences are either caused by circumstances
beyond the control of the member or authorized in advance by the Chairperson
of the ZBA within policy guidelines set by the Town Board, such absences
may be waived by the Town Board in calculating the attendance percentage.
Once a member has served for a period covering four or more meetings
of the ZBA, the Chairperson of the Zoning Board of Appeals shall notify
the Town Board whenever the total number of all missed meetings (including
both those which may be waived and those which may not be waived)
for such member exceeds the twenty-five-percent maximum permitted.
D.
Removal of members. The Town Board shall have the power to remove,
after public hearing, any member of the Zoning Board of Appeals for
cause, including noncompliance with the minimum requirements relating
to meeting attendance and training as hereby established.
The Board of Appeals shall have all the powers and duties prescribed by law by this chapter and by Chapter 132, Flood Damage Prevention, of this Code, which are more particularly specified as follows:
A.
Interpretation. To hear and decide by affirmation, reversal or modification, wholly or in part, questions where it is alleged that there is an error in any order, requirement, decision or determination made by the Code Enforcement Officer involving the interpretation of any provision of this chapter or Chapter 132, Flood Damage Prevention, or, on request by an administrative official, board or agency of the Town, to decide any of the following questions:
(1)
Determination of the meaning of any portion of the text of this chapter
or of any conditions or requirements specified or made under the provisions
of this chapter; or
B.
Variances. To authorize, upon appeal from a decision of the Code Enforcement Officer charged with the enforcement of the zoning laws, variances from the terms of this chapter and Chapter 132, Flood Damage Prevention. Appeals for area variances within plats under subdivision consideration by the Planning Board do not require a prior decision by the Code Enforcement Officer.
(1)
Use variances.
(a)
A use variance shall be granted by the Board of Appeals only
with 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
Board of Appeals that, for each and every permitted use under the
zoning regulations for the particular district where the property
is located:
[1]
The applicant cannot realize a reasonable return, provided that
lack of return is substantial as demonstrated by competent financial
evidence;
[2]
The alleged hardship relating to the property in question is
unique and does not apply to a substantial portion of the district
or neighborhood;
[3]
The requested use variance, if granted, will not alter the essential
character of the neighborhood; and
[4]
The alleged hardship has not been self-created.
(b)
The 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 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.
(2)
Area variances.
(a)
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:
[1]
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;
[2]
Whether the benefit sought by the applicant can be achieved
by some method, feasible for the applicant to pursue, other than an
area variance;
[3]
Whether the requested area variance is substantial;
[4]
Whether the proposed variance will have an adverse effect or
impact on the physical or environmental conditions in the neighborhood
or district; and
[5]
Whether the alleged difficulty was self-created, which consideration
shall not necessarily preclude the granting of the area variance.
(b)
The 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.
(3)
Imposition of conditions. The 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 and incidental to the proposed use of the property and/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.
The Zoning Board of Appeals shall act in strict accordance with
the procedure specified by § 267 of the Town Law and this
chapter.
A.
Meetings. Meetings shall be held at the call of the Chairman or at
such other times as the Board of Appeals may determine. In order to
issue an interpretation, reverse a decision of the Code Enforcement
Officer or authorize a variance, an affirmative vote of at least three
members shall be required. A favorable vote of at least four members
shall be required if the action taken is contrary to an advisory recommendation
received from the Rensselaer County Planning Office under the provisions
of § 239-m of the General Municipal Law. The Board shall
keep minutes of its proceedings showing the vote of each member upon
each question and shall keep records of its examinations and other
official actions. All meetings of the Board of Appeals shall be open
to the public.
B.
Application and fee. All appeals and requests made to the Board shall
be in writing, on forms prescribed by the Board, within 60 days of
the action appealed from and shall be accompanied by the applicable
fee established by the Town Board pursuant to Local Law No. 1 of the
Year 2003.[1] Every appeal or request shall refer to the specific provision
of this chapter that is involved and shall precisely set forth either
the interpretation that is claimed or the details of the variance
that is applied for and the grounds on which it is claimed that such
variance should be granted.
[Amended 2-19-2003 by L.L. No. 1-2003]
C.
Public notice and hearing. The Board shall fix a reasonable time
and place for a public hearing. The appellant shall be given notice
of the hearing, at which he shall appear in person or by agent. The
Board shall additionally provide notice as follows:
(1)
By publishing at least five calendar days prior to the date thereof
a legal notice in the official newspaper of the Town.
(2)
By mailing notice of the public hearing and data regarding the substance
of the appeal to the owners of all property opposite and adjacent
to that held by the applicant. Notice shall be provided by certified
mail at least five calendar days prior to the hearing, with compliance
with this notification procedure certified to by the Secretary.
(a)
The names of owners notified shall be taken as such appear on
the last completed tax roll of the Town.
(b)
Provided that there has been substantial compliance with these
provisions, the failure to give notice in exact conformance herewith
shall not be deemed to invalidate an action taken by the Board of
Appeals in connection with granting or denying of an appeal for a
variance.
(3)
By transmitting to the Clerk of the Planning Board a copy of any
appeal for a variance, together with a copy of the notice of such
hearing, at least 30 calendar days prior to the date thereof. The
Board of Appeals shall request that the Planning Board submit to the
Board of Appeals an advisory opinion prior to the date of such hearing.
Upon failure of the Planning Board to submit such report, said Board
shall be deemed to have recommended approval of the application of
appeal.[2]
(4)
If the land involved in the appeal lies within 500 feet of the boundary
of any other municipality, the Secretary of the Board of Appeals shall
also submit, at least five calendar days prior to the public hearing,
to the municipal clerk of such other municipality or municipalities
a copy of the notice of the substance of every appeal, together with
a copy of the official notice of such public hearing.
D.
Required referral. A full statement of any appeal that meets the
referral requirements of § 239-m of the General Municipal
Law shall also be referred not less than five days prior to the public
hearing to the Rensselaer County Planning Office. No action shall
be taken by the Board of Appeals on such appeal until an advisory
recommendation has been received from said office or 30 calendar days
have elapsed since the office received such full statement.
E.
Decisions. Every decision of the Board of Appeals on an appeal or
request shall be made within 62 days of the close of the hearing by
the Board, shall be recorded in accordance with standard forms adopted
by the Board, shall fully set forth the circumstances of the case
and shall contain a full record of the findings on which the decision
is based. Every decision shall be by resolution of the Board, with
each such decision being filed in the office of the Town Clerk within
five business days thereof. The Board shall also notify the Code Enforcement
Officer, the Clerk of the Planning Board and any affected municipality
given notice of hearing of its decision in each case. If applicable,
a report on the action taken shall also be filed within seven calendar
days of said action with the Rensselaer County Planning Office.[3]
F.
Effect of appeal. Unless the Code Enforcement Officer finds there
to be an imminent peril to either life or property, an appeal stays
all proceedings in furtherance by either the Town or appellant related
to the action which is the subject of the appeal.
G.
Expiration of approval. Unless construction or use is commenced and
diligently pursued within one calendar year from the date of the granting
of a variance, such variance shall become null and void without further
hearing by the Board of Appeals.
H.
Strict construction. All the provisions of this chapter relating
to the Board of Appeals shall be strictly construed. The Board of
Appeals, as a body of limited jurisdiction, shall act in full conformity
with all provisions of law and of this chapter and in strict compliance
with all limitations contained therein; provided, however, that if
the procedural requirements set forth in this chapter have been substantially
observed, no applicant or appellant shall be deprived of the right
of application or appeal.
Any person or persons, jointly or severally, aggrieved by any
decision of the Board of Appeals may apply to the Supreme Court of
the State of New York for relief through 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 specific provisions of Article
78, except that the action must be initiated as therein provided within
30 days after the filing of the Board's decision in the office of
the Town Clerk.
