The Board of Appeals shall have all the powers and duties prescribed
by law and more particularly specified by this chapter. However, none
of the following provisions shall be deemed to limit any power of
the Board that is conferred by law.
A. Interpretation. Upon appeal from a decision, order, requirement or
determination made by an administrative official, to decide any of
the following questions:
(1) The meaning of any portion of the text of this chapter or of any
condition or requirement specified or made under the provisions of
this chapter.
(2) The exact location of any district boundary shown on the Zoning Map.
B. Variances.
[Amended 10-27-1997 by L.L. No. 6-1997]
(1) Use variances.
(a)
The Board of Appeals, on appeal from the decision or determination
of the Building Inspector, shall have the power to grant use variances.
(b)
No such use variance shall be granted by the Board of Appeals
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
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 and demonstrated by competent financial
evidence.
[2]
That 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]
That the requested use variance, if granted, will not alter
the essential character of the neighborhood.
[4]
That the alleged hardship has not been self-created.
(c)
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 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.
(2) Area variances.
(a)
The Zoning Board of Appeals shall have the power, upon an appeal
from a decision or determination of the Building Inspector, to grant
area variances.
(b)
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.
[5]
Whether 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.
(c)
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) In no case shall a variance be granted solely for reasons of additional
financial gain to the owner of the land or building involved. The
fact that the improvements already existing at the time of the application
are old, obsolete, outmoded or in disrepair, or the fact that the
property is then unimproved, shall not be deemed to make the plight
of the property unique or to contribute thereto.
(4) Where the Board of Appeals finds the zoning classification of a particular
property to be conducive to the deprivation of the reasonable use
of the land or buildings, and where the Board finds the same condition
to apply generally to other land or buildings in the same neighborhood
or zoning district, the Board of Appeals shall call this condition
to the attention of the Village Board.
(5) In all cases where the Board of Appeals grants a variance from the
strict application of the requirements of this chapter, it shall be
the duty of the Board to attach such conditions and safeguards as
may be required in order that the result of its action may be as nearly
as possible in accordance with the spirit and intent of this chapter.
(6) Unless construction is commenced and diligently pursued within six
months of the date of the granting of a variance, such variance shall
become null and void.
C. Procedure. The powers and duties of the Board of Appeals shall be
exercised in accordance with § 7-712 of the Village Law,
the procedures specified by this chapter and their own bylaws.
(1) All appeals and applications made to the Board of Appeals shall be in writing in a form prescribed by the Board of Appeals and shall be accompanied by a fee as set forth in the fee schedule established by the Village Board, payable to the Village Clerk for not less than the actual and necessary costs of advertising and holding a public hearing. The Board of Appeals may, in its discretion, recommend a refund to the applicant for part or all of the fee paid by him in the event that his appeal under Subsection
A, Interpretation, is partially or wholly successful. The fee filed in connection with applicants under Subsection
B, Variances, shall not be returnable regardless of the disposition of the case by the Board.
(2) The Board of Appeals shall not decide upon any appeal for a variance
or an interpretation of this chapter without first holding a public
hearing, notice of which, including the substance of the appeal or
application, shall be given by publication in the official newspaper
of the Village at least five days prior to the date of the hearing.
In addition to the published notice, the Board of Appeals shall notify
by mail at least five days before the hearing all owners of property
which lie adjacent to the property for which relief is sought and
to such other owners as the Board of Appeals may deem advisable.
(3) The Board of Appeals shall schedule a hearing on each appeal for
a variance or interpretation of this chapter within 45 days from receipt
of the appeal. The Board of Appeals shall render its decision on each
appeal within 62 days after the final hearing.
(4) Fifteen days prior to the date of any public hearing, the Secretary
of the Board of Appeals shall transmit to the Secretary of the Planning
Board a copy of any appeal or application, together with a notice
of the hearing. The Planning Board shall submit to the Board of Appeals
an advisory opinion on the appeal or application at any time prior
to the rendering of a decision by the Board of Appeals.
(5) Referral to Rensselaer County Bureau of Budget, Research and Planning.
(a)
In accordance with §§ 239-l and 239-m of Article
12B of the General Municipal Law, the Board of Appeals shall refer
any appeal for a variance or application for interpretation involving
the provisions of this chapter to the Rensselaer County Bureau of
Budget, Research and Planning when the action affects property located
within 500 feet of:
[2]
The boundary of any existing or proposed county or state park
or other recreation area.
[3]
The right-of-way of any existing or proposed county or state
parkway, thruway, expressway, road or highway.
[4]
The existing or proposed right-of-way of any stream or drainage
channel owned by the county, or for which the county has established
channel lines.
[5]
The existing or proposed boundary of any county- or state-owned
land on which a public building or institution is situated.
(b)
Such referral shall be made 30 days prior to the date of the
public hearing. If the Rensselaer County Planning Advisory Board recommends
modification or disapproval, the Board of Appeals may act contrary
to the recommendation only by a vote of a majority plus one of the
entire Board and by adopting a resolution fully setting forth reasons
for such contrary action.
(c)
In addition, the Board of Appeals shall send notification of
any pending variance or interpretation action within 500 feet of a
municipal boundary to the Clerk of that municipality not later than
10 days prior to the date of the public hearing.
(6) Relief from decisions of the Board of Appeals. An appellant aggrieved
by any decision of the Board of Appeals may apply to the New York
State Supreme Court for relief under Article 78 of the Civil Practice
Law and Rules of New York State, pursuant to § 7-712 of
the Village Law.