A.
A Zoning Board of Appeals is created and maintained in accordance
with § 267 of Article 16 of the Town Law. Said Board shall
consist of five members appointed by the Town Board for staggered
terms of five years. The Town Board shall annually designate the Chairman
of the Zoning Board of Appeals, while the Zoning 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. No person who is a member of the Town Board or Planning Board
shall be eligible for membership on such Zoning Board of Appeals.
B.
Pursuant to Town Law §§ 267 and 271, all Zoning Board
of Appeals members, as well as alternate members of those boards,
must complete a minimum of four hours of training each year. Further,
no Zoning Board of Appeals member shall be eligible for reappointment
to such board if they have not completed the training required by
law.
The Zoning Board of Appeals shall have all the powers and duties
prescribed by law and by this chapter which are more particularly
specified as follows:
A.
Interpretation. The Zoning Board of Appeals may reverse or affirm,
wholly or partially, or may modify the order, requirement, decision,
interpretation or decision appealed from and shall make such order,
requirement, decision, interpretation or determination as in its opinion
ought to have been made by the administrative official, i.e., the
Code Enforcement Officer, charged with the administration and enforcement
of this chapter and to that end shall have all the power of the administrative
official from whose order, requirement or decision the appeal is taken.
B.
Use variances.
(1)
The Zoning Board of Appeals, upon appeal from the decision or determination
of the Code Enforcement Officer, shall have the power to grant use
variances, authorizing a use of 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 the Zoning Board of Appeals
without a showing by the applicant that the applicable regulations
and restrictions imposed by this chapter have caused unnecessary hardship.
In order to prove such unnecessary hardship, the applicant shall demonstrate
to the Zoning Board of Appeals compliance with each of the following
criteria:
(a)
The applicant cannot realize a reasonable return, provided that
lack of return is substantial as demonstrated by competent financial
evidence.
(b)
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.
(c)
That the requested use variance, if granted, will not alter
the essential character of the district or neighborhood.
(d)
That the alleged hardship has not been self-created.
(3)
The Zoning Board of Appeals, in the granting of a use variance, shall
grant the minimum variance that is deemed 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.
(1)
The Zoning Board of Appeals, upon appeal from the decision or determination
of the Code Enforcement Officer, shall have the power to grant area
variances from the area or dimensional requirements of this chapter.
(2)
In making its determination, the Zoning Board of Appeals shall take
into consideration the benefit to the applicant if the area 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 Zoning Board of Appeals shall also consider
each of the following factors:
(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 other method feasible for the applicant to pursue, other than
an area variance.
(c)
Whether the requested area variance is substantial.
(d)
Whether the proposed area variance will have an adverse effect
or impact on the physical or environmental conditions in the neighborhood
or zoning district.
(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.
(3)
The Zoning Board of Appeals, in the granting of an area variance,
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.
In its quasi-judicial role, 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 shall be held at the call of the Chairman or at such other
times as the Zoning Board of Appeals may determine. The Board shall
keep accurate minutes of its proceedings documenting fully all findings
and showing the vote of each member upon each question. All meetings
of the Zoning Board of Appeals shall be open to the public to the
extent provided in Article 7 of the Public Officers Law.
B.
Voting. Every motion or resolution of the Board of Appeals shall
require for its adoption the affirmative vote of a majority of all
the members of the Board of Appeals as fully constituted regardless
of vacancies or absences. An affirmative vote of a majority plus one,
i.e., of at least four members, shall also be required if the action
taken by the Zoning Board of Appeals is contrary to an advisory recommendation
received from the Columbia County Planning Board under the provisions
of § 239 of the General Municipal Law.
All appeals and applications made to the Zoning Board of Appeals
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 in accordance with the fee schedule annually reviewed and established
by the Town Board. Every appeal or application 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. Each application shall
also be accompanied by a short or full environmental assessment form
as required by the Zoning Board of Appeals pursuant to SEQRA, Article
7 of the Environmental Conservation Law, and Title 6, Part 617, of
the New York Codes, Rules and Regulations and a agricultural data
statement as per § 305-a of Article 25-AA of the Agriculture
and Markets Law.
The Zoning Board of Appeals shall fix a reasonable time and
place for a public hearing on any such appeal or application, of which
hearing date the appellant shall be given notice and at which hearing
he shall appear in person or be represented by an attorney or other
agent. Any other interested party may appear at such public hearing
in person or be represented by an attorney or other agent or submit
comments, in writing, for receipt prior to the public hearing. The
Board shall additionally provide notice as follows:
A.
By publishing at least five calendar days prior to the date thereof
a legal notice in the official newspaper of the Town.
B.
By requiring that the Secretary of the Zoning Board of Appeals provide
notice at least five calendar days prior to the date thereof of the
substance of every appeal for a variance together with a notice of
the hearing thereon by mailing such to the owners of all property
abutting or directly opposite that of the applicant and to all other
owners within 300 feet or such additional distances, as the Zoning
Board of Appeals may deem advisable, of the intended use. Compliance
with this notification procedure shall be certified to by the Secretary,
and the Town shall charge the applicant either a flat rate or a stated
amount per notice for satisfying this requirement.
(1)
The names and addresses of owners notified shall be taken as such
appear on the last completed tax roll for the Town.
(2)
Provided that there has been substantial compliance with this provision,
the failure to give notice in exact conformance herewith shall not
be deemed to invalidate an action taken by the Zoning Board of Appeals
in either granting or denying an appeal for a variance from a specific
provision of this chapter.
C.
By requiring the Secretary of the Zoning Board of Appeals to transmit
to the Secretary 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 Zoning Board of Appeals
shall request that the Planning Board submit to the Zoning 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 appeal for variance.
D.
By requiring that if the land involved in the appeal lies within
500 feet of the boundary of any other municipality, the Secretary
of the Zoning 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.
A.
A full statement of any appeal that meets the specific referral requirements
of §§ 239-1 and 239-m of the General Municipal Law
shall be referred prior to the public hearing to the Columbia County
Planning Board for its review. No action shall be taken by the Zoning
Board of Appeals on such appeal until an advisory recommendation has
been received from said County Planning Board or 30 calendar days
have elapsed since the Planning Board received such full statement.
B.
Such actions shall include those which affect property located within
500 feet of the following:
(1)
Municipal boundary.
(2)
Boundary of any existing or proposed county or state park or other
recreation area.
(3)
Right-of-way of any existing or proposed county or state road or
highway.
(4)
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)
Existing or proposed boundary or any county- or state-owned land
on which a public building or institution is situated.
Every decision of the Zoning Board of Appeals on an appeal or
request shall be made within 62 calendar days of the close of the
hearing by the Board, shall be recorded in accordance with standard
forms adopted by the Board and shall fully set forth the circumstances
of the case and contain a full record of the findings on which the
decision is based, including record of compliance with the applicable
provisions of SEQRA, Article 8 of the Environmental Conservation Law
and Title 6, Part 617, of the New York Codes, Rules and Regulations.
The time within which the Board of Appeals must render its decision
may be extended by mutual consent of the applicant and Board. 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 and shall be a public record. The Board shall also notify
the Code Enforcement Officer, the Secretary of the Planning Board
and any affected municipality given notice of a hearing of its decision
in each case. If applicable, a report on the action taken shall also
be filed within seven calendar days thereof with the Columbia County
Planning Board.
The Zoning Board of Appeals shall, in the granting of both use
and area variances, 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 such 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.
Unless construction or use is commenced within one calendar
year from the date of the granting of a variance, such variance shall
become null and void without further hearing or action by the Zoning
Board of Appeals.
All provisions of this article pertaining to the Zoning Board
of Appeals shall be strictly construed. The Zoning 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.
Unless the Code Enforcement Officer finds there to be an imminent
threat to either life or property, an appeal stays all proceedings
by either the Town or appellant in furtherance of the action which
is the subject of the appeal.
Any person or persons jointly or severally aggrieved by any
decision of the Zoning 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.
