[Added 6-10-1993 by L.L. No. 2-1993]
A. 
A Zoning Board of Appeals shall be maintained in accordance with § 267, Article 16, of the Town Law. Said Board shall consist of five members appointed by the Town Board for staggered terms of five years, so that one term terminates each year.
B. 
The Town Board shall annually designate the Chairman of the Zoning Board of Appeals, while the Board 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 Board of Appeals.
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 or Zoning 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 Zoning 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 for each and every permitted use under the zoning regulations for the particular district where the property is located 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 Board of Appeals compliance with each of the following criteria:[1]
(a) 
That under the applicable regulations and restrictions imposed by this chapter, 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.
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
(3) 
The 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 Zoning 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 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 granting of 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 Board of Appeals but shall not necessarily preclude the granting of the area variance.
(3) 
The 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.
D. 
Special use permit approval.
[Added 4-14-1994 by L.L. No. 1-1994]
(1) 
The Zoning Board of Appeals shall have the power to issue use permits in accordance with Article VI of this chapter.
(2) 
In acting on any special use permit application, the Board of Appeals shall apply the standards and follow the procedure set forth in Article VI of this chapter. To the extent that the procedures prescribed for special use permit applications in Article VI are different from, or inconsistent with, the procedures of the Board of Appeals set forth in § 180-101 of this article, the procedures prescribed in Article VI shall apply.
[Amended 9-11-1980 by L.L. No. 3-1980; 4-14-1994 by L.L. No. 1-1994]
In exercising its powers as set forth in § 180-100A, B and C of this article, the Zoning Board of Appeals shall act in strict accordance with the procedures specified by §§ 267-a and 267-b 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 Zoning Board of Appeals may determine. A quorum shall consist of a majority of the members, but in order to reverse a decision of the Code Enforcement Officer or Zoning Enforcement Officer or to authorize a variance, an affirmative vote of at least three members shall be required. A favorable 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 Dutchess County Department of Planning under the provisions of § 239 of the General Municipal Law. 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 and deliberations of the Board of Appeals shall be open to the public to the extent provided in Article 7 of the Public Officers Law.
B. 
Application and fee. All appeals and applications made to the Board shall be in writing, submitted in triplicate on forms prescribed by the Board, within 60 calendar days of the filing of any 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 ground 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 8 of the Environmental Conservation Law, and 6 NYCRR 617.
C. 
Public notice and hearing. The Board shall fix a reasonable time and place for a public hearing on such appeal or application, of which hearing date the appellant shall be given notice and at which hearing he shall either appear in person or be represented by an agent. Any other interested party may appear at such public hearing in person, by attorney or other agent, or submit comments in writing for receipt prior to the public hearing.
(1) 
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 or other designated Town employee 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 certified mail, return receipt requested, to the owners of all property abutting or directly opposite the land involved in the appeal or otherwise lying within 300 feet of the intended use. Compliance with this notification procedure shall be certified to by the Secretary or other designated Town employee. The Town shall charge the applicant either a flat rate or a stated amount per notice for satisfying this requirement.
(2) 
The names and addresses of owners notified shall be taken as such appear on the last completed tax roll of the Town. 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 Board of Appeals in either granting or denying an appeal for a variance from a specific provision of this chapter.
D. 
Required referrals.
(1) 
A full statement of any appeal that meets the specific referral requirements of §§ 239-1 and 239-m of the General Municipal Law shall also be referred prior to the public hearing to the Dutchess County Department of Planning 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 Department or 30 calendar days have elapsed since the Planning Department received such full statement.
(2) 
Such actions shall include those which affect property located within 500 feet of the following:
(a) 
A municipal boundary;
(b) 
The boundary of any existing or proposed county or state park or other recreation area;
(c) 
A right-of-way of any existing or proposed county or state road or highway;
(d) 
An 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; or
(e) 
An existing or proposed boundary or any county- or state-owned land on which a public building or institution is situated.
(3) 
The Zoning Board of Appeals shall additionally refer to the Town Planning Board all applications for use variances and may refer to the Planning Board any other matters it deems pertinent for review and recommendation. The Board of Appeals shall defer any decision on the application for a period of 30 days to permit a report thereon to be issued by the Planning Board. Upon failure to submit such report to the Board of Appeals within 30 calendar days, the Planning Board shall be deemed to have waived its opportunity to comment on the matter being referred.
E. 
Decisions. Every decision of the Zoning Board of Appeals on an appeal or other application 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 6 NYCRR 617. Every decision shall be by resolution of the Board, with such decision being filed in the office of the Town Clerk within five business days thereof, with a copy mailed to the applicant. The Board shall also notify the Zoning Enforcement Officer, the Code Enforcement Officer, the Secretary 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 thereof with the Dutchess County Department of Planning.
F. 
Attachment of conditions. The Zoning Board of Appeals shall, in the granting of both use 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.
G. 
Expiration of approval. Unless construction or use is diligently commenced within one calendar year from the date of the granting of a variance, such variance shall become null and void without further hearing and subsequent action by the Zoning Board of Appeals.
H. 
Strict construction. All provisions of this chapter pertaining to the Zoning Board of Appeals shall be strictly construed. The Board, 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 article have been substantially observed, no applicant or appellant shall be deprived of the right of application or appeal.
Unless the Zoning Enforcement Officer or the Code Enforcement Officer, the latter as applicable in case of compliance with the provisions of the New York State Uniform Fire Prevention and Building Code, 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 calendar days after the filing of the Board's decision in the office of the Town Clerk.