Article XIII Zoning Board of Appeals

The ZBA shall consist of seven members. The term of office of each member shall be seven years, and his term shall continue until a successor shall be appointed. If a vacancy shall occur other than by expiration of the term, it shall be filled by appointment of the City Manager for the unexpired term.

Chairperson. One member shall be designated by the City Manager to act as Chairperson, or, on the failure to do so, the ZBA shall elect a Chairman from its own members. The City Manager shall appoint a Secretary, and the Zoning Board of Appeals shall prescribe rules for the conduct of its affairs in accordance with the provisions included in this chapter and all applicable state regulations.

Alternate members.

Two alternate members of the Zoning Board of Appeals shall be appointed by the City Manager for a term of two years, commencing on the date of appointment. These members shall serve when members are absent or unable to participate on an application before the Zoning Board of Appeals.

The Chairman of the Zoning Board of Appeals may designate one of the appointed alternate members as an alternate substitute for a member when such member is unable to participate on an application or matter before the Board. When so designated, the alternate member shall possess all the powers and responsibilities of such member of the Board. Such designation shall be entered into the minutes of every Zoning Board of Appeals meeting at which the substitution is made.

All provisions of state law and local law, codes, rules and regulations relating to Zoning Board of Appeals member eligibility, vacancy in office, removal, compatibility of office and service on other boards, as well as any provisions of any local law or local ordinance relating to training, continuing education, compensation and attendance, performance of duties, qualifications and others, shall also apply to alternate members.

§ 300-113 General powers and duties.

The Zoning Board of Appeals shall have all the powers and duties prescribed by law and this chapter, provided that none of the following provisions shall be deemed to limit any power of the Board that is conferred by law.

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 and shall make such order, requirement, decision, interpretation, or determination that in the opinion of the ZBA ought to have been made in the matter by the City of Newburgh Building Inspector or other administrative official charged with the enforcement of this chapter.

Power to interpret chapter. On appeal from an order, requirement, decision or determination made by an administrative official or on request by any official, board or agency of the City, the Zoning Board of Appeals shall have the power to decide any of the following matters:

Text: determination of the meaning of any portion of the text of this chapter.

Map: determination of the exact location of any zoning boundaries shown on the Zoning Map.

§ 300-115 Use variances; area variances.

Variances: granting of use or area variances, as defined herein.

§ 300-114 Appeals for variance.

The Zoning Board of Appeals shall have the power, upon appeal of a determination by the Building Inspector, and after public notice and hearing, to vary or modify the application of any provisions of this chapter relating to 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 is done.

Variation from the strict enforcement of the terms of this chapter may only occur where the literal enforcement of the requirements of this chapter would involve practical difficulties or would cause undue hardships that would deprive the owner of the reasonable use of the land or buildings involved and would not carry out the spirit and purpose of this chapter. Such a request shall be termed a "variance."

An applicant for a variance must demonstrate that a substantial and unique hardship would be created by the strict interpretation of the provisions of this chapter and this hardship can be corrected by a variation in the regulations without causing undue hardship to others or to the City as a whole. The basis for this action is hardship on the individual rather than benefit to the public.

Use variances.

The ZBA, on appeal from a decision or determination of the Building Inspector, shall have the power to grant use variances, authorizing the use of the land which otherwise would not be allowed by this chapter.

No such use variance shall be granted by the Zoning Board of Appeals without a showing by the applicant that the applicable zoning regulations and restrictions have caused unnecessary hardship. In order to prove such unnecessary hardship, the applicant shall demonstrate to the Zoning Board of Appeals that for each and every permitted use under the zoning regulations for the particular district where the property is located:

The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;

The alleged hardship relating to the property in question is unique and does not apply to a substantial portion of the neighborhood;

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.

Minimum variance. 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.

(4)

If the use variance is granted for a nonresidential use, the applicant shall obtain site plan approval from the City Planning Board prior to commencing the use or obtaining a building permit.

Area variances. The ZBA shall have the power, upon an appeal from a decision or determination of the Building Inspector, to grant area variances from the area or dimensional requirements specified in this chapter.

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.

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 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;

The benefit sought by the applicant can be achieved by some method feasible for the applicant to pursue, other than an area variance;

The requested area variance is substantial;

(d)

The proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and

(e)

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.

Ineligible hardship. The following types of cases shall not be construed as eligible for consideration as hardship cases within the meaning of this chapter:

The applicant, with or without knowledge of the provisions of this chapter, has acquired the site subsequent to the effective date of this chapter.

The applicant has caused a self-imposed hardship by changing his circumstances after the effective date of this chapter. (Example: The applicant in selling a portion of a larger site has either created a new lot which is deficient in total area or has rendered the existing larger segment on which the structure is located insufficient in yard space.)

The applicant would realize financial advantage from a change to the site, the structure or the use.

Transference. Unless otherwise specified at the time the variance is granted, the variance pertains to the subject property and not to the individual who applied. Consequently, the variance is transferable to any future owner of the subject property but cannot be transferred by the applicant to a different site should said applicant move to another location.

Expiration. Unless otherwise specified at the time the variance is granted, it pertains to the subject property for an indefinite time. However, in the case where work has not been commenced and diligently prosecuted within one year after the date of granting of a variance, then without further action such variances shall become null and void.

Imposition of conditions and safeguards. 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. 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.

Referral to City Planning Board. Where the Zoning Board of Appeals finds the zoning classification of a particular property to be conducive to the deprivation of all reasonable use of the land or building by the owner thereof and where such Board deems the same condition to apply generally to other land or buildings in the same neighborhood or zone, said Board shall deny a variance on the grounds that the conditions and circumstances are not unique and shall call this condition to the attention of the City Planning Board accompanied by a recommendation that this chapter be amended.

§ 300-116 Procedures.

Contents of the application. Appeals shall be submitted by filing a written notice of appeal to the Building Inspector and Zoning Board of Appeals within 90 days after the filing in the City Clerk's office of the order, requirement, decision, interpretation, or determination of the administrative official charged with the enforcement of such ordinance or local law by filing with such administrative official and with the Zoning Board of Appeals a notice of appeal, specifying the grounds thereof and the relief sought.

Applications for appeals shall be filed on forms required by the ZBA. Such application shall refer to the specific relevant provisions of this chapter and shall specify the grounds for the variance requested, the interpretation claimed, or for the reversal of an order, requirement, decision, or determination by the Building Inspector. The Building Inspector shall transmit all the papers constituting the record of the appeal to the Zoning Board of Appeals. In addition to these required materials, the application shall include as necessary:

A plot plan drawn to scale with accurate dimensions, showing the location of all existing and proposed structures on the lot.

A site context map showing the zoning of the parcel in question as well as the zoning of all adjacent properties.

Complete copies of the required application materials in the number and format prescribed by the Building Inspector.

(4)

Fees. All appeals or requests for a variance made to the Zoning Board of Appeals shall be accompanied by the fee as provided for in Chapter 163 of the Code of Ordinances of the City of Newburgh.

Referrals.

Orange County Department of Planning.

Requests for variances that require referral to the Orange County Department of Planning shall be so referred pursuant to the General Municipal Law, Article 12-B, §§ 239-l and 239-m, as amended. The referral shall be accompanied by a full statement of such proposed action, and any materials and or forms required by the Orange County Department of Planning.

No action shall be taken on variances referred to the Orange County Department of Planning until either the Orange County Department of Planning has issued its recommendation or a minimum of 30 days and a maximum of up to two days prior to a regularly scheduled meeting where a board will be taking action have elapsed from the date of its receipt of the full statement of the proposed variance, unless the Orange County Department of Planning and the City of Newburgh Zoning Board of Appeals agree to an extension of the County's time period for review.

County disapproval. A majority-plus-one vote shall be required to approve any variance, which receives a recommendation of disapproval from the Orange County Department of Planning because of the referral process specified above, along with a resolution setting forth the reasons for such contrary action.

Planning Board advisory opinion. The Zoning Board of Appeals is not required to but may, in its discretion, refer any requests for appeals or applications for variances to the City Planning Board for review and recommendations. If no report is received from the City Planning Board within 30 days, the Zoning Board of Appeals may render its decision without said report.

Conservation Advisory Council. Whenever a request for appeal or application for variance involves the City's waterfront area, the Zoning Board of Appeals shall determine the consistency of the proposed action as set forth in Chapter 159, Article III, of the Code of the City of Newburgh known as the "City of Newburgh Waterfront Consistency Review Law." The Zoning Board of Appeals shall refer a copy of a completed Coastal Assessment Form (CAF) and other appropriate application materials to the Conservation Advisory Council within 10 days of its submission and, prior to making its determination, shall consider the recommendation of the CAC with reference to the consistency of the proposed action. In the event that the CAC recommendation is not forthcoming within 30 days following referral of the CAF, the Zoning Board of Appeals shall make its determination without the benefit of the CAC recommendation.

Hearing and public notice.

The Zoning Board of Appeals shall set a reasonable time after receipt of a complete application for the hearing of appeals, and the applicant shall be notified of the date.

At least 10 days prior to such hearing, the Secretary of the City Planning Board shall:

Mail, by regular mail, at the applicant's expense, a notice in English and Spanish announcing the meeting to all property owners within 500 feet of the exterior boundaries of the property affected by the application.

The Secretary of the Planning Board arranges for the applicant to obtain the appropriate mailing list from the Assessor's Office.

The applicant prepares the envelopes, stamps them and returns the prepared mailing to the Secretary of the Board with a copy of the list of those to receive the mailing.

At least 10 days prior to the date of the hearing of appeals, the Secretary of the ZBA, at the expense of the applicant, to be paid in advance, shall give public notice by causing the publication of a notice of such hearing and the substance of the appeal in the official newspaper of the City of Newburgh.

(4)

Prior to the public hearing, the applicant shall submit to the ZBA affidavits of the Secretary of the Board swearing that the required mailings and publication have been performed, which documents shall become part of the application.

(5)

At the hearing, any party may appear in person or by agent or by attorney.

(6)

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.

Action. The Zoning Board of Appeals may, in conformity with the provisions of this chapter, 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.

Any such action shall be decided within 62 days after the close of the hearing. The time within which the Zoning Board of Appeals must render its decision may be extended by mutual consent of the applicant and the Board.