A.
The purpose and intent of this article is to provide a body, the
Zoning Board of Appeals (ZBA), to which may be referred appeals from
the enforcement of this chapter based upon alleged uncertainty in
the text, error in administrative decisions or unique hardship.
B.
This Zoning Board of Appeals is not established as a means of altering
this chapter, the intent of this chapter, or the purpose of this chapter.
It shall not permit any use in any zone which would be in conflict
with such zone under the terms of this chapter or which, in effect,
would constitute a change in zoning.
C.
The Zoning Board of Appeals shall have all the powers and duties
prescribed by law and this chapter in connection with appeals to review
any order, requirement, decision, interpretation, or determination
made by an administrative official charged with the enforcement of
this chapter, generally the Building Inspector. An appeal may be taken
by any person aggrieved or by any officer, department, board, or committee
of the City.
A.
The Zoning Board of Appeals, as constituted at the time of the effective
date of this chapter, shall continue in existence in accordance with
the provisions of the General City Law applicable thereto.
B.
Appointment and organization.
(1)
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.
(2)
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.
C.
Alternate members.
(1)
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.
(2)
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.
(3)
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.
A.
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.
B.
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.
C.
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:
A.
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.
B.
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."
C.
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.
A.
Use variances.
(1)
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.
(2)
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:
(a)
The applicant cannot realize a reasonable return, provided that
lack of return is substantial as demonstrated by competent financial
evidence;
(b)
The alleged hardship relating to the property in question is
unique and does not apply to a substantial portion of the neighborhood;
(c)
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.
(3)
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.
B.
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.
(1)
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.
(2)
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:
(a)
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)
The benefit sought by the applicant can be achieved by some
method feasible for the applicant to pursue, other than an area variance;
(c)
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.
C.
Ineligible hardship. The following types of cases shall not be construed
as eligible for consideration as hardship cases within the meaning
of this chapter:
(1)
The applicant, with or without knowledge of the provisions of
this chapter, has acquired the site subsequent to the effective date
of this chapter.
(2)
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.)
(3)
The applicant would realize financial advantage from a change
to the site, the structure or the use.
D.
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.
E.
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.
F.
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.
G.
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.
A.
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.
B.
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:
(1)
A plot plan drawn to scale with accurate dimensions, showing
the location of all existing and proposed structures on the lot.
(2)
A site context map showing the zoning of the parcel in question
as well as the zoning of all adjacent properties.
(3)
Complete copies of the required application materials in the
number and format prescribed by the Building Inspector.
C.
Referrals.
(1)
Orange County Department of Planning.
(a)
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.
(b)
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.
(c)
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.
(2)
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.
(3)
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.
D.
Hearing and public notice.
(1)
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.
(2)
At least 10 days prior to such hearing, the Secretary of the
City Planning Board shall:
(a)
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.
(b)
The Secretary of the Planning Board arranges for the applicant
to obtain the appropriate mailing list from the Assessor's Office.
(c)
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.
(3)
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.
E.
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.
(1)
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.
(2)
Every decision of the Zoning Board of Appeals shall be approved
by the affirmative vote of a majority of all the members by resolution
which contains a full record of the findings of the Zoning Board of
Appeals in the case. If the Zoning Board of Appeals acts contrary
to the recommendations of the City Planning Board or the County Planning
Board, it shall give written reasons for such action.
F.
Filing of decision or action. Every order, requirement, decision,
interpretation, or determination of the Zoning Board of Appeals shall
be filed in the office of the City Clerk within five business days
after the day such decision is rendered and shall be a public record.
A copy thereof shall be mailed to the applicant within the same five-day
period.
G.
Court review of Board decisions. Any person or persons jointly or
severally aggrieved by any decision of the Zoning Board of Appeals
may apply to the Supreme Court for review by a proceeding under Article
78 of the Civil Practice Law.
H.
Expiration of appeal decision. Unless otherwise specified by the
Zoning Board of Appeals, a decision on any appeal shall expire if
the appellant fails to obtain any necessary building permit within
12 months of the date of such decision.
I.
Stay of proceedings. An appeal shall stay all proceedings in furtherance
of the action appealed from, unless the Building Inspector certifies
to the Zoning Board of Appeals, after the notice of appeal shall have
been filed, that such a stay of proceedings would cause in the Building
Inspector's opinion, by reason of facts stated in the certificate,
imminent peril to life or property. In such a case, proceedings shall
not be stayed except by a restraining order, which may be granted
by the Zoning Board of Appeals or by a court of record on application,
on notice to the Building Inspector for due cause shown.
J.
Rehearing. A motion for the Zoning Board of Appeals to hold a rehearing
to review any order, decision or determination of the Board not previously
reheard may be made by any member of the Board within 62 days of the
original decision. A unanimous vote of all members of the Board then
present is required for such rehearing to occur. Such rehearing is
subject to the same notice provisions as an original hearing. Upon
such rehearing, the Board may reverse, modify, or annul its original
order, decision or determination upon the unanimous vote of all members
then present, provided that the Board finds that the rights vested
in persons acting in good faith in reliance upon the reheard order,
decision or determination will not be prejudiced thereby.
