Pursuant to the provisions of the New York State Town Law, a Zoning Board of Appeals (ZBA) is hereby established in the Town of Delaware. The ZBA shall perform all the duties and have all the powers prescribed by the laws of the State of New York and as herein provided.
A. 
Membership. The Zoning Board of Appeals shall consist of five members to be appointed by the Town Board. The terms of the initial appointees shall be for one, two, three, four and five years from and after the date of appointment. Their successors, including such additional members as may be appointed by the Town Board, shall be appointed for the term of five years after the expiration of the terms of their predecessors in office.
B. 
Vacancies. Appointments to fill vacancies shall be for the unexpired term of the member or members whose term or terms become vacant. Such appointment to fill vacancies shall be made in the same manner as the original appointment. The Zoning Board of Appeals may continue to legally operate while vacancies are waiting to be filled, provided there are enough members to constitute a quorum.
C. 
Quorum. Three members of the Zoning Board of Appeals shall, regardless of the number of members at a given point in time, be a quorum for purposes of conducting any business. The concurring vote of three of the members of the ZBA shall be necessary to reverse any order, requirement, decision or determination of the enforcement officer or to decide in favor of the appellant any matter upon which it is required to pass under the terms of this chapter or to effect any variation of this chapter.
The Zoning Board of Appeals (ZBA) shall have the powers and duties authorized by the New York State Town Law and shall have the following specific powers and duties:
A. 
Orders, requirements, decisions, interpretations and determinations. The ZBA may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, interpretation or determination appealed from, and shall make such order, requirement, decision, interpretation or determination as in its opinion ought to have been made in the matter by the administrative official or body charged with the enforcement of this chapter, and to that end shall have all the powers of the administrative official or body from whose order, requirement, decision, interpretation or determination the appeal is taken.
B. 
Area variances. The ZBA shall have the power, upon an appeal from a decision or determination of the administrative official or body charged with the enforcement of this chapter, to grant area variances as defined herein.
C. 
Use variances. The ZBA shall have the power, upon an appeal from a decision or determination of the administrative official or body charged with the enforcement of this chapter, to grant use variances as defined herein.
D. 
Interpretations. The ZBA shall, upon request from or appeal of a decision by the Building Inspector or any administrative body of the Town of Delaware, including the Town Board, decide any question involving the interpretation of any provision of this chapter, including determination of the exact location of any district boundary if there is uncertainty with respect thereto.
The Zoning Board of Appeals (ZBA) shall act in strict accordance with the procedure specified by the New York State Town Law and by this chapter. All appeal, variance and interpretation applications made to the ZBA shall be in writing on forms prescribed by the ZBA or provided for herein. Every application shall refer to the specific provision of the law involved and shall exactly set forth the interpretation that is claimed, the use which is involved or sought, or the details of the variance that is applied for, and the grounds on which it is claimed that the variance should be granted, as the case may be. Every decision of the ZBA shall be by resolution, each of which shall contain a full record of the findings of the ZBA in the particular case.
A. 
Any property owner, tenant or representative thereof may, in appealing an administrative decision of the Town of Delaware with respect to this chapter, request a variance from its literal terms. Application for a variance may be made concurrently with application for a building permit or special use/site plan and shall be delivered to the Building Inspector or Planning Board, respectively, who shall then, in acting upon the application, refer the matter to the Zoning Board of Appeals (ZBA) for a decision on the variance request. This shall not, however, preclude an applicant whose permit request has been denied from subsequently requesting a variance in conjunction with an appeal of such action if the appeal has been timely filed.
B. 
Two types of variances may be granted by the ZBA – area variances and use variances. Area variances involve relief from dimensional or other requirements for existing uses or uses allowed within the district under the terms of this chapter. Use variances involve a use of land not allowed in a district under the terms of this chapter. Each of the following findings of fact shall be made by the ZBA prior to granting such variances.
(1) 
Area variance.
(a) 
Definition. "Area variance" shall mean the authorization by the ZBA for the use of land in a manner which is not allowed by the dimensional or topographical requirements of this chapter.
(b) 
Determination. The ZBA, on appeal from an administrative decision or determination of the Town of Delaware with respect to this chapter, shall have the power to grant variances from the area or dimensional requirements of this chapter. In making its determination to grant area variances, the ZBA 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 ZBA 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 ZBA but shall not necessarily preclude the granting of the area variance.
(c) 
Minimum variance. The ZBA, 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.
(2) 
Use variance.
(a) 
Definition. "Use variance" shall mean the authorization by the ZBA for the use of land in a manner or for a purpose which is otherwise not allowed or is prohibited by the applicable regulations of this chapter.
(b) 
Determination. The ZBA, on appeal from an administrative decision or determination of the Town of Delaware with respect to this chapter, shall have the power to grant use variances, authorizing a use of the land which otherwise would not be allowed or would be prohibited by the terms of this chapter. No such use variance shall be granted by the ZBA without a showing by the applicant that the applicable regulations and restrictions of this chapter have caused unnecessary hardship. In order to prove such unnecessary hardship, the applicant shall demonstrate to the ZBA that:
[1] 
Under the applicable regulations of this chapter, the applicant is deprived of all economic use or benefit from the property in question, which deprivation must be established by competent financial evidence.
[2] 
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] 
The requested use variance, if granted, will not alter the essential character of the neighborhood.
[4] 
The alleged hardship has not been self-created.
(c) 
Minimum variance. The ZBA, in the granting of use variances, shall grant the minimum variance that it shall deem 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.
(3) 
Imposition of conditions. The ZBA shall, in the granting of both use variances 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.
A. 
Interpretations. The Town Board, Building Inspector or Planning Board of the Town of Delaware may request the Zoning Board of Appeals (ZBA) to decide any question involving the interpretation of any provision of this chapter and shall refer such other matters to the ZBA as it is required to decide by the provisions of this chapter. The ZBA's rules and regulations shall govern these matters. All matters to be referred to the ZBA in such circumstances shall be in writing to the ZBA's Secretary and shall be acted on within 90 days of the Secretary's receipt of the same.
B. 
Appeals from administrative acts. Any property owner, tenant, representative thereof or other person aggrieved by an administrative act of the Town of Delaware with respect to this chapter, who believes such decision to be in error, may appeal to the ZBA.
(1) 
Administrative act. An administrative act shall include any order, requirements, decision, interpretation or determination made by the Building Inspector, the Town Board or the Planning Board. The ZBA may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, interpretation or determination as in its opinion ought to be made in the matter, and to that end shall have all the powers of the official or body from whom the appeal is taken.
(2) 
Time for appeal. An appeal must be made to the ZBA within 60 days after the filing of any order, requirements, decision, interpretation or determination made by the Building Inspector, the Town Board or the Planning Board. The applicant must file a signed notice of appeal with the administrative official or body from whom the appeal is taken and with the Secretary of the Board of Appeals. Such notice shall be made on the forms provided for that purpose.
(3) 
Application to ZBA. The administrative official from whom the appeal is taken shall be responsible, at the direction of the ZBA, for providing any applicant with the proper forms and for instructing the parties concerned on the proper manner for completing and filing said forms. All information required thereon shall be complete before an appeal is considered filed. Six copies of the proper appeal form shall be filed with the ZBA.
A. 
Timing and public notice. The Zoning Board of Appeals (ZBA) shall schedule a hearing on all appeals or applications within 62 days of the filing of the appeal or application. Public notice of the hearing shall be given at least five days prior to the date thereof by publication in a newspaper of general circulation in the Town. The cost of sending or publishing any notices relating to any appeal or application shall be borne by the appealing party and shall be paid to the ZBA prior to the hearing.
B. 
General conduct of hearing. Any party may appear in person or by agent or by attorney. Irrelevant or unduly repetitious evidence or cross-examination may be excluded. Except as otherwise provided by statute, the burden of proof shall be on the party who initiated the proceedings. No decision, determination or order shall be made except upon consideration of the record as a whole or such portion thereof as may be cited by any party to the proceeding and as supported by and in accordance with substantial evidence.
C. 
Rules of evidence. Unless otherwise provided by any statute, the ZBA need not observe the rules of evidence observed by courts but shall give effect to rules of privilege recognized by law. Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, the ZBA may, for the purpose of expediting a hearing and when the interests of parties will not be substantially prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form.
D. 
Records and evidence. All evidence, including records and documents in the possession of the ZBA or parties to the hearing, of which the former desires to avail itself, shall be made a part of the record, and all such documentary evidence may be received in the form of copies or excerpts or by incorporation by reference. In case of incorporation by reference, the materials so incorporated shall be available for examination by the parties before being received in evidence.
E. 
Cross-examination. A party shall have the right of cross-examination.
F. 
Judicial notice. Official notice may be taken of all facts of which judicial notice could be taken and of other facts within the specialized knowledge of the ZBA. When official notice is taken of a material fact not appearing in the evidence in the record and of which judicial notice could be taken, every party shall be given notice thereof and shall, on a timely request, be afforded an opportunity prior to decision to dispute the fact or its materiality.
Upon a motion initiated by any member and adopted by unanimous vote of the members present, but not less than a majority of all the members, the Zoning Board of Appeals (ZBA) may review at a rehearing any order, decision or determination of the ZBA not previously reviewed. Notice shall be given as upon an original hearing. Upon such hearing — and provided that it shall appear that no vested rights due to reliance on the original order, decision or determination will be prejudiced thereby — the ZBA may, upon concurrence of all the members present, reverse, modify or annul its original order, decision or determination. Requests for rehearing, however, shall be made within 30 days of the original order, decision or determination.
At least five days before any hearing on any appeal or application, the Zoning Board of Appeals (ZBA) shall mail notices thereof to the parties, to the regional state park commission having jurisdiction over any state park or parkway within 500 feet of the property affected by the appeal or application, and to the Sullivan County Department of Planning and Economic Development, as required by § 239-m of the New York State General Municipal Law, which notice shall be accompanied by a full statement of the matter under consideration as defined by the said § 239-m.
A. 
County action.
(1) 
Disapproval or modification recommendation. If within 30 days after receipt of a full statement of such referred matter the County Planning Department recommends disapproval or modification of the proposal, the ZBA shall not act contrary to such recommendation except by a vote of a majority plus one of all the members thereof and after adoption of a resolution fully setting forth the reasons for such contrary action. The Chairperson shall read the report of the County Planning Department at the public hearing on the matter under review.
(2) 
Nonaction. If the County fails to report within such period of 30 days, or such longer period as may have been agreed upon by it and the ZBA, the ZBA may act without such report.
(3) 
Receipt prior to final action. Any County Planning Department report received after 30 days or such longer period as may have been agreed upon, but two or more days prior to final action by the ZBA, shall be subject to the provisions of § 220-74A.
(4) 
Notice of ZBA decision to County. Within 30 days after final action by the ZBA, the ZBA shall file a report of the final action with the County Planning Department, and such report shall include a copy of any resolution adopted for action contrary to the County recommendation.
B. 
Referral to Town Planning Board. The ZBA may also refer matters to the Town of Delaware Planning Board for review and recommendation and defer any decision thereon for a period of not more than 30 days pending a report from the Planning Board.
A. 
Time of decision. Decisions by the Zoning Board of Appeals (ZBA) shall be made within 62 days from the date of the final hearing. The time within which the ZBA must render its decision may be extended by mutual consent of the applicant and the ZBA.
B. 
Written decision. The final decision on any matter before the ZBA shall be made by written order signed by the Chairperson. Such decision shall state the findings of fact which were the basis for the ZBA's determination. The ZBA may reverse or affirm, wholly or partly, or may modify the order or requirement of the administrative official appealed from. The decision shall also state any conditions and safeguards necessary to protect the public interest.
C. 
Guidance of decision. The ZBA, in reaching said decision, shall be guided by standards specified herein as well as by the community goals and policies as specified in this chapter and the Town Master Plan. The findings of the ZBA and the supporting facts shall be enumerated in detail, regardless of whether it is based on evidence submitted or on the personal knowledge of the ZBA.
Unless otherwise specified, any order or decision of the Zoning Board of Appeals (ZBA) for a permitted use shall expire if a building or occupancy permit for the use is not obtained by the applicant within 90 days from the date of the decision; however, the ZBA may extend this time an additional 90 days.
Any decision of the Zoning Board of Appeals (ZBA) shall be filed in the office of the Town Clerk within five business days after the day such decision is rendered and shall be made public record. The date of filing of each decision shall be entered in the official records and minutes of the ZBA.
Copies of the decision shall be forwarded to the applicant, the Town Planning Board and the County Planning Department when referral to the County Planning Department is required in the particular case. (See § 220-74A for details of notice to the County.) A certified copy of the ZBA's decision, including all terms and conditions, shall be transmitted to the Town Building Inspector and shall be binding upon and observed by him, and he shall fully incorporate such terms and conditions of the same in the permit to the applicant or appellant whenever a permit is authorized by the ZBA.
The Zoning Board of Appeals (ZBA) is hereby authorized to adopt rules and regulations for the conduct of its business consistent with this chapter and state statutes.
A. 
Application forms. All applications and appeals made to the Board of Appeals shall be in writing on forms prescribed by the Zoning Board of Appeals (ZBA) and signed by the applicant. Every application or appeal shall refer to the specific provision of this chapter involved and shall exactly set forth the interpretation that is claimed, the plans associated with and the details of any variance that is applied for.
B. 
Record of administrative action. When a notice of appeal in any case where a permit or action had been granted or denied by the Building Inspector, Planning Board or Town Board shall be filed, the applicable administrative official shall forthwith transmit to the ZBA all papers constituting the record upon which the action appealed from was taken or, in lieu thereof, certified copies of said papers. Also, it shall be proper for the administrative entity to recommend to the ZBA a modification or reversal of its action in cases where it believes substantial justice requires the same but where the entity has not itself sufficient authority to grant the relief sought.
An appeal shall stay all proceedings in furtherance of the action appealed from unless the acting administrative entity certifies to the Zoning Board of Appeals (ZBA), after the notice of appeal shall have been filed, that by reason of facts stated in the certificate a stay would, in its opinion, cause imminent peril to life or property; in which case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the ZBA or the Supreme Court on application, on notice to the administrative entity and on due cause shown.
Any person aggrieved by a decision of the Zoning Board of Appeals (ZBA) may apply to the Supreme Court for review by proceedings under Article 78 of the Civil Practice Law and Rules. Such proceedings must be instituted within 30 days after the filing of a decision in the office of the Town Clerk.
Whenever the Zoning Board of Appeals (ZBA), after hearing all the evidence presented upon an application or appeal under the provisions of this chapter, denies the same, the ZBA shall refuse to hold further hearings on the said or a substantially similar application or appeal by the same applicant, his successor or assign for a period of one year, unless the ZBA shall find and determine from the information supplied by the request for a rehearing that changed conditions have occurred relating to the promotion of the public health, safety, convenience, comfort, prosperity and general welfare and that a reconsideration is justified.
The applicant shall submit all documentation necessary to demonstrate compliance with the New York State Environmental Quality Review Act, and the Zoning Board of Appeals (ZBA) shall take all required actions relative to the same prior to acting on the special use/site plan.
A. 
It is sometimes difficult to maintain a quorum on the Zoning Board of Appeals (ZBA) because members are ill or on extended vacation or find they have a conflict-of-interest situation on a specific matter before such Board. In such instances, official business cannot be conducted, which may delay or impede adherence to required time lines. The use of alternate members in such instances would avoid such difficulties.
B. 
As used in this section, the following terms shall have the meanings indicated:
ALTERNATE MEMBER
An individual appointed by the Town Board to serve on the Zoning Board of Appeals when a regular member is unable to participate on an appeal or matter before the Board.
MEMBER
An individual appointed by the Town Board to serve on the Zoning Board of Appeals according to the provisions of applicable law, local law or ordinance pursuant to which the Zoning Board of Appeals was established.
TOWN BOARD
The duly constituted Town Board of the Town of Delaware.
ZONING BOARD OF APPEALS
The duly constituted Zoning Board of Appeals of the Town of Delaware.
C. 
Individuals appointed as Alternate Members would serve when members are absent or unable to participate on an application or matter before the Zoning Board of Appeals.
D. 
Alternate Members of the Zoning Board of Appeals may be appointed by the Town Board for a term of two years, with the terms to expire on December 31 of the second year after the date of their appointment.
E. 
The Chairperson of the Zoning Board of Appeals shall designate an Alternate Member to substitute for a Member when such Member is absent or unable to participate on an application or matter before the Board. When so designated, the Alternate Member shall possess all powers and responsibilities of such Member. Such designation shall be entered into the minutes of the initial Zoning Board of Appeals meeting at which the substitution is made.
F. 
Alternate Members shall regularly attend the scheduled meetings and/or work sessions of the Zoning Board of Appeals so as to be available for designation when required and familiar with the applications and/or matters pending before the Board.
G. 
Alternate Members shall serve without compensation.
H. 
All provisions of state law relating to Zoning Board of Appeals member eligibility, vacancy in office, removal, compatibility of office and service on other boards, as well as provisions of any state or local law or ordinance relating to training and continuing education, shall also apply to Alternate Members.
I. 
Supersession of New York State Town Law. This section is adopted pursuant to the provisions of § 10 of the New York State Municipal Home Rule Law and § 10 of the New York State Statute of Local Governments. It is the intent of the Town Board, pursuant to § 10 of the New York State Municipal Home Rule Law, to supersede any inconsistent provisions of § 267 of the New York State Town Law relating to the appointment of members and alternate members to Town Zoning Boards of Appeals.
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).