Establishment and membership. There shall be a Board of Appeals of five members pursuant to the provisions of § 267 of the Town Law. The Town Board shall appoint said members, shall designate a Chairman and may remove any members of the Board of Appeals for cause after public hearing. The members of the Board shall be appointed for a term of five years. If a vacancy shall occur otherwise than by expiration of the term, it shall be filled by the Town Board by appointment for the unexpired term.
Procedure. Meetings shall be held at the call of the Chairman or at other times as the Board of Appeals shall determine. A quorum shall consist of three members, but in order to reverse a decision of the Building Inspector, authorize a variance or grant a special permit, an affirmative vote of at least three members shall be required. The Board shall keep minutes of its proceedings showing the vote of each member upon each question and shall keep records of its examinations and other official actions.
The Board of Appeals shall have all the powers and duties prescribed by law and by this chapter, which are more particularly specified as follows, provided that none of the following provisions shall be deemed to limit the power of the said Board of Appeals that is conferred by law.
Interpretation. On appeals from an order, requirement, decision or determination made by an administrative official or on request by an official, board or agency of the town, to decide any of the following questions:
To authorize, upon appeal in specific cases, such variances from the terms of this chapter as will not be contrary to the public interest where, owing to exceptional and extraordinary circumstances, there are unnecessary hardships in the way of carrying out the strict letter of this chapter subject to terms and conditions to be fixed by the Board; provided, however, that no such variance be granted unless the Board finds:
That there are physical conditions, such as the case of an exceptionally irregular, narrow, shallow or steep lot, fully described in the findings of the Board, applying to the land or building for which the variance is sought, which conditions are peculiar to such land or building and have not resulted from any act of the applicant or any predecessor in title.
That, for reasons fully set forth in the findings on the Board, the aforesaid circumstances or conditions are such that the strict application of the provisions of this chapter would deprive the applicant of the reasonable use of such land or building and the granting of the variance is necessary for the reasonable use of the land and building and that the variance as granted by the Board is the minimum variance that will accomplish this purpose.
That the granting of the variance under such conditions as the Board may deem necessary or desirable to apply thereto will be in harmony with the general purpose and intent of this chapter, will not represent a radical departure therefrom, will not be injurious to the neighborhood, will not change the character thereof and will not be otherwise detrimental to the public welfare.
The needs or desires of a particular owner or tenant or of a particular prospective owner or tenant shall not, either alone or in conjunction with other factors, afford any basis for the granting of a variance. The fact that the improvements already existing at the time of the application are old, obsolete, outmoded or in disrepair or the fact that the property is then unimproved shall not be deemed to make the plight of the property unique or to contribute thereto.
Where the Board finds the zoning classification of a particular property to be conducive to the deprivation of the reasonable use of the land or building by the owner thereof and where the Board deems the same condition to apply generally to other land or buildings in the same neighborhood district, said Board may call this condition to the attention of the Planning Board.
In all cases where the Board of Appeals grants a variance from the strict application of the requirements of this chapter, it shall be the duty of the Board to attach conditions and safeguards as may be required in order that the result of its action may be as nearly as possible in accordance with the spirit and intent of the chapter.
The powers and duties of the Board of Appeals shall be exercised with the following procedure:
The Board of Appeals shall not grant any appeal for a variance without first holding a public hearing, notice of which hearing and of the substance of the appeal shall be given by publication in the official newspaper of the town at least 10 days before the date of such hearing. In addition to such published notice, the applicant shall cause notice to be given of the substance of every appeal for a variance, together with notice of the hearing thereon, by causing notices thereof to be mailed at least 10 days before the date of said hearing to the owners of all property abutting that held by the applicant, in the immediate area (whether or not involved in such appeal) and all other owners within 300 feet, or such additional distances as the Board of Appeals may deem advisable, from the exterior boundaries of the land involved in such appeal, as the names of said owners appear on the last completed assessment roll of the town. Such notice shall be by registered mail, return receipt requested, and the applicant shall furnish proof of compliance with the notification procedure. Any or all of these notices required by this section shall be issued by the Secretary of the Board of Appeals on order of the Board of Appeals. Provided that due notice shall have been published as above provided and that there shall have been substantial compliance with the remaining provisions of the subsection, the failure to give notice in exact conformance herewith shall not be deemed to invalidate action taken by the Board of Appeals in connection with the granting of any appeal or variance.
Where the land involved in any application for a variance lies within 500 feet of any municipal boundary, county or state park or right-of-way of any county or state controlled access highway or right-of-way of any land on which a public building is situated, such application, accompanied by the notice of public hearing, shall be forwarded to the County Planning Department for review in accordance with the provisions of §§ 239-1 and 239-m of Article 12-B of the General Municipal Law of the State of New York.
If the land involved in an appeal lies within 500 feet of the boundary of any other municipality, the Secretary of the Board of Appeals shall also transmit to the Municipal Clerk of such other municipality a copy of the official notice of the public hearing thereon no later than the day after such notice appears in the official newspaper of the town.
At least 10 days before the date of any public hearing, the Secretary of the Board of Appeals shall transmit to the Secretary of the Planning Board a copy of any appeal, together with a copy of the notices of such hearing. The Planning Board may submit to the Board of Appeals an advisory opinion on such appeal.
Unless construction is commenced and diligently prosecuted within six months of the date of the granting of a variance, such variance shall become null and void.
All appeals made to the Board of Appeals shall be in writing on forms prescribed by the Board and shall be accompanied by a fee of $50. However, no fee shall be required for applications requesting an interpretation as provided by § 85-23A.
[Amended 8-14-1980 by L.L. No. 1-1980]
Each appeal shall fully set forth the circumstances of the case. Every appeal or application shall refer to the specific provision of the ordinance involved and shall exactly set forth, as the case may be, the interpretation that is claimed, the details of the variance that is applied for and the grounds on which it is claimed that same should be granted.
Every decision of the Board of Appeals shall be recorded in accordance with standard forms adopted by the Board and shall fully set forth the circumstances of the case and shall contain a full record of the findings on which the decision is based. Every decision of the Board shall be made by resolution, and each such resolution shall be filed in the office of the Town Clerk by case number, under one of the following headings: "Interpretations" or "Variances," together with all documents pertaining thereto. The Board of Appeals shall notify the Building Inspector and each member of the Town Board, the Secretary of the Planning Board and the Municipal Clerk of any affected municipality given notice of hearing set forth in Subsection C of its decision in each case.
All provisions of this chapter relating to the 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; 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 appeal.