A Zoning Board of Appeals is hereby created in accordance with
§ 81 of the General City Law. Said Board shall consist of
five members, appointed by the Mayor for a term of three years and
subject to removal for cause after public hearing. The Mayor shall
designate the Chairman of the Board of Appeals, while the Board of
Appeals shall designate its Secretary and shall prescribe reasonable
rules for the conduct of its affairs. All members of the Board of
Appeals shall be residents of the City of Amsterdam and shall continue
in office until their successors have been duly appointed and qualified.
Pursuant to § 81, Subdivision 11, of the General City Law,
the Mayor is empowered to appoint up to three alternate Zoning Board
of Appeals member positions, for terms of three years, for the purpose
of substituting for a member in the event that such member is unable
to participate because of a conflict of interest or in order to conduct
a meeting if any of the regular members are not able to attend, with
such powers and according to such procedures as are set forth in the
General City Law.
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:
A.
Interpretation. On appeal from an order, requirement, decision or
determination made by the Code Enforcement Officer or on request by
an official, board or agency of the City to decide any of the following
questions:
B.
Variances. 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 or practical difficulties 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 shall be granted unless the Board finds:
(1)
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 to such land or building and have
not resulted from any act of the applicant or any predecessor in title.
(2)
That, for reasons fully set forth in the findings of 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 or building and that
the variance as granted by the Board is the minimum variance that
will accomplish this purpose.
(3)
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 Zoning Board of Appeals shall act in strict accordance with
the procedure specified by law and this chapter.
A.
Meetings. Meetings shall be held at the call of the Chairman or at
such other times as the Board of Appeals may determine. A quorum shall
consist of three members, but in order to issue an interpretation,
reverse a decision of the Code Enforcement Officer or authorize a
variance, an affirmative vote of at least four members, as prescribed
by General City Law,[1] 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 examination and other official actions.
[1]
Editor's Note: See NY Gen City § 1 et seq.
B.
Application and fee. All appeals and applications made to the Board
shall be in writing, on forms prescribed by the Board, and shall be
accompanied by the applicable fee in accordance with the fee schedule
established and annually reviewed by the Common Council. 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 grounds, which it is claimed that such variance should be
granted.
C.
Public notice and hearing. The Board shall fix a time and place for
a public hearing on any such appeal of application, and shall provide
notice as follows:
(1)
By publishing a notice thereof in the official newspaper of the City
not less than twice, with the initial notice occurring not less than
10 calendar days prior to the date of the public hearing and the final
notice occurring not more than three calendar days prior to the public
hearing.
(2)
By requiring the Secretary of the Zoning Board of Appeals to give
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
hearing thereon by mailing such to the owners of all property abutting
that held by the applicant and all other owners within 200 feet or
such additional distances as the Board of Appeals may deem advisable
from the boundaries of the land involved in such appeal. Compliance
with this notification procedure shall be certified to by the Secretary.
(a)
The names of owners notified shall be taken as such appear on
the last completed tax roll of the City.
(b)
Provided that there shall have been substantial compliance with
these provisions, 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 granting or denying of an appeal for
a variance.
(3)
By requiring the Secretary of the Board of Appeals to transmit to
the Secretary of the Planning Commission a copy of the notice of such
hearing at least 20 calendar days prior to the date thereof. The Board
of Appeals shall request that the Planning Commission submit to the
Board of Appeals an advisory opinion prior to the date of such hearing.
Upon failure of the Planning Commission to submit such report, said
Commission shall be deemed to have recommended approval of the application
or appeal.
(4)
If the land involved in the appeal lies within 500 feet of the boundary
of any other municipality, the Secretary of the Board of Appeals shall
also submit at least 10 calendar days prior to the public hearing
to the municipal Clerk of such other municipality or municipalities
a copy of the notice of the substance of every appeal together with
a copy of the official notice of such public hearing.
D.
Required referral. A full statement of any appeal that meets the
referral requirements of §§ 239-l and 239-m of the
General Municipal Law shall also be referred to the Montgomery County
Planning Board for its review. No action shall be taken by the Board
of Appeals on such appeal until an advisory recommendation has been
received from the County Planning Board or 30 calendar days have elapsed
since the Board received such full statement.
E.
Decisions. 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 shall
be by resolution of the Board, with each such decision being filed
in the Office of the City Clerk within 10 calendar days thereof. The
Board shall notify the Code Enforcement Officer, the Secretary of
the Planning Commission and the municipal Clerk of any affected municipality
given notice of hearing of its decision in each case.
F.
Attachment of conditions. 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 such Board to attach conditions
and safeguards as may be required in order that the result of its
action shall be as nearly as possible in accordance with the spirit
and intent of this chapter.
G.
Expiration of approval. Unless construction or use is commenced and
diligently pursued within one calendar year from the date of granting
of the variance, such variance shall not become vested and shall be
considered null and void without further hearing or action by the
Zoning Board of Appeals. Upon specific application, in writing, by
the owner of the affected property prior to the date of such expiration,
the Zoning Board of Appeals may, however, extend, in its discretion,
the expiration date for a maximum of two periods, not to exceed six
calendar months each, provided that the circumstances and facts relied
upon in the granting of the variance have not materially changed.
H.
Strict construction. All the 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 therein; 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 application or appeal.
An appeal stays all proceedings in furtherance of the action
appealed from unless the Code Enforcement Officer from whom the appeal
is taken certifies to the Board of Appeals after the notice of appeal
shall have been filed with him that by reason of acts stated in the
certificate a stay would, in his 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 Board of Appeals
or by a court of record on application, on notice of the officer from
whom the appeal is taken and on due cause shown.
Any person or persons jointly or severally aggrieved by any
decision of the 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 City Clerk.
