A.
The Zoning Board of Appeals is hereby established in accordance with
the provisions of the Town Law.
B.
Alternate members.
(1)
The Town Board may appoint up to three alternate members, with
each such position having a term of one year, for purposes of substituting
for a member(s) in the event such member(s) is absent or unable to
participate because of a conflict of interest. All provisions relating
to members of zoning boards of appeals, including training, continuing
education, attendance and compensation, apply to alternate members.
(2)
The Chairman of the Zoning Board of Appeals shall determine
when an alternate member shall substitute for a member on any particular
application or matter before the Board. Once designated, the alternate
member shall possess all the powers and responsibilities of the member
being substituted for to make determinations. The minutes of the Zoning
Board of Appeals shall reflect the meeting at which the substitution
is made.
The Zoning Board of Appeals shall have the powers and duties
prescribed by the Town Law and this chapter, including the following:
A.
Appeals. to hear and decide appeals from and review any order, requirement,
decision, and determination made by the Building Inspector or Zoning
Administrator, or their respective deputies under this chapter (but
no other official or board of the Town), which appeals may be taken
by any person aggrieved or by any officer, department or board of
the Town of Fishkill.
B.
Use variances.
(1)
The Zoning Board of Appeals, upon appeal from the decision or
determination of the Zoning Administrator, shall have the power to
grant use variances authorizing a use of land which otherwise would
not be allowed or would be prohibited by the terms of 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 regulations
and restrictions imposed by this chapter have caused unnecessary hardship.
In order to prove such unnecessary hardship, the applicant shall demonstrate
to the Board of Appeals compliance with each of the following criteria:
(a)
That under the applicable regulations and restrictions imposed
by this chapter, the applicant is deprived of substantial economic
use and benefit from the property in question, which deprivation must
be established by competent financial evidence.
(b)
That the alleged hardship relating to the property in question
is unique and does not apply to a substantial portion of the district
or neighborhood.
(c)
That the requested use variance, if granted, will not alter
the essential character of the district or neighborhood.
(d)
That the alleged hardship has not been self-created.
(3)
The Board of Appeals, in the granting of a use variance, shall
grant the minimum variance that is deemed 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.
C.
Area variances.
(1)
The Zoning Board of Appeals, upon appeal from the decision or
determination of the Zoning Administrator, shall have the power to
grant area variances from the dimensional or physical requirements
of this chapter.
(2)
In making its determination, the Zoning Board of Appeals shall
take into consideration the benefit to the applicant if the area 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 of Appeals shall also consider each
of the following factors:
(a)
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.
(b)
Whether the benefit sought by the applicant can be achieved
by some other method feasible for the applicant to pursue, other than
an area variance.
(c)
Whether the requested area variance is substantial.
(d)
Whether the proposed area variance will have an adverse effect
or impact on the physical or environmental conditions in the neighborhood
or zoning district.
(e)
Whether the alleged difficulty was self-created, which consideration
shall be relevant to the decision of the Board of Appeals but shall
not necessarily preclude the granting of the area variance.
(3)
The Board of Appeals, in the granting of an area variance, 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.
D.
Interpretation. The Zoning Board of Appeals shall, upon appeal from
a decision by an administrative official, decide any question involving
the interpretation of any provision of this chapter.
E.
Referral to Planning Board. The Zoning Board of Appeals shall refer
to the Planning Board applications for use variances and may refer
to the Planning Board any other pertinent matters for review and recommendations.
The Zoning Board of Appeals shall defer any decision thereon for a
period of not more than 30 days pending a report from the Planning
Board. Upon failure to submit such report, the Planning Board shall
be deemed to have waived any rights concerning the matter being referred.
F.
Training requirements. The State of New York has recognized the importance
of training for members of the Zoning Board of Appeals in § 267
of the Town Law.
(1)
Each member of the Zoning Board of Appeals shall be required
to attend a minimum of three hours of training relevant to the responsibilities
of the Board within one year of appointment to such Board, and a minimum
of three hours of additional training in each calendar year succeeding
the year of appointment. Prospective Board members shall be advised
of these requirements.
(2)
Noncompliance with the Town's minimum requirements for training
shall be a proper cause for removal from office pursuant to Town Law
§ 267, Subdivision 9.
(3)
The costs of training shall be a Town charge, and members of
the Zoning Board of Appeals shall be reimbursed for the cost of the
training, provided such training and attendant costs have been approved
in advance by the Town Board.
(4)
Approved training courses. Training sessions which relate to
the duties of members of the Zoning Board of Appeals may include programs
offered by the New York Department of State, the New York State Association
of Towns, the New York State Department of Environmental Conservation,
the Dutchess County or Westchester County Planning Federations or
other appropriate entities. The Town Board, after consultation with
the Chairperson of the Zoning Board of Appeals, may annually designate
training courses which will meet the Town's training requirements.
(5)
Notwithstanding the foregoing, the failure of a member of the
Zoning Board of Appeals to obtain the required training shall not,
absent Town Board action, affect that member's appointment to serve
on the Board, to entertain and vote on applications or the validity
of that member's acts as a Board member.
In its quasi-judicial role, the Zoning Board of Appeals shall
act in strict accordance with the procedures specified by the Town
Law and this chapter.
A.
Meetings. Meetings shall be held at the call of the Chairman or at
such other times as the Zoning Board of Appeals may determine. A quorum
shall consist of a majority of the members. A concurring vote of a
majority of the members of the Board shall be necessary to reverse
a decision of the Building Inspector or the Zoning Administrator or
to authorize a variance. A favorable vote of a majority plus one shall
also be required if the action taken by the Zoning Board of Appeals
is contrary to an advisory recommendation received from the Dutchess
County Department of Planning under the provisions of § 239-m
of the General Municipal Law. The Board shall keep accurate minutes
of its proceedings, documenting fully all findings and showing the
vote of each member upon each question. All meetings and deliberations
of the Board of Appeals shall be open to the public to the extent
provided in Article 7 of the Public Officers Law.
B.
Application and fee. All appeals and applications made to the Board
shall be in writing, submitted in triplicate on forms prescribed by
the Board within 60 calendar days of the filing in the Town Clerk's
office of any action appealed from, and shall be accompanied by the
applicable fee in accordance with the fee schedule annually reviewed
and established by the Town Board. 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 ground
on which it is claimed that such variance should be granted. Each
application shall also comply with Article 8 of the Environmental
Conservation Law (SEQRA) and 6 NYCRR 617. In addition, any application
for a property connected to the municipal sewer system shall include
a fully executed current certificate of sewer compliance.
C.
Public notice and hearing. A public hearing shall be conducted in conformance with the requirements of Chapter 114 of the Town of Fishkill Code. Notice of such public hearing shall be posted, published and mailed as required by Chapter 114 before said hearing is held. The applicant for the variance shall either appear in person or be represented by an agent at said hearing. Any other interested party may appear at such public hearing in person, by attorney or other agent or submit comments, in writing, for receipt prior to the public hearing.
[Amended 4-3-2019 by L.L.
No. 1-2019]
(1)
Proof of compliance with the notification procedures of Chapter 114 shall be certified to by the Secretary or other designated Town employee. The Town shall charge the applicant either a flat rate or a stated amount per notice for satisfying this requirement.
(2)
Provided that there has been substantial compliance with this
provision, the failure to give notice in exact conformance herewith
shall not be deemed to invalidate an action taken by the Board of
Appeals in either granting or denying an appeal for a variance from
a specific provision of this chapter.
D.
Referral. A full statement of any appeal that meets the specific
referral requirements of §§ 239-l and 239-m of the
General Municipal Law shall also be referred prior to the public hearing
to the Dutchess County Department of Planning for its review. No action
shall be taken by the Zoning Board of Appeals on such appeal until
an advisory recommendation has been received from said County Planning
Department or 30 calendar days have elapsed since the Planning Department
received such full statement.
E.
Decisions. Every decision of the Zoning Board of Appeals on an appeal
or request shall be made within 62 calendar days of the close of the
hearing by the Board, and shall be recorded in accordance with standard
forms adopted by the Board and shall fully set forth the circumstances
of the case and contain a full record of the findings on which the
decision is based, including record of compliance with the applicable
provisions of SEQRA, Article 8 of the Environmental Conservation Law,
and 6 NYCRR 617. Every decision shall be by resolution of the Board,
with such decision being filed in the office of the Town Clerk within
five business days thereof. The Board shall also notify the Zoning
Administrator, the Building Inspector, the Secretary of the Planning
Board and any affected municipality given notice of hearing of its
decision in each case. If applicable, a report on the action shall
also be filed with the Dutchess County Department of Planning.
F.
Attachment of conditions. 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 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.
G.
Expiration of approval. Unless construction or use is diligently
commenced within one calendar year from the date of the granting of
a variance, such variance shall become null and void without further
hearing or action by the Zoning Board of Appeals.
Unless the Zoning Administrator or the Building Inspector finds
there to be an imminent threat to either life or property, an appeal
stays all proceedings in furtherance of the action which is the subject
of the appeal.
Any person or persons jointly or severally aggrieved by any
decision of the Zoning 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 Town Clerk.
