A.
Establishment and membership. There shall be a Board of Appeals of
five members pursuant to the provisions of Article 16 of the Town
Law. The Town Board shall appoint said members, shall designate a
Chairman, and may remove any member 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.
B.
Procedure. Meetings shall be held at the call of the Chairman or
at other such times as the Board of Appeals may determine. A quorum
shall consist of three members, but, in order to reverse a decision
of the Building Inspector or authorize a variance, 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.
C.
The Town Board of the Town of Mount Hope shall be responsible for
appointing an attorney or attorneys to represent the Zoning Board
of Appeals and to make all appropriations necessary for the attorney
or attorneys.
D.
Alternate members of the Board of Appeals and the Planning Board.
(1)
Board of Appeals. As authorized by Town Law § 267, Subdivision
11, the Town Board hereby establishes up to three positions of alternate
member of the Board of Appeals, who may serve on such Board in the
event that a regular member is unable to serve. Appointment, terms,
training requirements, duties and responsibilities of such alternate
members shall be as provided in Town Law § 267, Subdivision
11. The Town Board intends to supersede § 267, Subdivision
11, of the Town Law only to expand the circumstances in which an alternate
may serve, so that an alternate may serve when a regular member has
a conflict of interest or is absent or where there is a vacancy on
the Board of Appeals.
(2)
Planning Board. As authorized by Town Law § 271, Subdivision
15, the Town Board hereby establishes up to three positions of alternate
member of the Planning Board, who may serve on such Board in the event
that a regular member is unable to serve. Appointment, terms, training
requirements, duties and responsibilities of such alternate members
shall be as provided in Town Law § 271, Subdivision 15.
The Town Board intends to supersede § 271, Subdivision 15,
of the Town Law only to expand the circumstances in which an alternate
may serve, so that an alternate may serve when a regular member has
a conflict of interest or is absent or where there is a vacancy on
the Planning Board.
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 any power of said Board that is conferred by law:
A.
Interpretation. On appeal 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:
B.
Variances. To authorize, upon appeal in specific cases, such variances
from the terms of this chapter after public notice and personal notice
and after hearing and subject to appropriate safeguards and conditions
for the protection of public and of neighboring properties as will
not be contrary to the public interest where, due to exceptional and
extraordinary circumstances, there are unnecessary hardships in the
way of carrying out of the strict letter of this chapter, subject
to terms and conditions to be fixed by the Board. The sole purpose
of any variance shall be to prevent discrimination, and no variance
shall be granted which would have the effect of granting a special
privilege not shared by other property in the same vicinity or zone.
(1)
Use variance. The Board of Appeals, on appeal from the decision or
determination of the administrative official charged with the enforcement
of this chapter, shall have the power to grant use variances, authorizing
the 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 Board of Appeals without a showing by the applicant
that applicable zoning regulations and restrictions create unnecessary
hardship. In order to prove such unnecessary hardship, the applicant
must demonstrate to the Board and the Board must find that:
(a)
Under applicable zoning regulations the applicant is deprived
of all economic use or benefit from the property in question, which
deprivation must be established 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 district
or neighborhood.
(c)
The requested use variance, if granted, will not alter the essential
character of the neighborhood.
(d)
The alleged hardship has not been self-created.
(2)
Area variance. The Zoning Board shall have the power upon appeal
from a decision or determination of an administrative official charged
with the enforcement of this chapter, or upon direct application of
a property owner, to grant area variances from the area or dimensional
requirements of this chapter. In making its determination, the Board
shall take into account 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:
(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 variance;
(b)
Whether the benefit sought by the applicant can be achieved
by some method, feasible for the applicant to pursue, other than an
area variance;
(c)
Whether the requested area variance is substantial;
(d)
Whether the proposed variance will have an adverse effect or
impact on the physical or environmental conditions in the neighborhood
or 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)
Basis for determination of variance.
(a)
That the granting of either an area or use 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. That for the reasons
set forth in the findings of the Board, the granting of the variance
is necessary for the reasonable use of the land or building, and that
the variance as granted by the Zoning Board is the minimum variance
that will accomplish this purpose.
(b)
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.
(c)
Where the Board finds the zoning classification of a particular
property to be conducive to the deprivation of any economic benefit
or 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 or district, said Board
may call this condition to the attention of the Planning Board or
Town Board.
(d)
In all cases where the Board of Appeals grants a variance from
the strict application of the requirement 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 may be nearly as
possible in accordance with the spirit and intent of this chapter.
A.
Application for any action by the Board of Appeals shall be submitted
in the form required by the Board and filed with the Town Clerk.
B.
The Board shall fix a time and place for a public hearing thereon,
and shall provide for giving of notice at least five days prior to
the date thereof, as follows:
(1)
By publishing a notice in the official newspaper for at least two
consecutive days or editions.
(2)
By requiring the Secretary of the Board of Appeals to transmit to
the Secretary of the Planning Board a copy of any appeal for a variance
together with a copy of the notice of such hearing.
(3)
By requiring the applicant to give notice of the substance of every
appeal for a variance together with notice of the hearing in a form
prescribed and approved by the Zoning Board thereon by mailing 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 a 500-foot radius, or such additional distance
or persons as the Board of Appeals may deem advisable, from the exterior
boundaries of the land involved in such appeal, and to further provide
notice may be either by certified or registered mail, return receipt
requested.
(a)
The names of said owners shall be taken as they appear on the
last completed tax roll of the Town.
(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 the granting of an appeal for a variance.
C.
If the land involved in an appeal lies within 500 feet of the boundary
of any other municipality, the applicant shall also mail to the municipal
clerk of such other municipality or municipalities, a copy of notice
of the substance of every appeal together with 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. Such notice
shall be by registered mail, return receipt requested, and the applicant
shall furnish proof of compliance with the notifications procedure.
D.
Areas within 500 feet.
(1)
Where the land involved in any application for a variance lies within
500 feet of:
(a)
The boundary of any other municipality; or
(b)
The boundary of any existing or proposed county or state park
or other recreation area; or
(c)
The right-of-way of any existing or proposed county or state
road or highway; or
(d)
The right-of-way of any stream or drainage channel owned by
the county or for which the county has established channel lines;
or
(e)
The existing or proposed boundary of any county- or state-owned
land on which a public building is situated; or
(f)
The boundary of a farm operation within an agricultural district
as defined by Article 25-AA of the Agricultural and Markets Law.
(2)
In such cases, unless waived by the agreement between the Town of
Mount Hope and Orange County, the application, accompanied with the
notice of public hearing, shall be transmitted by the Secretary of
the Board of Appeals to the Orange 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. No action shall be taken by the Board of Appeals on such
application until the Department's recommendation has been received
or 30 days have elapsed after the Department received the full statement
on the application's proposal.
E.
A variance shall become null and void and shall be deemed abandoned
after six months of its issuance in writing unless:
F.
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 according
to the Town fee schedule. In addition, the applicant is responsible
for mailing together with the deposit on the day of the hearing of
an additional amount to be applied to the payment of the original
and one copy of the stenographic minutes and expenses for the benefit
of the Town, the applicant to be obligated to pay the entire cost
thereof. A refund shall be made of the deposit which is in excess
of stenographic expenses.
G.
Each appeal shall fully set forth the circumstances of the case.
Every appeal or application shall refer to the specific provision
of this chapter 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 the
same should be granted.
H.
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 by resolution, and each such resolution shall be filed in the office of the Town Clerk by case number, under the heading of either "interpretation" or "variance." The filing shall include all documents pertaining to the decision. The Board of Appeals shall notify the Town Clerk, the Building Inspector, 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 § 250-82C of its decision in each case.
I.
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.
