[Amended 9-13-2022 by L.L. No. 1-2022]
Pursuant to §§ 267, 267-a, and 267-b of
New York State Town Law, a Zoning Board of Appeals (ZBA) is hereby
established in the Town of Tusten. The ZBA shall perform all the duties
and have all the powers prescribed by the above sections of Town Law
and as herein provided.
A.
Membership. The ZBA shall consist of five members to be appointed
by the Town Board, retaining the Board as presently constituted. The
term of each Board member is five years, staggered so that one member's
term expires each year.
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 ZBA 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 ZBA 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.
[Amended 9-13-2022 by L.L. No. 1-2022]
The 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 charged with the enforcement
of this chapter and to that end shall have all the powers of the administrative
official from whose order, requirement, decision, interpretation or
determination the appeal is taken.
B.
Area variances.
(1)
The ZBA shall have the power, upon an appeal from a decision
or determination of the Code Enforcement Officer (CEO), after public
notice and hearing and in accordance with the requirements of law
and this chapter, to grant area variances as defined herein.
(2)
Notwithstanding any provision of law to the contrary, where
a proposed site plan or subdivision plat contains one or more features
which do not comply with the zoning regulations, application may be
made to the Zoning Board of Appeals for an area variance without the
necessity of a decision or determination of the CEO.
C.
Use variances. The ZBA shall have the power, upon an appeal from
a decision or determination of the CEO, after public notice and hearing
and in accordance with the requirements of law and this chapter, to
grant use variances as defined herein.
D.
Interpretations. The ZBA shall, upon request from or appeal of a
decision or determination by the CEO, 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.
[Amended 9-13-2022 by L.L. No. 1-2022]
The 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 record of the findings
of the ZBA in the particular case. (General information on the Zoning
Boards of Appeals in New York State is available from the NYS Department
of State, Division of Local Government Services.)
[Amended 9-13-2022 by L.L. No. 1-2022]
A.
Use variances. The ZBA, on appeal from the decision or determination
of the CEO, shall have the power to grant use variances, as defined
herein. If the use variance is granted, the developer shall obtain
site plan review approval from the Planning Board, if applicable,
prior to commencing the use or obtaining a building permit.
B.
Required findings.
(1)
No such use variance shall be granted by the ZBA without a showing
by the applicant that otherwise applicable zoning regulations and
restrictions have caused unnecessary hardship. In order to prove such
unnecessary hardship the applicant shall demonstrate to the ZBA that
for each and every permitted use under the zoning regulations for
the particular district where the property is located,
(a)
The applicant cannot realize a reasonable return, provided that
lack of return is substantial as demonstrated 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 neighborhood; and
(d)
That the alleged hardship has not been self-created.
(2)
In order to assist the ZBA in making the above findings, the
ZBA shall consider the following:
(a)
Reasonable rate of return. In evaluating whether the applicant
cannot realize a reasonable rate of return, the ZBA must find that
the applicant has clearly demonstrated, by detailed dollars-and-cents
proof, the inability to obtain a reasonable return for the entire
parcel (and not just the site of the proposed development project,
as applicable) and for each and every permitted use in the district
(including those uses permitted by special use permit).
(b)
Unique hardship.
[1]
The ZBA must find that the parcel possesses unique
characteristics that distinguish it from other properties in the area.
[2]
Essential character of the neighborhood. In making
its determination of whether the proposed development project will
alter the essential character of the neighborhood, the ZBA shall consider
factors that are of vital importance to the citizens of the Town including
the rural, residential, and historic character of the Town; the irreplaceable
recreation and tourism sites, impacts of the use including health,
socioeconomic, and environmental impacts; and impacts on property
values.
[3]
Self-created hardship. For example, the ZBA may
find that the applicant suffers from a self-created hardship in the
event that the Board finds that:
[a]
The applicant's inability to obtain a reasonable
return on the property as a whole results from having paid too much
or from a poor investment decision; the applicant previously divided
the property and is left with only a portion which suffers from some
unique condition for which relief is sought and which did not apply
to the parcel as a whole; or when the applicant purchased the property,
he or she knew or should have known the property was subject to the
zoning restrictions.
[b]
The above events are illustrative only and not
intended to cover every situation where the ZBA may determine the
existence of a self-created hardship.
C.
Additional submission requirements. An application for a use variance
shall also contain a typewritten narrative explaining what the application
is for, and how it meets all of the criteria for a use variance, including:
(1)
Competent financial evidence.
(a)
Competent financial evidence containing reasonable specification
of the nature and factual particulars of such claim, and articulating
the basis for the applicant's claim, and including, at a minimum
(as to the entire parcel of which the proposed project is a part):
[1]
Date of acquisition;
[2]
The purchase price;
[3]
Present value of the property;
[4]
The amount of real estate taxes;
[5]
The amount of mortgages or liens and other expenses;
[6]
The asking price for the property when it had been
offered for sale;
[7]
The costs of demolishing any existing structures
on the property;
[8]
Cost of erecting a new building(s) for each and
every permitted use in the zoning district (including uses allowed
by special use permit);
[9]
Efforts to market the property; and
[10]
A schedule of all other property in common ownership
at either the date of the enactment of this chapter or thereafter.
(b)
Competent financial evidence must include dollars-and-cents
proof such as appraisals, economic studies, and any other evidence
supporting the developer's contention that the desired relief
is appropriate, including appraisals relating to any alleged diminution
of all or substantially all of the fair market value of property.
For the purposes of this article, common ownership means all other
interests in property either located within the Town or contiguous
to the Town that is held by the any of the applicants, whether such
ownership is of a legal or equitable interest, in whole or in part,
contiguous or not, and whether such property interest is held by any
of the applicants through a legal or equitable interest in a(nother)
corporation, partnership, trust, business, entity, association, fund,
joint venture, or individually.
(2)
Unique nature of the property. The applicant must provide evidence
demonstrating the unique nature of parcel as a whole. 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. Exceptional topographic conditions
are an example of a factor demonstrating the unique nature of the
property.
(3)
Alteration of the essential character of the neighborhood. The
applicant must demonstrate that the proposed development project will
not change the essential character of the neighborhood with regard
to physical, economic, social and environmental elements. Adverse
impacts to the essential character of the neighborhood include, but
are not limited to, decreased quality or increased quantity of stormwater
runoff, increased soil erosion, increased traffic congestion, decreased
road quality, impairment of the scenic or rural character of roads,
increased noise, dust, odor and/or glare, reduced wildlife habitat,
decreased air quality, decreased water quality, impairment of the
viewshed, creation of solid wastes, negative impacts on sustainability
efforts, increased social costs, increased emergency response times,
negative impacts to public infrastructure, decreased property values,
and negative impacts on the health of area residents.
(4)
Hardship not self-created. The applicant must demonstrate that
the hardship is not self-created.
D.
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.
E.
Conditions. The ZBA shall, in the granting use 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. 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.
[Amended 9-13-2022 by L.L. No. 1-2022]
A.
Area variances. The ZBA shall have the power, upon an appeal from
a decision or determination of the CEO, to grant area variances as
defined herein.
B.
Required findings. area variance shall mean the authorization by
the ZBA for the use of land in a manner that is not allowed by the
dimensional or physical requirements of the applicable zoning regulations.
In making its determination, the ZBA shall take into consideration
the benefit to the applicant if the area variance is granted, and
balance this benefit against the detriment to the health, safety and
welfare of the neighborhood or community by making such grant. In
making such determination the Board shall consider each of the following
factors:
(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 area variance will have an adverse effect
or impact on the physical or environmental conditions in the neighborhood
or district; and
(5)
Whether the alleged difficulty was self-created, which consideration
shall be relevant to the decision of the Board of Zoning Appeals,
but which consideration 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 area 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.
D.
Additional submissions. In addition to the information required for
all applications set forth herein, applications for an area variance
shall contain a typewritten narrative explaining what the application
is for, and how the application addresses all of the criteria for
an area variance.
E.
Conditions. The Zoning Board of Appeals shall, in the granting of
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. 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 area variance may
have on the neighborhood or community.
[Amended 9-13-2022 by L.L. No. 1-2022]
A.
Applications. Every appeal and application for a variance shall be
in writing and on forms prescribed by the ZBA. Six copies of the appeal
or application and supporting documentation shall be filed with the
Zoning Officer, accompanied by a fee in the amount set from time to
time by resolution of the Town Board.
B.
Content of submission. Each appeal or application shall fully set
forth the circumstances of the case and contain the following information
and documentation:
(1)
Contact information. The name, address and telephone number
of the property owner and, if different, the name, address and telephone
number of the developer(s).
(2)
Property description. Address, tax ID number for the property,
existing use, acreage of parcel, and zoning designation.
(3)
Development project description. A narrative description of
the proposed development project, with reference to the appropriate
use and regulations of this chapter.
(4)
Deed, lease, development agreement. A copy of the recorded deed
must be furnished evidencing ownership of the property, together with
copies of any leases, development agreements or other agreements between
the property owner and the developer(s).
(5)
List of required permits. A list of all federal, state and other
permits and other governmental approvals that would be required to
implement the development project, and evidence of whether the developer
(or its agents) have applied for any such permits and approvals and
whether the developer (or its agents) have received any of the listed
approvals.
(6)
Copies of permit applications. Copies of any environmental assessments
or permit applications and supporting materials submitted to any other
permitting agency in connection with the development project.
(7)
Site development plan. A complete site development plan, in accordance with the requirements set forth in Article XIII.
(8)
Attestation. Signature of the developer, or the owner and the
developer if the developer is not the owner, attesting to the accuracy
of the statements and representations made in the application, and
constituting a certification by the owner, or owner and developer
(as applicable), that each has undertaken due diligence in the filing
of the appeal.
C.
Additional submission requirements for appeals or applications regarding
explicitly prohibited uses. In addition to all of the other information
required for all use variance applications and/or all other information
required for appeal applications, the following reports shall be submitted
in any application or appeal concerning what is otherwise an explicitly
prohibited use. The purpose of these reports in the context of otherwise
explicitly prohibited uses is to assist the Zoning Board of Appeals
in its determination as to the impact of a proposed development project
on the Town and/or the essential character of the neighborhood and/or
to determine whether the proposed development project complies with
the requirements of this chapter:
(1)
Environmental assessment form. A completed draft of an Environmental
Assessment Form, Part 1.
(2)
Description of surrounding uses. The approximate location of
all neighboring residential, hamlet, park/recreational, and/or agricultural
areas, as well as all county-designated unique natural areas and locally
designated critical environmental areas (if any) within a two mile
radius of the perimeter of the site of the proposed use.
(3)
Traffic impact report.
(a)
The proposed traffic circulation plan, the projected number
of motor vehicle trips to enter or leave the site, estimated for daily
and peak hour traffic levels;
(b)
Existing and proposed daily and peak traffic hour levels as
road capacity levels;
(c)
A determination of the area of impact of traffic to and from
the proposed development project;
(d)
The proposed traffic routes to the nearest intersection with
an arterial highway, including gross weights and heights of vehicles;
(e)
The projected traffic flow pattern including vehicular movements
at all major intersections likely to be affected by the proposed development
project;
(f)
The impact of this traffic upon existing abutting public and
private ways in relation to existing road capacities;
(g)
A traffic impact analysis of the effects of the proposed development
project on the transportation network in the Town using passenger
car equivalents;
(h)
Articulation of the effects and impacts of the proposed development
project on traffic based on existing conditions and projected future
background traffic on the state, county, and Town road system;
(i)
Evaluation of whether the resulting traffic conditions are likely
to hinder the passage of police, fire and emergency response vehicles,
or degrade the quality of life, and/or otherwise contribute to hazardous
traffic conditions;
(j)
And determination of whether there is sufficient road frontage
so that any vehicle leaving the site may turn into the lane of traffic
moving in the desired direction and be channeled within such lane
before crossing the nearest intersection or proceeding along the road
and any vehicle entering the property may turn out of the nearest
lane of traffic without interfering with other traffic.
(4)
Road impact report. An evaluation of i) appropriate roadway
geometry including required road widths, bridge widths, starting and
stopping sight distances, intersection sight distances, horizontal
and vertical curves along the proposed traffic routes; ii) the adequacy
of existing pavement structures along the proposed traffic routes
to accommodate the full weight load of any high-impact trucks likely
to be used in connection with the proposed development project; and
iii) impacts to the rural or scenic character of any roads along the
proposed traffic route.
(5)
Transportation plan. A ) description of ingress and egress through
the proposed development project site through which equipment and
supplies will be delivered and which will provide access during and
after construction; and ii) identification of any roads, streets,
intersections, bridges, and other facilities along the proposed traffic
route that do not meet New York State Department of Transportation
standards. Such plan shall describe any anticipated improvements to
existing roads, bridges, or other infrastructure, any new road or
access construction, measures which will be taken to avoid damaging
access/traffic routes and measures that will be taken to restore damaged
routes following construction, and measures to maintain the scenic
and/or rural characteristics of such roads.
(6)
Noise impact report. A report on the following topics:
(a)
The existing audible conditions at the development project site
to identify a baseline sound presence and preexisting ambient noise,
including seasonal variation;
(b)
A description and map of sound-producing features of the proposed
development project from any noise-generating equipment and noise-generating
operations that will be conducted in connection with the proposed
project site, including noise impacts from truck traffic travelling
within the Town to and from the proposed development project;
(c)
For the noise generated by construction and use of the proposed
development project, the range of noise levels and the tonal and frequency
characteristics expected, and the basis for the expectation;
(d)
A description and map of the existing land uses and structures
including any sound receptors (i.e., residences, hospitals, libraries,
schools and places of worship, parks, areas with outdoor workers)
within one mile of the development project parcel boundaries. Said
description shall include the location of the structure/land use,
distances from the proposed development project and expected decibel
readings for each receptor;
(e)
The report shall cover low frequency, A-weighted, infrasound,
pure tone, and repetitive/impulse noise;
(f)
And the report shall describe the development project's
proposed noise-control features, including specific measures proposed
to protect workers and mitigate noise impacts for sensitive receptors.
(7)
Visual assessment. A visual presentation of how the site of
the proposed development project will relate to and be compatible
with the adjacent and neighboring areas, within a two miles radius
of the perimeter of the site of the proposed development project.
This presentation shall include computerized photographic simulation
showing the site during construction and fully developed and demonstrating
any visual impacts from strategic vantage points. Color photographs
of the proposed site from at least two locations accurately depicting
the existing conditions shall be included. The study shall also indicate
the color treatment of the facility's components and any visual
screening incorporated into the project that is intended to lessen
visual prominence.
(8)
Report of natural gas and/or petroleum extraction, exploration
or production wastes and other wastes. A report of i) a description
of natural gas and/or petroleum extraction, exploration or production
wastes and other solid wastes, industrial wastes, hazardous wastes
and pollutants expected to be produced, stored, injected, discarded,
discharged, disposed, released, or maintained on the development project
site; ii) a description of controls and practices to eliminate or
minimize release all such materials into the environment; and iii)
a plan for ultimate disposal of such materials whether on- or off-site.
(9)
Sustainability analysis. A discussion of i) the extent of the
use of nonrenewable resources during the initial and continued phases
of the proposed development project; ii) the expected duration of
the initial and continued phases of the proposed development project;
and iii) the extent to which the proposed development project may
contribute to an irreversible commitment to the continuation of this
proposed use by future generations.
(10)
Compatible uses report. A discussion of characteristics of the
proposed development project that may decrease the Town's and/or
the neighborhood's suitability for other uses such as residential,
commercial, historical, cultural, tourism, recreational, environmental
or scenic uses.
(11)
Fiscal impact assessment. An assessment describing the adverse
effects and impacts on Town revenue and costs necessitated by additional
public facility and service costs likely to be generated by the proposed
development project.
(12)
Fire prevention, equipment failure and emergency response report.
A report containing:
(a)
Description of the potential fire, equipment failures and emergency
scenarios associated the proposed development project that may require
a response from fire, emergency medical services, police or other
emergency responders;
(b)
An analysis of the worst-case disaster associated with the proposed
development project and the impact of such a disaster upon the health,
safety and welfare of the inhabitants of the Town and their property;
(c)
Designation of the specific agencies that would respond to potential
fires, equipment failures, accidents or other emergencies;
(d)
Description of all emergency response training and equipment
needed to response to a fire, accident, equipment failure or other
emergency, including an assessment of the training and equipment available
to local agencies; and
(e)
The approximate or exact location of all fire, police, and emergency
response service facilities within a five-mile radius of the perimeter
of the site of the proposed use, and a detailed fire control and pollution
prevention and emergency response plan.
(13)
Public facilities and services assessment. An assessment describing:
(a)
Whether current Town public facilities and services, including
water supply, fire protection, school services, recreation facilities,
police protection, roads and stormwater facilities, are adequate for
the proposed development project (taking into account all other uses
that have been permitted or are currently operating in the Town);
(b)
A comparison of the capacity of the public services and facilities
to the maximum projected demand that may result from the proposed
development project (in determining the effect and impact of the proposed
development project on fire, police, and emergency services, the review
shall take into consideration response times, and the number and location
of available apparatus and fire, police and emergency service stations
that are manned by full-time professional service personnel, and where
applicable, calculation of response time shall also include the time
it takes volunteer emergency personnel to get to their stations);
and
(c)
A review of the impact of the proposed development project on
the safety of all children going to and from school by car, bus, bicycle,
and walking during and outside of school zone hours and whether safety
measures such as signaled crosswalks, elevated sidewalks, green space
buffers for pedestrians/bikes where established walking/biking route
overlap/run along intended truck routes so as to prevent accidents.
(14)
Property value assessment. A property value analysis, prepared
by a licensed appraiser in accordance with industry standards, regarding
the potential impact of the development project on the value of properties
adjoining the project site.
(15)
Health impact assessment. A human health impact assessment that
identifies ways in which the proposed development project could adversely
affect the health of Town residents and a priority list of recommendations
to minimize the potential health impacts of the proposed development
project. The health impact assessment shall include i) a risk assessment
of possible impact of chemical exposure on the health of residents,
including the Chemical Abstract Service number of all chemicals proposed
to be used or generated at the development project site; ii) an assessment
of possible health effects due to industrial operations in non-heavy-industrial
zoned areas; iii) an assessment of possible health effects due to
community changes including the presence of an industrial activity
in a previously non-heavy-industrial area, a perceived loss of shared
community ideals and cohesion, declining property values, impacts
to the education system and sudden changes in population numbers,
demographics and customs; and iv) proposed remedies to address principal
findings.
D.
Additional special conditions.
(1)
In granting a variance, or in making any determination upon
which it is required to pass after public hearing under this chapter,
the ZBA may apply such special conditions that may, in the opinion
of the Board, be required to promote the intent and purposes of the
Comprehensive Plan of the Town and this chapter. Such special conditions
shall be based on competent credible evidence on the record, be incorporated
into the decision, and may include, in addition to any other special
conditions, but are not limited to, provisions for:
(a)
Minimizing adverse impact of the development upon other land;
(b)
Ensuring the type, intensity, design, location, character and
performance of activities be in harmony with the orderly development
of the Town;
(c)
Controlling the sequence of development, including when it must
be commenced and completed;
(d)
Controlling the duration of use or development and the time
within which any temporary structure must be removed;
(e)
Assuring satisfactory installation and maintenance of required
public improvements; designating the exact location and nature of
development;
(f)
Establishing detailed records by submission of drawings, maps,
plats or specifications;
(g)
Ensuring all proposed structures, equipment and materials shall
be readily accessible for fire and police protection;
(h)
Ensuring that the nature and intensity of operations involved
in or conducted in connection with the proposed use, its site layout
and its relation to access streets be such that both pedestrian and
vehicular traffic to and from the use and assembly of person in connection
therewith will not be hazardous or inconvenient to or incongruous
with the Town or conflict with the normal traffic of the Town.
(2)
If the developer refuses to accept such requirements and conditions,
the variance or special use permit shall be denied. Failure to abide
by any conditions attached to a special use permit or variance shall
constitute a zoning violation.
E.
Environmental review. The Board of Zoning Appeals shall comply with
the provisions of the State Environmental Quality Review Act (SEQRA)
under Article 8 of the Environmental Conservation Law and its implementing
regulations as codified in Section 617 of Title 6 of the New York
Codes Rules and Regulations.
F.
No violations. No special use permit, use variance, or area variance
shall be issued for a property where there is an existing violation
of this chapter upon such property.
G.
Coordination and consultation. The Board of Zoning Appeals may refer
applications for special use permits, use variances, area variances
and appeals for reviewed by the Zoning Officer, the Fire Department,
the Department of Public Works and any other Town officials or non-Town
consultants deemed appropriate by the Board of Zoning Appeals. These
may include, but shall not be limited to, local and county officials
and representatives of county, state, and federal agencies, including
the Natural Resource Conservation Service, Sullivan County Soil and
Water District, the State Department of Transportation, and the State
Department of Environmental Conservation. Any comments from these
reviewers shall be forwarded to the Board to aid its decision on the
application or appeal. Additional consultation where fees are involved
shall require approval by the Town Board and any such fees shall be
borne by the developer.
A.
Interpretations. The Town Board, Code Enforcement Officer (CEO) or
Planning Board of the Town of Tusten may request the 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
Code Enforcement Officer (CEO) with respect to this chapter, who believes
such decision to be in error, may appeal to the ZBA as follows:
[Amended 2-14-2017 by L.L. No. 2-2017]
(1)
Administrative act. An administrative act shall include any order,
requirement, decision, interpretation or determination by the CEO.
(2)
The ZBA may reverse of affirm, in whole or in part, or may modify
the order, requirement, decision, interpretation or determination
as in its opinion ought to be made in the matter by the CEO and to
that end shall have all the powers of the official from whom the appeal
is taken.
(3)
Time for appeal. An appeal must be made to the ZBA within 60 days
after the filing of any order, requirement, decision, interpretation
or determination made by the CEO. Once an appeal is filed the CEO
shall forthwith transmit to the ZBA all the papers constituting the
record upon which the action appealed from was taken.
(4)
Application to the ZBA. The applicant must file a signed notice of
appeal and file six copies of the application on forms required by
the ZBA with the ZBA. All information required thereon shall be completed
before an appeal is considered filed.
A.
Timing and public notice. The 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
statue, 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. The ZBA is a quasi-judicial body whose methods
and decision making are governed by state law as to the rules of evidence
and procedure. Its authority extends to all questions relative to
this chapter. Its authority falls into three areas:[1] 1) variances or exceptions to this chapter and 2) interpretation
of this chapter when the Department of Development & Operations
(D&O) is unable to answer a question.
[1]
Editor's Note: So in original.
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 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 member 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 ZBA shall mail notices thereof to relevant parties, to the federal,
state, or regional state park commissions having jurisdiction over
any federal, state park or parkway within 500 feet of the property
affected by the appeal or application and to the Sullivan County Division
of Planning and Environmental Management 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 Sullivan
County Division of Planning and Environmental Management 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 Sullivan County Division of Planning
and Environmental Management 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 Sullivan County Division of Planning and Environmental Management 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 Subsection A(1) of this section.
(4)
Notice of ZBA decision to Sullivan County Division of Planning
and Environmental Management. Within 30 days after final action by
the ZBA, the ZBA shall file a report of the final action with the
Sullivan County Division of Planning and Environmental Management,
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 Tusten 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 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 of Tusten Comprehensive
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.
D.
Expiration of permits. Unless otherwise specified, any order or decision
of the 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 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 Sullivan Division of Planning when
referral to the County Planning Department is required in the particular
case. A certified copy of the ZBA's decision, including all terms
and conditions, shall be transmitted to the Town Code Enforcement
Officer (CEO) 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 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 ZBA shall
be in writing on forms prescribed by the 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 Code Enforcement
Officer (CEO), 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 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 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 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 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.
In the event that conflicts of interest or other causes result
in the absence, disqualification or recusal of any regularly appointed
member or members of the ZBA, the Town Board shall appoint an ad hoc
member or members in such number as shall be sufficient to constitute
a full Board of five members for the purpose of hearing and determining
a specific appeal or application pending before the ZBA from which
the regularly appointed members have been absent, disqualified or
recused. The term of any such ad hoc appointment shall expire concurrently
with the making of a final determination by the ZBA with respect to
the appeal or application for which such ad hoc appointment was made.
Once designated to serve on a particular matter pending before the
ZBA, the ad hoc member or members shall have the same powers and duties
as regular members of the ZBA until that matter is concluded. Any
determination by the ZBA consisting of ad hoc members shall have the
same weight and be entitled to the same authority as the act or deed
of the regular ZBA and all laws, statutes and regulations shall apply
and be applied with equal force and effect.
