A.
A Zoning Board of Appeals, as heretofore established by the Village
Board, shall be maintained in accordance with § 7-712 of
NYS Village Law, except as otherwise provided for in the Village Code.
Said Board shall consist of five members for staggered terms of five
years. Vacancies for the unexpired terms of any members shall be filled
for such unexpired period only.
B.
The Village Board shall have the power to remove any member of the
Zoning Board of Appeals for cause and after public hearing. Pursuant
to § 10 of the Municipal Home Rule Law, this chapter supersedes
the provisions of NYS Village Law § 7-712, Subdivision 9,
in its application to the Village.
C.
The Mayor shall appoint the members of the Zoning Board of Appeals
and designate the Chairperson thereof, subject to the approval of
the Village Board. In the absence of a chairperson the members of
the Zoning Board of Appeals may designate a member to serve as acting
chairperson. The Board of Appeals may prescribe reasonable rules,
in addition to those provided herein, for the conduct of its affairs.
The Village Board may provide for compensation to be paid to said
members and to experts, clerks and a secretary and provide for such
other expenses as may be necessary and proper, not exceeding the appropriation
made by the Village Board for such purpose.
D.
No person who is a member of the Village Board or Planning Board
shall be eligible for membership on the Zoning Board of Appeals.
E.
Alternate members shall be appointed to the Zoning Board of Appeals pursuant to the procedures set forth in Chapter 35, Zoning Board of Appeals, of the Village Code. All provisions of state law and of this article pertaining to member eligibility, vacancy in office, removal, training, continuing education, compensation, and attendance shall also apply to alternate members.
F.
Each member of the Zoning Board of Appeals shall complete, at a minimum,
four hours of training each year designed to enable such members to
more effectively carry out their duties, in accordance with the provisions
of § 7-712 of NYS Village Law. Training received by a member
in excess of four hours in any one year may be carried over by the
member into succeeding years in order to meet the requirements of
this subsection. To be eligible for reappointment to such board, such
member shall have completed the training promoted by the Village pursuant
to this subdivision. The training required by this subdivision may
be waived or modified by resolution of the Village Board when, in
the judgment of such Board, it is in the best interest of the Village
to do so. No decision of a board of appeals shall be voided or declared
invalid because of a failure to comply with this subdivision.
Consistent with NYS Village Law § 7-712-B, the jurisdiction
of the Zoning Board of Appeals shall be both appellate and original,
as follows:
A.
Appellate jurisdiction.
(1)
Review of Orders, requirements, decisions, interpretations,
determinations. The Zoning Board of Appeals may reverse or affirm,
in whole or in part, 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 such local law 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. Such appeal may be taken by any person aggrieved,
or by an officer, department, board or bureau of the Village.
(2)
Use variances.
(a)
The Zoning Board of Appeals, on appeal from the decision or
determination of the Code Enforcement Officer, shall have the power
to grant use variances authorizing the use of land for a purpose which
is otherwise not allowed or is prohibited by the terms of this chapter.
(b)
No such use variance shall be granted by the Zoning Board of
Appeals without a showing by the applicant that applicable zoning
regulations and restrictions have caused unnecessary hardship. In
order to prove such unnecessary hardship, the applicant shall demonstrate
to the Zoning Board of Appeals that for each and every permitted use
under the zoning regulations for the particular district where the
property is located:
[1]
The applicant cannot realize a reasonable return, provided that
lack of return is substantial as demonstrated by competent financial
evidence;
[2]
The alleged hardship relating to the property in question is
unique, and does not apply to a substantial portion of the district
or neighborhood;
[3]
The requested use variance, if granted, will not alter the essential
character of the neighborhood; and
[4]
The alleged hardship has not been self-created.
(c)
The Zoning Board of Appeals, 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.
(3)
Area variances.
(a)
The Zoning Board of Appeals shall have the power, upon an appeal
from the decision or determination of the Code Enforcement Officer,
to grant area variances from the dimensional or physical requirements
of this chapter.
(b)
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:
[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 other 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 zoning district; and
[5]
Whether the alleged difficulty was self-created, which consideration
shall be relevant to the decision of the Zoning Board of Appeals but
shall not necessarily preclude the granting of the area variance.
(c)
The Zoning 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.
(4)
Imposition of conditions. The Zoning Board of Appeals shall,
in the granting of both use variances 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. Such conditions shall be consistent with the spirit and
intent of the zoning local law, and shall be imposed for the purpose
of minimizing any adverse impact such variance may have on the neighborhood
or community.
B.
The Zoning Board of Appeals shall act in strict accordance with
the procedures specified in § 7-712-A of NYS Village Law
and this chapter.
A.
Meetings. Meetings shall be held at the call of the Chairperson or
at such other times as the Zoning Board of Appeals may determine.
A quorum shall consist of a majority of all of the members of the
Zoning Board of Appeals as fully constituted, regardless of vacancies
or absences. An affirmative vote of the majority of the members of
the Zoning Board of Appeals as fully constituted shall be required
for all actions of the Board, except that a favorable vote of a majority
plus one shall 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 and Development under the
provisions of §§ 239-1 and 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,
or if absent or failing to vote, indicating such fact. 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.
Filing requirements.
(1)
Every rule, regulation, every amendment or repeal thereof, and
every order, requirement, decision or determination of the Zoning
Board of Appeals shall be filed in the office of the Village Clerk
within five business days and shall be a public record.
(2)
Each order, requirement, decision, interpretation or determination
of the administrative official charged with the enforcement of the
zoning local law shall be filed in the office of such administrative
official within five business days from the day it is rendered, and
shall be a public record.
C.
Assistance to the Zoning Board of Appeals. The Zoning Board of Appeals
shall have the authority to call upon any department, agency or employee
of the Village for such assistance as shall be deemed necessary and
as shall be authorized by the Village Board. Such department, agency
or employee may be reimbursed for any expenses incurred as a result
of such assistance.
D.
Application and fee. All appeals and applications made to the Zoning Board of Appeals shall be in writing, submitted in number and on forms as may be prescribed by the Zoning Board of Appeals within 60 calendar days of the filing of any action appealed from, and shall be accompanied by the applicable fee in accordance with the Fee Schedule established by the Village Board and escrow in accordance with Chapter 72, Escrow Deposits, of the Village Code. 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 be accompanied by Short or Full Environmental Assessment Form as required by the Zoning Board of Appeals pursuant to SEQRA, Article 8 of the Environmental Conservation Law, and 6 NYCRR Part 617.
E.
Public notice and hearing. The Zoning Board of Appeals shall fix
a reasonable time and place for a public hearing on such appeal or
application, of which hearing date the appellant shall be given notice
and at which hearing he or she shall either appear in person or be
represented by an agent. 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. The
Zoning Board of Appeals shall additionally provide notice as follows:
(1)
By publishing at least five calendar days' prior to the
date thereof a legal notice in the official newspaper of the Village.
(2)
By requiring that the Secretary of the Zoning Board of Appeals
or other designated Village employee provide 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 the hearing
thereon by certified mail, return receipt requested, to the owners
of all property lying within 200 feet of the land involved in the
appeal. Compliance with this notification procedure shall be certified
by the Secretary of the Board or other designated Village employee
prior to the public hearing. The Village shall charge the applicant
the actual cost of mailing and publishing the notice, or a reasonable
fee related thereto, for satisfying this requirement.
(3)
The names and addresses of owners notified shall be taken as
such appear on the last completed tax roll of the Village.
(4)
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 Zoning Board
of Appeals in either granting or denying an appeal for a variance
from a specific provision of this chapter.
F.
Referrals.
(1)
The Zoning Board of Appeals shall refer a full statement of
any appeal that meets the referral requirements of §§ 239-1
and 239-m of the General Municipal Law to the Dutchess County Department
of Planning and Development for its review and recommendation. No
action shall be taken by the Zoning Board of Appeals on such appeal
until an advisory recommendation has been received from the County
Planning Department or 30 days have elapsed since said Department
received such full statement.
(2)
The Zoning Board of Appeals may additionally refer any application
to the Planning Board for its review and recommendation. If referred,
the Zoning Board of Appeals shall hold any public hearing open and
defer any decision on the application for a period of 30 calendar
days to permit comments thereon to be issued by the Planning Board.
If no comments are transmitted by the Planning Board to the Zoning
Board of Appeals within 30 calendar days from the date of the referral,
the Zoning Board of Appeals shall be free to proceed with its review
and determination of the application.
G.
Decisions. Every decision of the Zoning Board of Appeals shall be
made within 62 days of the close of the hearing by the Board and shall
set forth 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 Village Clerk within five calendar days thereof.
H.
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. Prior to such expiration,
an applicant may seek a one-year extension of the variance from the
Code Enforcement Officer, who shall grant such extension if there
have been no material changes in the circumstances surrounding the
application. If the Code Enforcement Officer is unable to determine
whether there have been material changes in the circumstances surrounding
the application, the Code Enforcement Officer shall refer the request
for extension to the Zoning Board of Appeals for decision.
Unless the Code Enforcement Officer finds there to be an imminent
threat to either life or property, an appeal shall stay 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 Village Clerk.
