[Amended 6-14-2004 by L.L. No. 2-2004]
Pursuant to the applicable provisions of the
Village Law, there shall be a Board of Appeals consisting of five
members appointed by the Mayor, subject to the approval of the Board
of Trustees. No member of the Board of Appeals shall be a member of
the Village Board of Trustees.
A.
The Mayor shall appoint the Chairperson of the Board
of Appeals, at its annual meeting, subject to the approval of the
Board of Trustees. In the absence of a Chairperson, the Board of Appeals
may designate a person to serve as Acting Chairperson.
B.
The Board of Appeals, by the vote of its majority,
shall select a Secretary.
C.
Members of the Board of Appeals shall receive no compensation
for their services.
[Amended 6-14-2004 by L.L. No. 2-2004]
Each successor to an original appointee shall
be appointed for a term of five years. A vacancy occurring for reason
other than by expiration of a term shall be filled by the Mayor, subject
to the approval of the Board of Trustees, for the unexpired term only.
[Added 6-14-2004 by L.L. No. 2-2004]
All Board of Appeals members shall be required
to attend a minimum of two New-York-State-sponsored educational or
training courses during their five-year terms. Members shall be reimbursed
for the actual expenses incurred by their attendance, including but
not limited to program fee, lodging, food, and travel.
[Added 6-14-2004 by L.L. No. 2-2004]
Any person appointed to the Board of Appeals
of the Village shall attend at least 75% of all regularly scheduled
meetings of the Board during a period of 12 consecutive months.
[Added 6-14-2004 by L.L. No. 2-2004]
When a member of the Board of Appeals appointed
to a term of office by the Mayor or Board of Trustees fails to attend
at least 75% of all regularly scheduled meetings of the Board of Appeals
for a period of 12 consecutive months, or fails to attend the minimum
number of educational requirements established by this chapter, the
position may be deemed vacant, after public hearing, by the vote of
a majority of the Board of Trustees, at a meeting held no sooner than
10 days after written notice of a proposed resolution to declare the
position vacant is given to such member and, upon approval of a resolution
of the Board of Trustees declaring such position be vacant, the position
shall be deemed vacant forthwith and shall be filled in the manner
provided by law for the duration of the term for which such member
was appointed.
[Added 6-14-2004 by L.L. No. 2-2004]
A.
Legislative findings. The Board of Trustees finds
that it is in the best interests of the Village residents to create
not more than two positions of alternate member of the Zoning Board
of Appeals to sit on applications and other matters for such members
as are unable to participate because of a conflict of interest or
because of an inability to attend a meeting, in order to help assure
that a quorum is readily available to hear applications and other
matters in a timely manner. Since Paragraph 11 of § 7-712
of the Village Law solely provides for the establishment of such positions
when members are unable to participate because of a conflict of interest,
the Board of Trustees seeks to both implement the provisions of said
section and simultaneously to supersede the limitations of said section,
to the extent necessary, if at all, to provide that such alternate
members may also act when members are unwilling, unavailable or, for
any other reason, do not attend a meeting or participate on an application.
B.
Appointment and term, The Mayor is hereby authorized
to appoint, subject to the approval of the Board of Trustees, not
more than two alternate members to the Zoning Board of Appeals. Each
such appointee shall serve for a three-year term. No alternate member
shall also serve as a member or alternate member of the Planning Commission.
C.
Designation and powers. The Chairperson of the Zoning
Board of Appeals shall designate an alternate member to substitute
for a member when such member is unable to participate because of
a conflict of interest on an application or other matter before the
Zoning Board of Appeals or when a member is unwilling, unavailable
or, for any other reason, does not attend a meeting or participate
on an application. The alternate member shall be designated prior
to the initial meeting of each application where a regular member
is unable to participate, when practical, and attend, deliberate,
and vote in every meeting and action(s) taken by the Zoning Board
of Appeals thereafter during the review of the application in place
of the member being substituted. When so designated the alternate
member shall possess all the powers and responsibilities of such member.
When so designated such designation shall be entered into the minutes
of the initial Zoning Board meeting at which the substitution is made.
D.
Limit of number of alternate members' participation.
Under no circumstances shall more than one alternate member participate
at any one time on any application.
The Board of Appeals shall have the power to
make, adopt and promulgate such written rules of procedure, bylaws
and forms as they may deem necessary for the proper execution of their
duties and to secure the intent of this chapter. Such rules, bylaws
and forms shall not be in conflict with nor have the effect of waiving
any provision of this chapter or any other of the Village of Ellenville.
A.
The Board of Appeals is governed by and shall act
in strict accordance with the procedures specified by the Village
Law, this chapter, and its own duly adopted rules, bylaws and forms.
Upon proper request made in the form and manner prescribed by the
Board and accompanied by a fee in accord with a schedule adopted by
the Village Board, the Zoning Board of Appeals shall perform the following
functions:
(1)
Hear and decide any question properly brought before
it involving the interpretation of any provision of this chapter.
(2)
Hear and decide appeals from any decision, determination,
act or failure to act of the enforcement officer and all matters properly
referred to it by the enforcement officer.
B.
In exercising the above-mentioned powers and duties,
the Board of Appeals may, in conformity with the Village Law, reverse,
affirm or modify the order, requirement, decision or determination
appealed from and shall make such order, requirement, decision or
determination as ought to be made in the case referred to it. To that
end, the Board shall have all the powers of the enforcement officer
from whom the appeal is made. The concurring vote of a majority of
the Board of Appeals shall be necessary to reverse any order, requirement,
decision or determination of the enforcement officer or to decide
in favor of the applicant any matter upon which such Board is required
to pass.
The Board of Appeals, on due notice, shall hold
a public hearing on every appeal and application for a variance referred
to said Board or upon which it is required to pass under this chapter.
A.
Notice of each public hearing shall be published in
a newspaper of general circulation in the Village of Ellenville at
least seven days prior to such hearing. In addition, the Village Clerk
shall send notice of such hearing and an explanation of any change
sought to all property owners within 200 feet of the subject property.
Such notices shall be sent to the last known address as shown on the
most recent Village tax records and mailed at least seven days prior
to such public hearing.
B.
Within 62 days after such public hearing and after
considering the application, the Board of Appeals shall either grant
or deny the request or appeal and make a written report on the findings
and conclusions concerning the subject matter of such hearing, including
the reasons for the grant or denial of the relief sought. Such decision
shall be filed in the office of the Village Clerk within 10 days.
The Board of Appeals shall, upon proper request,
interpret any provision of this chapter about which there is uncertainty,
lack of understanding or misunderstanding, ambiguity or disagreement
and shall determine the exact location of any zoning district boundary
about which there may be uncertainty or disagreement.
A.
Any person allegedly aggrieved by a decision, determination,
act or refusal to act of the enforcement officer may file an appeal
with the Board of Appeals. Such request shall clearly state the decision,
determination, act or failure to act of the enforcement officer from
which the appeal is taken.
B.
Any appeal from a decision of the enforcement officer
properly filed with the Board of Appeals shall stay all proceedings
in furtherance of the action appealed from, unless the enforcement
officer certifies to the Board of Appeals that, by reason of facts
stated in the certification, a stay would, in his opinion, cause imminent
peril to life and property.
C.
The Board of Appeals shall have the power to grant
a restraining order to stay all proceedings in furtherance of the
action appealed from, over any action by the enforcement officer from
whom the appeal is taken, upon notice to the enforcement officer and
on due cause shown.
In making a determination on an appeal from
Article X, Flood Damage Prevention, the Zoning Board of Appeals shall
consider all technical evaluations, standards specified in other sections
of this chapter and the following factors:
A.
The danger to life and property due to increased flood
heights or velocities caused by encroachments.
B.
The danger that materials may be swept onto other
lands to the injury of others.
C.
The susceptibility of the proposed facility and its
contents to flood damage and the effect of the damage on the individual
owner.
D.
The importance of the services provided by the proposed
facility to the community.
E.
The necessity to the facility of a waterfront location.
F.
The availability of alternative locations, not subject
to flooding damage, for the proposed use.
G.
The compatibility of the proposed use with existing
and anticipated development.
H.
The relationship of the proposed use to the Comprehensive
Plan, floodplain management program and zoning designation for the
area.
I.
The safety of access to the property in times of flood
for ordinary and emergency vehicles.
J.
The expected heights, velocity, duration, rate of
rise and sediment transport of the floodwaters expected at the site.
K.
The costs of providing governmental services during
and after flood conditions, including maintenance and repair of public
utilities and facilities, such as sewer, gas, electrical and water
systems, and streets and bridges.
[Amended 12-10-2012 by L.L. No. 6-2012]
A.
The Board of Appeals, on appeal from the decision or determination of the administrative officer charged with enforcement of this chapter, shall have the power to grant variances, as set forth in § 227-120 below.
B.
Notwithstanding any provisions of this chapter to the contrary, where a proposed site plan, special use permit or subdivision contains one or more features which do not comply with these regulations, application may be made to the Zoning Board of Appeals for an area variance pursuant to § 227-120B below without the necessity of a decision or determination by the administrative official charged with the enforcement of this chapter.
[Amended 12-10-2012 by L.L. No. 6-2012]
A.
Use variances.
(1)
No use variance shall be granted by the 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 Board
of Appeals 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)
The 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 proved 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.
B.
Area variances.
(1)
In making its determination, the Zoning Board of Appeals shall
take into consideration 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 area 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; and
(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.
(2)
The Board of Appeals, in the granting of area variances, 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.
[Amended 12-10-2012 by L.L. No. 6-2012]
The 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.
A.
At least 30 days before the date of a public hearing
held in connection with any application for a variance submitted to
the Board of Appeals, the Board of Appeals shall transmit to the Planning
Commission a copy of said application and shall request that the Planning
Commission submit to the Board of Appeals its advisory opinion on
said application. The Planning Commission shall submit a report of
such advisory opinion prior to the date of said hearing. The failure
of the Planning Commission to submit such report shall be interpreted
as a favorable opinion for the granting of the variance applied for.
In addition to the criteria set forth above,
the following conditions for variances shall be considered for a proposed
development or use in a special flood hazard area:
A.
Variances may be issued for new construction and substantial improvements to be created on a lot of 1/2 acre or less contiguous to and surrounded by lots with existing structures constructed below the base flood level, provided that the factors in § 227-122 have been considered. As the lot size increases beyond the 1/2 acre, the technical justification required for issuing the variance increases.
B.
A variance may be issued for the reconstruction, rehabilitation
or restoration of a structure listed on the National Register of Historic
Places without regard to the procedures set forth in the remainder
of this section.
C.
A variance shall not be issued within any designated
floodway if any increase in flood levels during the base flood discharge
will result.
D.
Variances shall be issued upon a showing of good and sufficient cause; a determination that failure to grant the variance would result in exceptional hardship to the applicant; and a determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances as identified in § 227-122 or conflict with existing local laws or ordinances.
E.
An applicant to whom a variance is granted to construct
a structure below the base flood level shall be notified, in writing,
of the consequent increase in premium rates for flood insurance and
that such construction below the base flood level increases risk to
life and property.
F.
The Building Inspector shall maintain the records
of all appeal and variance actions, including justification for their
issuance, and report any variance to the Federal Insurance Administration,
upon request, or with the annual report to the Federal Insurance Administration.
[1]
Editor's Note: See also Article X, Flood Damage
Prevention.
