[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.
(3) 
Grant variances to provisions of this chapter in accordance with §§ 227-119 through 227-123.
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.
B. 
Any application for a variance involving real property lying within 500 feet of any of the features listed under § 227-137A shall be referred to the Ulster County Planning Board at least 30 days prior to final action in accord with §§ 239-l and 239-m of the General Municipal Law.
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.