[Amended 12-13-1989; 11-16-2004 by L.L. No. 4-2004; 12-15-2015 by L.L. No. 3-2015]
The Town Board shall appoint a Zoning Board
of Appeals consisting of five members, shall designate its Chairman,
and also provide for such expenses as may be necessary and proper.
A member of the Board of Appeals shall not at the same time be a member
of the Town Board. The Town Board shall have the power to remove any
member of the Board of Appeals for cause and after public hearing.
A. Term of appointment. Of the members of the Board of
Appeals first appointed, one shall hold office for the term of one
year, one for the term of two years, one for the term of three years,
one for the term of four years, one for the term of five years from
and after his appointment. Their successors shall be appointed for
terms of five years from and after the expiration of the terms of
their predecessors in office. If a vacancy shall occur otherwise than
by expiration of term, it shall be filled by the Town Board by appointment
for the unexpired term.
B. Staff. The Board of Appeals may employ such clerical
or other staff assistance as may be necessary, and prescribe their
duties, provided it shall not at any time incur expenses beyond the
amount of the appropriations made by the Town Board and then available
for that purpose.
C. Rules of procedure, bylaws, forms. The Board of Appeals
shall have the power to make, adopt, and promulgate such written rules
or procedures, bylaws, and forms as it may deem necessary for the
proper execution of its 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 provisions of this chapter or any other
local laws or ordinances of the Town of Marbletown. Such rules, bylaws,
and forms, and any subsequent amendments or supplements thereto, shall
be submitted to the Town Board by the Board of Appeals for approval
and filing for public view. The Town Board shall move to approve,
reject, or modify such rules, bylaws, and forms within 30 days after
submission. Failure of the Town Board to so move shall be construed
to constitute approval thereof.
D. Meetings. All meetings of the Board of Appeals shall
be held at the call of the Chairman and at such other times as such
Board may determine. The Chairman or, in his absence, the Acting Chairman,
may administer oaths and compel the attendance of witnesses. All meetings
of such Board shall be open to the public. The concurring vote of
a majority of all members of the Board of Appeals shall be necessary
to reverse any order, requirement, decision or determination of the
Code Enforcement Officer or to decide in favor of an applicant in
any matter upon which the Board is required to pass under any ordinance
or local law to effect any variation in this chapter. The Board of
Appeals shall decide an appeal or any other matter referred to it
within 62 days after close of the public hearing.
E. Official minutes. The Board of Appeals shall keep
minutes of its proceedings showing the vote of each member on every
question. If a member is absent or fails to vote, the minutes shall
indicate such fact. Every rule, regulation, every amendment or repeal
thereof, and every order, requirement, decision or determination of
the Board of Appeals shall be filed in the office of the Town Clerk
within five business days and shall be a public record.
F. Referrals to the Planning Board. The Board of Appeals
shall submit a copy of its agenda to the Planning Board prior to the
Planning Board's regular meeting. The Planning Board may request a
copy of any appeal or application before the Board of Appeals and
submit its advisory opinion prior to the Board of Appeals public hearing
on the matter. The Board of Appeals may request an advisory opinion
from the Planning Board regarding any appeal or application before
it. The Planning Board shall submit a report of such advisory opinion
prior to the date of said public hearings. The failure of the Planning
Board to submit such report shall be interpreted as a favorable opinion
for the appeal or application.
G. Alternate members.
(1) Pursuant to Municipal Home Rule Law § 10(1)(ii)(a),
the provisions of Subdivision 11 of § 267 of the Town Law
are hereby superseded to provide that the Town of Marbletown is authorized
to establish alternate Zoning Board of Appeals member positions for
the purpose of substituting for a member in the event such member
is unable to participate because of a conflict of interest, or because
of illness or absence for any reason. The alternate members of the
Zoning Board of Appeals shall be appointed by resolution of the Town
Board for terms of one year.
(2) The Chairperson of the Zoning Board of Appeals may
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 matter before the Board, or for absence or illness
of a member. When so designated, the alternate member shall possess
all of the powers and responsibilities of such member of the Board.
Such designation shall be entered into the minutes of the Zoning Board
of Appeals meeting at which the substitution is made.
Public notice of any required hearing by Board
of Appeals shall be given in accordance with Town Law as follows:
A. By publishing a notice of any appeal or application
and the time and place of the public hearing in the official newspaper
of the Town of Marbletown, not less than five days prior to the date
of such hearing.
[Amended 12-15-2015 by L.L. No. 3-2015]
B. By giving written notice of hearing to any appellant
or applicant, and any other such notice to property owners in an affected
area as may be required by the Board of Appeals, and to the Planning
Board not less than five days prior to such hearing.
C. By giving written notice of hearing to any required
municipal, county, metropolitan, regional, state, or federal agency
in the manner prescribed by law.
The Board of Appeals shall hear and decide appeals
from and review any order requirement, decision, or determination
made by the Code Enforcement Officer under this chapter in accordance
with the procedure set forth herewith:
A. A notice of appeal shall be filed with the Code Enforcement
Officer and the Secretary to the Board of Appeals in writing, in a
form required by such Board, within 30 days of the date of the action
appealed from, specifying the grounds thereof.
B. Upon filing of a notice of appeal and payment of a
filing fee by the appellant or applicant the Code Enforcement Officer
shall forthwith transmit to the Board of Appeals all the papers constituting
the record upon which the action appealed from was taken.
C. The Board of Appeals shall set a reasonable date for
the hearing of each appeal, of which hearing date the appellant shall
be given notice and at which hearing he shall appear in person or
by agent or by attorney.
D. An appeal stays all proceedings in furtherance of
the action appealed from, unless the Code Enforcement Officer certifies
to the Board of Appeals, after a notice of appeal shall have been
filed with him, that by reason of facts stated in the certificate
a stay would, in his 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 Board of Appeals or
by a court of record on application on notice to the Code Enforcement
Officer and on due cause shown.
E. Following public notice and hearing, the Board of
Appeals may reverse or affirm, wholly or partly, or may modify the
order, requirement, decision, or determination appealed from and shall
make such order, requirement, decision, or determination as in its
opinion ought to be made in the premises and to that end shall have
all the power of the Code Enforcement Officer. If the action by the
Board of Appeals is to reverse the action of the Code Enforcement
Officer in whole, the filing fee shall be refunded to the appellant.
The Board of Appeals shall decide the same within 62 days following
close of the public hearing.
[Amended 12-15-2015 by L.L. No. 3-2015]
[Amended 3-21-2006 by L.L. No. 1-2006]
A. The Board, upon an appeal from a decision or determination
of the Code Enforcement Officer, may grant or deny requests for variances
of two types: area variance and use variance as defined in this chapter.
B. The Board shall follow the following procedures in
its review of variance requests:
(1) Area variances.
(a)
In making its determination regarding a request
for an area variance, the Board 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:
[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 variance will have an adverse
effect or impact on the physical or environmental conditions in the
neighborhood or district.
[5]
Whether the alleged difficulty was self-created,
which consideration shall be relevant to the decision of the Board
but shall not necessarily preclude the granting of the area variance.
(b)
The Board, when granting an area variance, shall
grant the minimum variance that it shall deem necessary and adequate
to alleviate the difficulty shown by the applicant and that also will
preserve and protect the character of the neighborhood and the health,
safety and welfare of the community.
(2) Use variances.
[Amended 8-20-2013 by L.L. No. 4-2013]
(a)
If a use variance is granted, the applicant shall obtain site
plan review approval from the Planning Board prior to commencing the
use and prior to obtaining a building permit.
(b)
No use variance shall be granted unless, in addition to satisfying
all other applicable provisions of law and this chapter, the Board
of Appeals finds that otherwise applicable zoning regulations and
restrictions have caused unnecessary hardship.
[1]
Unnecessary hardship. In order to prove such unnecessary hardship
the applicant is required to clearly demonstrate to the Board of Appeals
that, with respect to every permitted use under the zoning regulations
for the particular district where the property is located, each and
every of the following four criteria is satisfied:
[a] The applicant cannot realize a reasonable return
on the entire parcel of property, and such 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 involved;
[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.
(c)
The Board of Appeals, in the granting of use variances, shall
grant only the minimum variance that it shall deem necessary and adequate
to allow an economically beneficial use of the property, and at the
same time preserve and protect the essential character of the neighborhood
and the health, safety and welfare of the community.
(d)
The Board of Appeals, in the granting of use variances, shall
have the authority to impose such reasonable conditions and restrictions
as are directly related to and incidental to the proposed project.
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 use variance may have on the neighborhood or community.
Such conditions may include, but are not limited to, landscaping,
lighting, access and egress, signs, screening, architectural features,
location and layout of buildings, limitations upon the use or characteristics
of the use which are reasonably related to the public health, safety
and general welfare and as may be necessary to carry out the intent
of this chapter. If the applicant refuses to accept such requirements
and conditions, the use variance shall be denied.
C. Board action on a variance request.
(1) The Board may reverse or affirm (wholly 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 Code Enforcement Officer. To
this end, the Board shall have all the powers of the Code Enforcement
Officer.
(2) The Board shall, in the granting of both area and
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 the community.
(3) In rendering its decision on an application for an
area or use variance, the Board shall state the relevant considerations
and any conditions to be imposed.
Any person or persons, jointly or severally
aggrieved by any decision of the Board of Appeals, may apply to the
Supreme Court for relief by a proceeding under Article 78 of the Civil
Practice Law and Rules of the State of New York. Such proceedings
shall be governed by the provisions of Article 78 of the Civil Practice
Law and Rules, except that (a) it must be instituted as therein provided
within 30 days after the filing of a decision in the office of the
Town Clerk, (b) the Court may take evidence or appoint a referee to
take such evidence as it may direct and report the same with his findings
of fact and conclusions of law, if it shall appear that testimony
is necessary for the proper disposition of the matter, and (c) the
Court at special term shall itself dispose of the cause on the merits,
determining all questions which may be presented for determination
under the provisions of § 1296 of said article. Costs shall
not be allowed against the Board of Appeals unless it shall appear
to the Court that it acted with gross negligence or in bad faith or
with malice in making the decision appealed from.
[Added 11-3-2004 by L.L. No. 3-2004]
A. An application for a special permit or variance shall
be accompanied by a fee as established by the Town Board and amended
from time to time.
B. The applicant shall be responsible for the Town's
special consulting costs for engineers, planning consultants, and
attorneys retained by the Town, as required by the Zoning Board of
Appeals, to process the application. Payment of the costs is to be
accomplished by the Zoning Board of Appeals setting up, and the applicant
paying into, an escrow account with the Supervisor, and the Town paying
the consultants. The escrow amount shall be set by the Zoning Board
of Appeals, after solicitation of estimates from the consultants,
engineers and attorneys for the Town. No final approval shall be granted
until such costs are paid in full.