Town of Beekman, NY Article XII Zoning Board of Appeals

§ 155-61 Creation, composition and appointment.

A. Creation. The Zoning Board of Appeals shall be maintained in accordance with § 267 of the Town Law.

B. Composition. The Zoning Board of Appeals shall consist of five members.

C. Appointment. The Town Board shall appoint the members of the Zoning Board of Appeals and shall designate its Chairperson. No person shall serve on the Zoning Board of Appeals who is a member of the Town Board or the Planning Board. The term of each of the Zoning Board of Appeals positions shall be five years, as provided by their creation in according with § 267 of the Town Law. Vacancies shall be filled by the Town Board. If a vacancy occurs other than by expiration of term, it shall be filled by appointment for the unexpired term.

D. Removal. The Town Board shall have the power to remove any member of the Zoning Board of Appeals for cause after public hearing.

E. Compensation. The Town Board may provide compensation to be paid to experts required by the Zoning Board of Appeals, clerks, a secretary and for other expenses as may be necessary and proper.

§ 155-62 Powers and duties.

A. Administrative review.

(1) The Zoning Board of Appeals shall hear and decide appeals from and review any order, requirement, decision or determination made by the Zoning Administrator, Building Inspector, Fire Inspector or any administrative official charged with the enforcement of any law adopted pursuant to Article 16 of the Town Law. It shall also hear and decide all matters referred to it or upon which it is required to pass under any such law, including interpretations of the language, intent of such law or interpretation of the location of zoning district boundaries by the Zoning Administrator or the Building Inspector. The concurring vote of the majority of the members of the Board shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or to decide in favor of the applicant any matter upon which it is required to pass under any such law or to effect any variation in such law. Such appeal may be taken by any person aggrieved, or by an officer, department or board of the Town.

(2) An appeal stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the Zoning Board of Appeals that by reason of facts stated in the certificate, a stay would cause imminent peril to life or property. In such cases, proceedings shall not be stayed otherwise than by a restraining order, which may be granted by the Zoning Board of Appeals or by a court of record upon application, or notice to the officer from whom the appeal is taken and on due cause shown.

(3) The Zoning Board of Appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination as in its opinion ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken.

B. Variances. The Zoning Board of Appeals shall hear and decide applications for variance from the terms of this chapter in accordance with the following provisions. The intent of these provisions is to protect the public interest and to observe the spirit of this chapter and to authorize variances from the strict application of this chapter where there are exceptional and extraordinary circumstances affecting the applicant. The Zoning Board of Appeals may grant such variances when the Board finds that the following criteria, or current criteria consistent with New York State law, have been strictly met.

(1) Area variances.

(a) In the case of an area variance, the applicant is seeking modification of dimensional standards, such as yard requirements, setback lines, lot coverage, frontage requirements or density regulations, so that the property may be utilized for one of the uses permitted by this chapter. 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 to 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 by the granting of the area variance.

[2] Whether the benefit sought by the applicant can be achieved by some method for the applicant to pursue, other than an area variance.

[3] Whether the requested 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 Zoning Board of Appeals, but shall not necessarily preclude the granting of the area variance.

(b) The power of the Zoning Board of Appeals to grant a variance is to be sparingly exercised. Not every applicant for an area variance is automatically entitled to receive relief. Each application should be carefully considered against the requirements. If the Board decides to grant relief, it may grant only the minimum relief necessary to allow reasonable use of the land or building in question.

(2) Use variances.

(a) No such 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 Board that for each and every permitted use under the zoning regulations for the particular district in which 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.

(b) The Zoning Board of Appeals, in granting a use variance, 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 public health, safety and general welfare of the community.

§ 155-63 Procedure.

In its quasi-judicial role, the Zoning Board of Appeals shall act in strict accordance with the procedures specified herein and by §§ 267, 267-a and 267-b of the Town Law.

A. Meetings. All meetings of the Zoning Board of Appeals shall be held at the call of the Chairperson and at such other times as such Board may determine. On the five-member Board, a quorum shall consist of three members. In order to reverse a decision of the Town Zoning Administrator or Building Inspector or authorize a variance, or to decide contrary to the recommendation of the Planning Board, an affirmative vote of at least three members shall be required. A favorable vote of a majority plus one, i.e., at least four members, 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 under the provisions of §§ 239-l and 239-m of the General Municipal Law. All meetings of such Board shall be opened to the public.

B. Minutes. The Zoning Board of Appeals shall keep minutes of its proceedings, showing the vote of each member upon every question or, if absent or failing to vote, indicating such fact, and shall also keep records of its examination and other official actions. Every rule, regulation, amendment or repeal thereof, and every order, requirement, decision or determination of the Board, shall be made part of the minutes. The minutes, once approved, shall be filed in the office of the Town Clerk within 10 days and shall be a public record.

C. Application and fee. All applications to the Zoning Board of Appeals shall be made in writing, on forms prescribed by the Board, and shall be filed with the Zoning Administrator within 30 days of the action appealed from, and shall be accompanied by the applicable fee in accordance with the fee schedule established by the Town Board. Appeals for review of administrative decisions shall also be filed with the Zoning Board of Appeals. Every appeal or application shall refer to the specific law of the Town of Beekman that is involved and shall set forth either the interpretation that is claimed or the details of the variance that is applied for and the grounds on which it is claimed that such variances should be granted. Each application shall also be accompanied with a short or full environmental assessment form as is required by SEQRA, Article 8 of the Environmental Conservation Law (ECL), and Title 6, Part 617, of the New York Codes, Rules and Regulations (NYCRR).

D. Public notice and hearing. The Zoning Board of Appeals shall fix a reasonable time for the hearing of any appeal or application or other matter referred to it. The Zoning Board of Appeals shall require the applicant, at the applicant's cost, to give public notice by publication in the official newspaper of a notice of such hearing, at least 10 days prior to the date thereof, and shall, at least 15 days before such hearing, mail notices by certified mail to the involved parties, to adjacent property owners within 200 feet of the property involved and to the regional state park commission having jurisdiction over any state park or parkway within 500 feet of the property involved affected by such appeal or application. Upon the hearing, any party may appear in person or by agent or by attorney. The names and addresses of owners notified shall be taken as they appear on the last completed tax roll of the Town. If the land involved in the appeal or application lies within 500 feet of the boundary of any other municipality, the applicant shall also submit, at least 10 days prior to the public hearing, to the municipal Clerk of such municipality a copy of the notice of the substance of the appeal or application, together with a copy of the official notice of such public hearing. Proof of notice must be submitted to the Zoning Board Secretary five days prior to the hearing.

E. Required referrals. A full statement of any appeal or application that meets the specific referral requirements of §§ 239-l and 239-m of the General Municipal Law shall be referred prior to the public hearing to the Dutchess County Department of Planning for its review. No action shall be taken by the Zoning Board of Appeals on such appeal or application until an advisory recommendation has been received by said County Planning Department or 30 days have elapsed since the Planning Department received such full statement. The Zoning Board of Appeals may refer applications for variances, and any other pertinent matters, to the Planning Board and Town Engineer for review and recommendations. The Zoning Board of Appeals shall defer any decision on said application or appeal for a period of 30 days or until a report thereon is issued by the Planning Board or Town Engineer. If no report is received within 30 days after such referral, the Planning Board or Town Engineer shall be deemed to have waived any rights concerning the matter being referred.

F. Decisions. Every decision of the Zoning Board of Appeals on an appeal or application shall be made within 62 days of the close of the hearing by the Board, shall be recorded in accordance with standard forms adopted by the Board and shall fully set forth the circumstances of the case and contain a record of the findings upon which the decision is based. Every decision shall be by resolution of the Board, with such decision being filed in the office of the Town Clerk within 10 days thereof. If applicable, a report of the action taken shall also be filed within seven days thereof with the Dutchess County Department of Planning.

G. Rehearing. Whenever the Zoning Board of Appeals, after hearing all the evidence presented upon an appeal or application, denies the same, the Zoning Board of Appeals shall refuse to hold further hearings on the same or substantially similar appeal or application by the same applicant, his successor or assigns for a period of one year, except and unless the Zoning Board of Appeals 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 such that a reconsideration is justified. Such rehearing would be allowed only by a motion initiated by a member of the Zoning Board of Appeals and adopted by not less than a majority of all members.

H. Attachment of conditions. In all cases where the Zoning Board of Appeals grants a variance from the strict application of the requirements of this chapter, it shall be the duty of the Zoning Board of Appeals to attach such conditions and safeguards as may be required in order that the result of its action shall be as nearly as possible with the spirit and intent of this chapter and the criteria for granting the relief stated in § 155-62B.

I. Strict construction. All provisions of this chapter pertaining to the Zoning Board of Appeals shall be strictly construed. The Zoning Board of Appeals, as a body of limited jurisdiction, shall act in full conformity with all provisions of this chapter and in strict compliance with all limitations contained herein.

§ 155-64 Relief from decisions.

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. The specific provisions of Article 78 shall govern such proceeding, except that the action must be initiated as therein provided within 30 days after the filing of the decision of the Zoning Board of Appeals in the office of the Town Clerk.