A.
Pursuant to Town Law, the Town Board shall appoint
a Zoning Board of Appeals consisting of seven members, shall designate
its Chairman and may also provide for compensation to be paid to said
members and provide for such other expenses as may be necessary and
proper. A member of the Zoning 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 Zoning Board of Appeals for cause
and after public hearing. Pursuant to § 10, Subdivision
1(ii)d(3), of the Municipal Home Rule Law, this chapter supersedes
the provisions of Town Law § 267, Subdivision 2, in its
application to the Town of Poughkeepsie.
B.
Terms of appointment. The members of the Zoning Board
of Appeals shall be appointed for terms of seven 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.
C.
Rules of procedure. The Zoning Board of Appeals shall
have the power to make, adopt and promulgate such written rules of
procedures, bylaws and forms as it may deem necessary for the proper
execution of its duties and to secure the intent of this chapter.
Every rule, regulation and every amendment or repeal thereof shall
be filed in the office of the Town Clerk and shall be a public record.
In addition to any other matters within its authority, the Zoning
Board of Appeals is hereby authorized to promulgate rules regarding
the following matters:
(1)
The day and time by which applications for new matters,
and supplemental materials for pending matters, must be submitted
to the Secretary of the Zoning Board of Appeals in order to be considered
at the next meeting of the Board.
(2)
The number of copies of materials that must be submitted
for new and pending matters.
(3)
The maximum number of applications that may be heard
at a regular meeting of the Board.
(4)
The form of the applications for variance and interpretation
requests including the use of a long-form or a short-form environmental
assessment form for certain matters.
(5)
The maximum length of time of a regular meeting of
the Board.
(6)
The conduct of applicants and the public at meetings
and public hearings of the Board.
D.
Meetings.
(1)
All meetings of the Zoning 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 his or her designee will administer
oaths and compel the attendance of witnesses. All meetings of such
Board shall be open to the public.
(2)
The Zoning 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 order, requirement, decision or determination of
the Zoning Board of Appeals shall be filed in the office of the Town
Clerk and shall be a public record.
E.
Referrals to the Planning Board. In connection with
any appeal or application submitted to the Zoning Board of Appeals,
said Board may transmit to the Planning Board a copy of said appeal
or application for an advisory opinion. Upon such request, the Planning
Board shall submit a report of such advisory opinion within 62 days
of the receipt of the referral.
F.
Public notice and hearing. The Zoning Board of Appeals
shall fix a reasonable time for the hearing of the appeal, interpretation,
special use permit, or other matter referred to it and give public
notice thereof by the publication in the official newspaper of a notice
of such hearing, at least 10 days prior to the date thereof, and shall,
at least 10 days before such hearing, mail notice thereof to the owners
of property within 200 feet of the parcel requesting relief. Such
notice shall not be required for adjourned dates. The notice shall
state the date, time, place and subject of the public hearing at which
the application will be reviewed. Such notice shall not be required
for adjourned dates. The records of the Receiver of Taxes of the Town
of Poughkeepsie shall be deemed conclusive as to ownership, and the
notice shall be deemed complete when deposited in a properly addressed,
postpaid envelope in the United States mail. The Zoning Board of Appeals
may provide that the hearing be further advertised in such manner
as it deems most appropriate for full public consideration of the
application, including the prominent placement of one or more signs
on the premises that is the subject of the application notifying interested
persons that an application is under consideration by the Board.
G.
County referral. Prior to action on an application
for an area variance, a use variance, or a special use permit under
this section, a copy of said application shall be forwarded to the
Dutchess County Planning Department for review pursuant to General
Municipal Law § 239-m if the boundary of the property that
is the subject of the application is located within 500 feet of:
(1)
The boundary of any city, village, or town; or
(2)
The boundary of any existing or proposed county or
state park or other recreation area; or
(3)
The right-of-way of any existing or proposed county
or state parkway, thruway, expressway, road or highway; or
(4)
The existing or proposed right-of-way of any stream
or drainage channel owned by the county or for which the county has
established channel lines; or
(5)
The existing or proposed boundary of any county- or
state-owned land on which a public building or institution is situated;
or
(6)
The boundary of a farm operation located in an agricultural
district, as defined by Article 25-AA of the Agriculture and Markets
Law.
H.
Referral to neighboring municipalities. Pursuant to
General Municipal Law § 239-nn, for a use variance or a
special use permit review under this section involving property located
within 500 feet of an adjacent municipality, notice of any public
hearing shall be given by mail or electronic transmission to the Clerk
of the adjacent municipality not less than 10 days prior to the date
of said hearing.
I.
Notice to park commission and county planning board
or agency or regional planning council. At least five days before
such hearing, the Zoning Board of Appeals shall mail notices thereof
to the parties; to the regional state park commission having jurisdiction
over any state park or parkway within 500 feet of the property affected
by such appeal.
J.
Agricultural data statement. An application for an
area variance, a use variance, or a special use permit must also contain
an agricultural data statement if any portion of the project is located
on property within an agricultural district containing a farm operation,
or other property with boundaries within 500 feet of a farm operation
located in an agricultural district. The agricultural data statement
shall contain the name and address of the applicant; a description
of the proposed project and its location; the name and address of
any owner of land within the agricultural district which contains
farm property: and a tax map or other map showing the site of the
proposed project relative to the location of farm operations identified
in the agricultural data statement.
K.
Assistance. The Zoning Board of Appeals shall have
the authority to call upon any department, agency or employee of the
Town for such assistance as shall be deemed necessary and as shall
be authorized by the Town Board. Such department, agency or employee
shall be reimbursed for any expenses incurred as a result of such
assistance.
L.
Decision. The Zoning Board of Appeals shall make a
decision within 62 days after the final hearing. The concurring vote
of the majority of all members of the Zoning Board of Appeals shall
be necessary to reverse any order, requirement, decision or determination
of any official charged with the administration of this chapter or
to decide in favor of an applicant in any matter upon which it is
required to pass under any ordinance or to effect any variation in
this chapter.
M.
Default denial. In exercising its appellate jurisdiction only, if an affirmative vote of a majority of all members of the Board is not attained on a motion or resolution to grant a variance or reverse any order, requirement, decision or determination of the enforcement officer within the time allowed by Subsection L herein, the appeal shall be deemed denied. The Board may amend the failed motion or resolution and vote on the amended motion or resolution within the time allowed without being subject to a rehearing process.
N.
Appeals. Any person or persons jointly or severally
aggrieved by any decision of the Zoning Board of Appeals may apply
to the Supreme Court for relief by a proceeding under Article 78 of
the Civil Practice Act of the State of New York. Such proceeding shall
be governed by the provisions of Article 78 of the Civil Practice
Act, and must be instituted as provided within 30 days after the filing
of a decision in the office of the Town Clerk. The court may take
evidence or appoint a referee to take such evidence as it may direct
and report the same with any findings of fact and conclusions of law
if it shall appear that testimony is necessary for the proper disposition
of the matter. The court at special term shall itself dispose of the
cause on the merits, determining all questions which may be presented
for determination. Costs shall not be allowed against the Zoning 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 a decision
appealed from.
A.
The Zoning Board of Appeals shall hear and decide
appeals from and review any order, requirement, decision or determination
made by the Zoning Administrator or the Building Inspector under this
chapter in accordance with the procedures set forth herein.
B.
Violations. Upon written report or receipt of a notice
of violation or an order to cease and desist from the Zoning Administrator
and/or Building Inspector for a violation of this chapter, the Zoning
Board of Appeals shall not review, hold public meetings or public
hearings, and shall take no action regarding an application for area
variance approval, use variance approval, or interpretation until
notified by the Zoning Administrator and/or Building Inspector that
such violation has been cured or ceased by the applicant. However,
the Board may, upon written recommendation of the Zoning Administrator
and/or Building Inspector, review and act on an application involving
property for which there is a violation where such application is
a plan to cure the violation and bring the property or use of the
property into compliance with this chapter.
C.
Upon filing of a notice of appeal and payment of a
filing fee by the appellant or applicant, the Zoning Administrator
shall forthwith transmit to the Zoning Board of Appeals all the papers
constituting the record upon which the action appealed from was taken.
D.
An appeal shall stay all proceedings in furtherance
of the action appealed from, unless the administrative officer charged
with the enforcement of such ordinance or local law, from whom the
appeal is taken, certifies to the Zoning Board of Appeals, after the
notice of appeal has been filed with the administrative officer, that
by reason of facts stated in the certificate a stay would, in his
or her 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 Zoning Board of Appeals or by a
court of record on application, on notice to the administrative official
from whom the appeal is taken and for due cause shown.
E.
Time of appeal. An appeal shall be taken within 60
days after the filing of any order, requirement, decision, interpretation
or determination of the administrative officer charged with the enforcement
of such ordinance or local law by filing with such administrative
officer and with the Zoning Board of Appeals a notice of appeal, specifying
the grounds thereof and the relief sought. The administrative official
from whom the appeal is taken shall immediately transmit to the Zoning
Board of Appeals all the papers constituting the record upon which
the action appealed from was taken. The cost of sending or publishing
any notices relating to such appeal shall be borne by the appealing
party and shall be paid to the Board of Appeals prior to the date
set for hearing on such appeal.
[Amended 9-7-2011 by L.L. No. 21-2011]
A.
Interpretations. Upon the appeal from a decision by
an administrative official, the Zoning Board of Appeals shall decide
any question involving interpretation of any provision of this chapter,
including any determination of the exact location of any district
boundary if there is uncertainty with respect thereto. 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 administrative
official. In making such determination, the Board shall have all of
the powers of the administrative official from whose order, requirement,
decision, interpretation or determination the appeal is taken.
B.
Use variances. The Zoning Board of Appeals, on appeal
from the decision or determination of the administrative officer charged
with the enforcement of this chapter, shall have the power to grant
use variances, as defined in the New York State Town Law. No use variance
shall be granted by the Board without a showing by the applicant that
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 for each and every permitted use under
the zoning regulations for the particular district where the property
is located:
(1)
That the applicant cannot realize a reasonable return,
provided that lack of return is substantial as demonstrated by competent
financial evidence, and
(2)
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, and
(3)
That the requested use variance, if granted, will
not alter the essential character of the neighborhood, and
(4)
That the alleged hardship has not been self-created.
C.
Use variance approval and conditions. In granting
a use variance, the Zoning Board of Appeals 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 health,
safety and welfare of the community. The Board may grant approval
of a use variance on such conditions as the Board may find reasonable
and necessary to preserve and protect the character of the neighborhood
and the health, safety and welfare of the community. Said 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.
D.
Area variances. The Zoning Board of Appeals shall
have the power, upon an appeal from a decision or determination of
the administrative officer charged with the enforcement of this chapter,
to grant area variances as defined in the Town Law. In making its
determination, 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:
(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 environment conditions in the
neighborhood or district; and
(5)
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.
E.
Area variance approval and conditions. In granting
an area variance, the Zoning Board of Appeals 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 health,
safety and welfare of the community. The Board may grant approval
of an area variance on such conditions as the Board may find reasonable
and necessary to preserve and protect the character of the neighborhood
and the health, safety and welfare of the community. Said 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 area variance may have on the neighborhood or community.
F.
Action following public hearing. Following public
notice and hearing, the Zoning 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 powers of the officer
from whom the appeal is taken.
G.
Rehearing. A motion for the Zoning Board of Appeals
to hold a rehearing to review any order, decision or determination
of the Board not previously reheard may be made by any member of the
Board. A unanimous vote of all members of the Board then present is
required for such rehearing to occur. Such rehearing is subject to
the same notice provisions as an original hearing. Upon such rehearing
the Board may reverse, modify or annul its original order, decision
or determination upon the unanimous vote of all members then present,
provided the Board finds that any of the rights vested in persons
acting in good faith in reliance upon the reheard order, decision
or determination will not be prejudiced thereby.
H.
Denied and dismissed applications. No application
for a variance shall be considered by the Zoning Board of Appeals
within 18 months of the date of denial or dismissal of an appeal for
the same or similar relief respecting the same property unless there
appears on the face of the renewal application evidence of new or
changed circumstances regarding the property and indicating that a
rehearing of the matter is warranted.
I.
Time limit. The area variance and/or use variance
approval shall be void if construction or the use is not started within
one year of the date of Zoning Board of Appeals' approval, and completed
within two years of the date of such approval. A use variance shall
be deemed to have expired when the use has ceased for a period of
12 consecutive months.
J.
Applications for special use permit, site plan, and
subdivision approvals. Pursuant to § 274-a(3), 274-b(3),
and 277(3) of the New York State Town Law, nothing herein shall be
construed to prevent an applicant for special use permit, site plan,
or subdivision approval from submitting an application for variance
approval without first obtaining a decision or determination from
the Building Inspector or Zoning Administrator.
