Article VII Zoning Board of Appeals

The Town Board shall appoint the members of the Zoning Board of Appeals and shall designate a chairperson. In the absence of a chairperson, the Board of Appeals may designate a member to serve as acting chairperson. The term of office of members shall be for five years with membership staggered so that one position expires each year. No member shall take part in consideration of any matter for which the application was already filed with the Zoning Board of Appeals at the time of his/her appointment. Increasing or decreasing membership may be done by the Town Board consistent with § 267 of the New York State Town Law.

[Amended 4-22-1996 by L.L. No. 1-1996]

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

Vacancies on the Zoning Board of Appeals shall be filled by the Town Board. If vacancies shall occur otherwise than by the expiration of term, it shall be filled by appointment for the unexpired term of the vacant position(s).

The Town Board may, at its discretion, appoint for a term of the balance of any calendar year alternate members, whose role it will be to substitute for any member of the Zoning Board in the instance of absence or recusal for conflict of interest, subject to the following:

[Added 4-10-2006 by L.L. No. 8-2006]

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 absence or recusal for reason of conflict of interest;

Such alternate(s) shall be empaneled only when present at the time of initial application(s) and for subsequent consideration by the Board of applications which are the subject of the Board's action while empaneled;

(c)

In the event of empaneling to replace a member recused for reasons of conflict of interest, such alternate shall serve only for purpose of considering and deciding the specific application before the Board which caused the recusal.

(d)

The alternate member, when serving, shall have all the responsibilities of a regular member of the Zoning Board of Appeals.

Compensation. The Town Board may provide for compensation to be paid to Zoning Board of Appeals members, experts, clerks, a secretary and for other such expenses as may be necessary and proper to fulfill the duties of the Zoning Board of Appeals. There shall be no compensation for alternate members so appointed.

§ 200-58 General procedures.

Meetings.

The Zoning Board of Appeals shall hold one official monthly meeting and other meetings as required. All meetings of the Zoning Board of Appeals shall be held at the call of the Chairperson and at such other times that at least three members request, in writing, stating the purpose that a meeting be held. All meetings of such Board shall be open to the public.

Notification of all meetings of the Zoning Board of Appeals shall be published in the official Town newspaper, as set forth in § 200-60, Procedure before Zoning Board of Appeals. In addition, if a regularly scheduled meeting is canceled by the Zoning Board of Appeals, notification shall be placed in the newspaper, sent to all applicants on the agenda, and posted at the Town Hall at least five days prior to the date of the meeting.

Oaths. The Chairperson, or the Acting Chairperson, may administer oaths and compel the attendance of witnesses at the meetings of the Zoning Board of Appeals.

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 immediately be filed in the Office of the Town Clerk and shall be a public record.

§ 200-59 Powers and duties.

The Zoning Board of Appeals shall have the powers and duties prescribed by New York State statutes, Town Law and duties outlined in this chapter.

Appellate jurisdiction. The appellate powers of the Zoning Board of Appeals, as outlined by Town Law, include appeals seeking interpretations and appeals seeking variances from this chapter or from determinations/decisions made by the Zoning Enforcement Officer charged with the enforcement of this chapter.

Interpretations.

The Zoning Board of Appeals shall review, hear and decide appeals from any order, requirement, decision or determination made by the Zoning Enforcement Officer of the Town of Milan. The appeals seeking interpretations can be made by any aggrieved person alleging that there is an error in any order, requirement, decision or determination made by the Building Inspector or Zoning Enforcement Officer involving the interpretation of any provision of this chapter, or on request by any officer, department or board of the Town of Milan.

The Zoning Board of Appeals shall, upon appeal from a decision by an administrative official or board member, decide any question involving the interpretation of any provision of this chapter, including the interpretation of zoning definitions or determination of the exact location of any zoning district boundary if there is uncertainty with respect thereto.

Variances. The Zoning Board of Appeals shall hear and decide appeals seeking variances (use or area variance) from the strict application of any of the requirements of this chapter in the case of exceptionally irregular, narrow, shallow or steep lots or other exceptional physical conditions whereby such strict application would result in practical difficulty or unnecessary hardship that would deprive the owner of the reasonable use of the land or building involved. No variance in the strict application of any provision of this chapter shall be granted by the Zoning Board of Appeals unless it finds:

That, for reasons set forth in the findings of the Zoning Board of Appeals, the strict application of the provisions of this chapter would deprive the applicant of the reasonable use of the land or building for any permitted use in the zoning district in which the applicant's land or building is located; that the granting of the variance is necessary for the reasonable use of such property; and that the variance granted by the Zoning Board of Appeals is the minimum variance that will accomplish this purpose;

There are special circumstances or conditions applying to the land or building for which the variance is sought, which circumstances or conditions are unique to such land or buildings and do not apply generally to land or buildings in the vicinity or neighborhood and have not resulted from any act of the applicant subsequent to the adoption of this chapter; and

(c)

The granting of the variance will be in harmony with the general purpose of this chapter, will not be injurious to the neighborhood and will not alter the essential character of the locality.

Original jurisdiction. The Town Board shall specify all powers of original jurisdiction that it grants to the Zoning Board of Appeals. One such power of original jurisdiction is the review and approval of certain special use permits, as outlined in Table A, Schedule of Use Regulations,[1] procedure set forth in Article VIII, Special Use Permits.

Editor's Note: The Schedule of Use Regulations is included at the end of this chapter.

Limitations of powers and duties. The Zoning Board of Appeals is an administrative body that has authority to decide upon appeals for interpretations, appeals for variances and review of certain special use permit applications. However, the powers of the Zoning Board of Appeals are limited by the following:

The Zoning Board of Appeals does not have the power to impose zoning restrictions on an application for appeals.

The Zoning Board of Appeals does not have the power to set aside the Zoning Law on the basis that its terms are arbitrary, unreasonable or unconstitutional.

The Zoning Board of Appeals does not have the power to amend this chapter or change the boundaries of the zoning districts in which they are applicable.

§ 200-60 Procedure before Zoning Board of Appeals.

The Zoning Board of Appeals does not have the power to permit a use specifically prohibited by this chapter.

SEQRA. The Zoning Board of Appeals shall comply with the provisions of the State Environmental Quality Review Act (SEQRA) under Article 8 of the State Environmental Conservation Law and its implementing regulations as codified in Part 617 of Title 6 of the New York Codes, Rules and Regulations.

The Zoning Board of Appeals shall act in strict accordance with the procedure specified by Town Law and this chapter.

Appeal for administrative review or variance.

An appeal to the Zoning Board of Appeals for administrative review may be made by any person, firm or corporation aggrieved or by any governmental officer, department, board or bureau affected by any decision of the Zoning Enforcement Officer, based in whole or in part upon the provisions of this chapter. Such appeal shall be made by filing, in writing, with the Zoning Enforcement Officer, a notice of appeal specifying the grounds thereof and the relief sought. The Zoning Enforcement Officer shall forthwith transmit all papers constituting the record upon which the action appealed from was taken to the Zoning Board of Appeals. The cost of sending material or publishing any notices relating to such appeal shall be paid for by the applicant prior to the public hearing on the appeal.

Application for an appeal shall be made by the applicant within 60 days from the date upon which the notice of refusal of building permit or refusal of certificate of occupancy or other decisions is mailed by the Zoning Enforcement Officer to the applicant. Failure to file notice of appeal within 60 days shall constitute a waiver of the right to appeal.

An appeal for a variance may be made by an applicant seeking an area or use variance for their property. However, the owner of the property involved with the appeal must be the party that applies for the area or use variance.

Area variance. In the case of an area variance, the applicant would be seeking modification of dimensional standards, such as yard requirements, setback lines, lot coverage, frontage requirements or density regulations so that their property can be utilized for one of the uses permitted by this chapter.

Use variance. In the case of a use variance, the applicant would be requesting utilization of buildings and/or land for a use that is not specifically permitted by this chapter, as set forth within the applicable zoning district.

(c)

The applicant for a variance must prove to the Zoning Board of Appeals that there is unnecessary hardship or practical difficulty involved with the applicant's property, resulting from the strict application of the conditions, standards and regulations of this chapter that necessitates an appeal for an area or use variance.

Application materials. Requests for appeals seeking an interpretation or seeking a use or area variance shall be submitted to the Zoning Enforcement Officer and shall include the following:

A completed application form (including the name, address and other information about the applicant), obtained from the Zoning Enforcement Officer or Secretary for the Zoning Board of Appeals.

Appropriate fees as specified on the Town's fee schedule, approved and amended by the Town Board.[1]

Editor's Note: See Ch. A208, Fees.

A short or full environmental assessment form, as required by the State Environmental Quality Review Act (SEQR), Article 8 of the Environmental Conservation Law and Part 617 of the New York Codes, Rules and Regulations.

A description of the specific provision of the section of this chapter involved in the appeal and shall set forth exactly the decision from which the appeal for administrative review is being made or the interpretation is claimed. If an appeal for a variance is being applied for, the applicant must specify whether an area variance (relief from dimensional or other area requirements) or use variance (appeal to allow property to be used for a type of land use that is not specifically permitted or prohibited) is being sought, and the grounds on which the variance is claimed.

(5)

Other information deemed necessary by the Zoning Enforcement Officer or Zoning Board of Appeals in order to adequately review the application.

Completeness. Upon receipt of the application materials for an appeal or variance request, the Zoning Enforcement Officer shall determine whether the applicant has submitted all of the necessary application criteria and information. Once the Zoning Enforcement Officer has determined that the application is complete, the application material shall immediately be sent to the Zoning Board of Appeals for their review.

Variance referral. The Zoning Board of Appeals shall have the authority to refer any application for use and area variances, as deemed necessary, to the Planning Board for a report in accordance with § 271 of Town Law.

[Amended 4-22-1996 by L.L. No. 1-1996; 6-11-2003 by L.L. No. 1-2003]

The Zoning Board of Appeals shall submit a complete copy of the application for an area or use variance to the Planning Board, along with a copy of the notice of public hearing on said application.

The Planning Board has 30 days to submit a report on the application, unless an extension is requested by the Planning Board. The report from the Planning Board must be read in its entirety and entered into the minutes at the meeting at which the appeal for variance is being considered by the Zoning Board of Appeals. If the Planning Board fails to respond to the variance application within 30 days of the referral or request an extension, the Planning Board shall be deemed to have waived any rights concerning the matter being referred, and the Zoning Board of Appeals shall proceed with its review of the application.

In any case where the Zoning Board of Appeals acts contrary to the recommendations of the Planning Board regarding a specific application, the Zoning Board of Appeals shall include in its minutes a resolution setting forth the reasons for such contrary action.

Applications for variances shall be referred to the Dutchess County Planning Department prior to the public hearing, in compliance with Article X of this chapter and applicable state regulations.

(5)

The Zoning Board of Appeals shall have the authority to call upon any agency, department, consultant or employee of the Town for such assistance as shall be deemed necessary, as authorized by the Milan Town Board, for the review of applications.

Public hearing and notice. The Zoning Board of Appeals shall hold a public hearing within 45 days upon receipt of any appeal or other matter referred to it and give public notice thereof by the publication in the official Town newspaper of such hearing at least five days prior to the date of the public hearing. The Zoning Board of Appeals shall also mail the notices by certified mail, return receipt requested, at least 10 days prior to the public hearing, to the parties involved and all other agencies as prescribed by Town Law. Notice of the public hearing shall also be sent by certified mail, return receipt requested, at least five days prior to the date of the hearing, to all property owners residing within 200 feet of the location of the property for which the appeal is being applied for. All costs involved with publication of the public hearing notices in the newspaper and certified mailing shall be paid for by the applicant.

[Amended 4-22-1996 by L.L. No. 1-1996]

Criteria for variances. In the review and consideration of applications for variances, the Zoning Board of Appeals shall take into consideration the following provisions, as specified in § 267-b of the Town Law:

Use variances.

No use 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 Zoning Board of Appeals that:

Under applicable zoning regulations the applicant is deprived of all economic use or benefit from the property in question, which deprivation must be established 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.

The Zoning 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 proven by the applicant and at the same time preserve and protect the character of the neighborhood, as well as the health, safety and welfare of the community.

Area variances.

The Zoning Board of Appeals shall consider in making its determination 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 this determination, the Board shall also consider 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]

The benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;

[3]

The requested area variance is substantial;

[4]

The proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and

[5]

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.

The Zoning Board of Appeals, in 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 property and neighborhood, as well as the health, safety and welfare of the community.

Zoning Board of Appeals decisions. The Zoning Board of Appeals shall take final action, either to grant or deny the appeal, within 62 days of completion of the public hearing. The time frame within which the Zoning Board of Appeals must render its decision may be extended by mutual consent of the Board and the applicant. Every decision of the Zoning Board of Appeals shall be made by resolution by a majority of the Board members and shall contain a full record of the findings of the Zoning Board of Appeals in the particular application.

Imposition of conditions. The Zoning 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 or the period of time such variance shall be in effect. Such conditions shall comply with and be consistent with the intent of this chapter and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the property, neighborhood or community.

Scope of appeal. If the variance or appeal is granted by the Zoning Board of Appeals, the necessary permits shall be subject to the terms of this section of this chapter. If the applicant fails to comply with these provisions, it shall be conclusively presumed that the applicant for such appeal waived or abandoned the application for said appeal, and such approval granted to the applicant shall be deemed automatically rescinded by the Zoning Board of Appeals.

The Zoning Board of Appeals shall notify the Town Clerk, applicant, Zoning Enforcement Officer and other involved parties within five business days of the decision to grant or deny applications for appeals and variances.