A.
Creation. A Zoning Board of Appeals is hereby established
in accordance with § 267 of the Town Law of New York State.
B.
Composition. The Zoning Board of Appeals shall consist
of either three or five members consistent with § 267 of
the New York State Town Law.
[Amended 4-22-1996 by L.L. No. 1-1996]
C.
Appointment.
(1)
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]
(2)
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.
(3)
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).
(4)
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]
(a)
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;
(b)
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.
D.
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.
A.
Meetings.
(1)
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.
(2)
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.
B.
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.
C.
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.
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.
A.
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.
(1)
Interpretations.
(a)
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.
(b)
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.
(2)
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:
(a)
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;
(b)
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.
B.
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.
[1]
Editor's Note: The Schedule of Use Regulations is included at the end of this chapter.
C.
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:
(1)
The Zoning Board of Appeals does not have the power
to impose zoning restrictions on an application for appeals.
(2)
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.
(3)
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.
(4)
The Zoning Board of Appeals does not have the power
to permit a use specifically prohibited by this chapter.
D.
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.
A.
Appeal for administrative review or variance.
(1)
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.
(2)
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.
(3)
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.
(a)
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.
(b)
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.
B.
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:
(1)
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.
(3)
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.
(4)
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.
C.
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.
D.
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]
(1)
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.
(2)
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.
(3)
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.
(4)
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.
E.
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]
F.
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:
(1)
Use variances.
(a)
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:
[1]
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.
(b)
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.
(2)
Area variances.
(a)
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:
[1]
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.
(b)
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.
G.
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.
(1)
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.
(2)
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.
(3)
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.
(4)
Stay upon appeal. An appeal stays all proceedings
in furtherance of the action appealed from unless the Zoning Enforcement
Officer certifies to the Zoning Board of Appeals, after the notice
of appeal has been filed with the Zoning Enforcement Officer, that,
by reason of facts stated in the certificate, a stay would, in the
opinion of the Zoning Enforcement Officer, 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
Zoning Enforcement Officer and on due cause shown.
