[Amended 12-11-2006 by L.L. No. 4-2006]
A.
There shall be a Town Zoning Board of Appeals consisting
of five members appointed by the Town Board in accordance with § 267
of the state Town Law. All appointments and reappointments shall be
made such that the terms of no two members shall expire at the end
of the same calendar year. Appointments and reappointments, and the
terms thereof, shall be made by resolution of the Town Board in a
manner determined by the Town Board to accomplish the purpose of this
chapter. Any person appointed to fill an unexpired term of a member
shall be entitled to serve for the remainder of the unexpired term.
Any member may be removed by the Town Board for cause and after opportunity
for hearing. The Chairman of the Zoning Board of Appeals shall be
designated by the Town Board or, on failure to do so, shall be elected
by its own members.
B.
The Town Board may require members to complete training
and continuing education courses in accordance with any local requirements
for the training of such members. Such requirements may be established
by resolution of the Town Board. Failure to complete any required
training or continuing education courses shall be just cause for removal
of a member.
The Zoning Board of Appeals (hereinafter called
"Board of Appeals") shall have all the powers and duties prescribed
by statute and by this chapter, which are more particularly specified
as follows, provided that none of the following provisions shall be
deemed to limit any power of the Board that is conferred by law:
A.
Appeals. The Board of Appeals shall hear and decide
appeals from and review any order, requirement, decision or determination
of the Building Inspector, when acting in his/her capacity as Zoning
Enforcement Officer, or such other official charged with enforcement
of this chapter. The Board of Appeals may not waive the requirements
for site development plan application as required in any part of this
chapter.
B.
Interpretation. On an appeal from an order, requirement,
decision or determination made by an administrative official or by
the Building Inspector, the Board of Appeals may decide any of the
following questions:
C.
Variances. On appeal from an order, requirement, decision,
interpretation or determination made by the Building Inspector, acting
in his/her capacity as Zoning Enforcement Officer, or on referral
of an applicant to the Board of Appeals by an approving agency acting
pursuant to this chapter, the Board of Appeals is authorized, after
public notice and hearing, to vary or modify the strict letter of
this chapter, where its literal interpretation would cause practical
difficulties or unnecessary hardships, as defined in this section,
in such manner as to observe the spirit of this chapter, secure public
safety and welfare and to do substantial justice. Variances, once
granted, shall be construed to run with the particular site or lot
and not with the applicant. Any such appeal shall be taken within
60 days after the date of the filing of the order, requirement, decision,
interpretation or determination of the Building Inspector by filing
an application in the office of the Zoning Board of Appeals and with
the Building Inspector.
(1)
Bulk variances. Where, because of practical difficulty,
an applicant requests a variance of the bulk requirements of this
chapter, the Board of Appeals may grant a variance in the application
of the provisions of this chapter in the specific case, provided that,
as a condition to the grant of any such variance, the Board of Appeals
shall make a specific finding that the application of the requirements
of this chapter to the land in question creates such practical difficulty.
In making this determination, the Board of Appeals shall make the
following findings:
(a)
That the variance is not substantial in relation
to the requirement and to other factors set forth below.
(b)
That the effect of any increased population
density which may thus be produced upon available services and facilities
is not significant.
(c)
That a substantial change in the character of
the neighborhood or a substantial detriment to adjoining properties
will not be created.
(d)
That the difficulty cannot be alleviated by
some method feasible for the applicant to pursue other than a variance
or that a lesser variance cannot alleviate the difficulty.
(e)
That, in view of the manner in which the difficulty
arose and considering all of the above factors, the interests of justice
will be served by allowing the variance.
(f)
That the variance would not cause adverse aesthetic,
environmental or ecological impacts on the property or on surrounding
areas and would not harm the general health, safety or welfare.
(g)
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 bulk variance.
[Added 1-25-1999 by L.L. No. 1-1999]
(2)
Use variances. To alleviate unnecessary hardship as
hereafter described, the Board of Appeals may grant a variance of
the application of the provisions of this chapter in a specific case
to allow a use otherwise prohibited in the zoning district in which
the property is located, provided that, as a condition to the grant
of any such variance, the Board of Appeals shall make the following
findings:
(a)
After considering all permitted uses, specially
permitted uses and conditional uses allowed in the zoning district
and based on documented dollars-and-cents evidence submitted in the
record by the applicant that the property in question cannot reasonably
be used or yield a reasonable return if used only for a purpose allowed
in that district.
(b)
That the plight of the owner is due to unique
circumstances affecting the property which is the subject of the application
and not to general conditions in the neighborhood or to personal hardship,
plight or desires of the property owners.
(c)
That the use to be authorized by the variance
will not alter the essential character of the locality.
(d)
That the use to be authorized by the variance
is in reasonable harmony with the intent of this chapter.
(e)
That the unnecessary hardship claimed as a ground
for the variance has not been created by the owner or by a predecessor
in title; purchase of the lands subject to the restriction sought
to be varied may constitute a self-created hardship.
(f)
That within the intent and purpose of this chapter,
the variance, if granted, is the minimum variance necessary to afford
relief. To this end, the Board of Appeals may permit a lesser variance
than that applied for.
(3)
Burden of proof. The applicant shall prove that strict
application of the zoning law creates practical difficulty or unnecessary
hardship. In the event that said practical difficulty or unnecessary
hardship is proven, the Board of Appeals shall show that the subject
zoning provision serves a legitimate public purpose. The burden shall
then shift to the applicant to demonstrate that granting the variance
will not adversely affect the public health, safety or welfare.
D.
Extensions across district boundaries. In appropriate
cases where a lot lies within two districts, the Board of Appeals
may permit the extension of existing or proposed permitted accessory
off-street parking spaces across a district boundary, under such conditions
as will safeguard the character of the district into which such use
is extended. However, no such extension shall exceed 75 feet, measured
at right angles to such district boundary. The power under this subsection
shall not permit the moving of the zoning district line but only the
extension of the accessory off-street parking space.
F.
The Board of Appeals shall hear and decide any other
permit application as authorized by local law.
G.
The Board of Appeals, after a public hearing, shall
have the power to direct the Building Inspector to issue a building
permit or certificate of occupancy, as the case may be, subject to
the other applicable laws, codes, rules and regulations.
A.
The Board of Appeals may adopt rules and regulations
with respect to procedure before it and with respect to any subject
matter over which it has jurisdiction. Such regulations shall include
provisions for conduct of meetings, notification of parties, form
of applications and filing of decisions.
B.
Every decision of the Board of Appeals shall be recorded
in accordance with a standard format adopted by such Board, shall
fully set forth the circumstances of the case and shall contain a
record of the finding on which the decision is based. Every decision
of said Board of Appeals shall be by resolution, and each such resolution
shall be filed in the offices of the Town Clerk and Building Inspector
by case number.
C.
All appeals and applications made to the Board of
Appeals shall be in writing and shall be accompanied by a fee as determined
in the Standard Schedule of Fees, as may be adopted from time to time
by resolution of the Town Board.[1]
[1]
Editor's Note: The Standard Schedule of Fees
is on file in the Town offices.
D.
No decision by the Board of Appeals shall be made until after a public
hearing. Written notice of said hearing shall be published in the
official newspaper and posted at the Town Hall, and mailed (at the
applicant's expense) to all known owners of property located within
500 feet of each boundary of the subject property at least five days
prior to the date of the hearing. All appeals and applications made
to the Board of Appeals in connection with property located in the
Mt. Lodge Park area will be subject to the notice requirements of
this provision, except such mailings are limited to property located
within 200 feet of each boundary of the subject property. Such other
notice, as required by Article 12-B of the General Municipal Law,
Article 8 of the Environmental Conservation Law and other applicable
laws, shall also be given. The public hearing shall be held within
62 days after the Board's first regular meeting following receipt
of the application, and the Board shall make a decision within 62
days after close of the public hearing.
[Amended 7-9-2007 by L.L.
No. 4-2007; 8-25-2015 by L.L. No. 5-2015]
(1)
The applicant shall perform the following procedure for mailing notice
of a public hearing:
(a)
All applicants shall obtain a certified list of names and addresses
of property owners which lie within 500 feet of any boundary line
of the property for which relief is sought (except such mailings are
limited to properties located within 200 feet of each boundary line
for property located in the Mt. Lodge Park area) that are required
to be notified of a specific action.
(b)
The ZBA Clerk shall prepare the legal notice to be mailed to
the property owners and shall present the legal notice to the applicant
for mailing in accordance with the procedures set forth herein.
(c)
The applicant shall place the name and address on an appropriate-size
mailing envelope, said address to be in the same form as on the Assessor's
records. In the event that two or more parcels have identical ownership,
only one notice shall be required to be mailed. The applicant shall
place the legal notice in the envelope and affix the proper postage
for first-class mail on the envelope and seal the same.
(d)
The sealed, addressed, stamped envelopes shall be brought to
the Town Hall and delivered to the ZBA Clerk at least ten (10) days
prior to the hearing date. The Clerk shall verify the names and addresses
and compare the same to the certified mailing list supplied by the
Assessor and shall thereafter deposit said envelopes in a United States
postal depository within the Town of Blooming Grove. The Clerk shall
execute an affidavit of mailing setting forth that said Clerk has
compared all the envelopes addressed to the certified list supplied
by the Assessor and also finds that the appropriate number of envelopes
have been prepared. The affidavit shall also set forth that the Clerk
has personally deposited the envelopes in a United States postal depository
within the Town of Blooming Grove and set forth the date upon which
said deposit was made.
(2)
The Town Board may, from time to time, by resolution, amend the mailing
procedure set forth above.
Any approval of a variance or permit granted
by the Board of Appeals shall expire if application for a building
permit or certificate of occupancy pursuant to such approval is not
made within six months of the date of approval or if construction
or occupancy pursuant thereto is not completed within 18 months of
the date of the approval. The date of approval shall be the date that
the Zoning Board's decision is filed in the Town Clerk's office. Compliance
with conditions attached to an approval shall not affect the date
of approval. Extensions of such time periods may be granted by the
Zoning Board of Appeals upon application of the property owner prior
to the date of expiration. Any approval which has not been so acted
upon or extended shall be void.
Any person aggrieved by any decision of the
Board of Appeals hereunder may, within 30 days of the filing of the
decision with the office of the Town Clerk, seek judicial review pursuant
to Article 78 of the Civil Practice Law and Rules.
