[Amended 1-4-2005 by L.L. No. 1-2005]
There shall be a Board of Appeals pursuant to
the provisions of § 267 of the Town Law, comprised of seven
members, five of whom shall be regular members and two alternate members.
Alternate members of the Zoning Board of Appeals shall have all duties
and responsibilities set forth in Town Law § 267, Subdivision
11(a), (b) and (c). The term of office of each alternate shall be
four years commencing January 1, 2005. In the event an alternate position
shall become vacant for any reason a successor shall be appointed
to fill the vacancy until the next January 1, at which time the alternate
member shall commence his or her four-year term.
The Board of Appeals shall have all the powers
and duties prescribed by law 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.
Interpretation. On appeal from an order, requirement,
decision or determination made by an administrative official or on
request by any official, board or agency of the Town, to decide any
of the following questions:
B.
Variances.
(1)
To authorize, upon appeal in specific cases, such
variance from the terms of this chapter as will not be contrary to
the public interest where, owing to exceptional and extraordinary
circumstances, there are unnecessary hardships in the way of carrying
out the strict letter of this chapter, subject to terms and conditions
to be fixed by the Board of Appeals; provided, however, that no such
variance shall be granted unless said Board finds:
(a)
That there are physical conditions, such as
in the case of an exceptionally irregular, narrow, shallow or steep
lot, fully described in the findings of said Board, applying to the
land or building for which the variance is sought, which conditions
are peculiar to such land or buildings and have not resulted from
any act of the applicant or any prior owner.
(b)
That, for reasons fully set forth in the findings
of said Board, the aforesaid circumstances or conditions are such
that the strict application of the provisions of this chapter would
deprive the applicant of the reasonable use of such land or building
and the granting of the variance is necessary for the reasonable use
of the land or building, and that the variance as granted by said
Board is the minimum variance that will accomplish this purpose.
(c)
That the granting of the variance under such
conditions as said Board may deem necessary or desirable to apply
will be in harmony with the general purpose and intent of this chapter,
will not represent a radical departure therefrom, will not be injurious
to the neighborhood, will not change the character thereof and will
not be otherwise detrimental to the public welfare.
(2)
The needs or desires of a particular owner or tenant
or of a particular prospective owner or tenant shall not, either alone
or in conjunction with other factors, afford any basis for the granting
of a variance. The fact that the improvements already existing at
the time of the application are old, obsolete, outmoded or in disrepair
or the fact that the property is then unimproved shall not be deemed
to make the plight of the property unique or to contribute thereto.
(3)
Where said Board finds the zoning classification of
a particular property to be conducive to the deprivation of the reasonable
use of the land or buildings and where said Board finds the same condition
to apply generally to other land or buildings in the same neighborhood
or zoning district, said Board shall call this condition to the attention
of the Planning Board.
(4)
In all cases where the Board of Appeals grants a variance
from the strict application of the requirements of this chapter, it
shall be the duty of such Board to attach such conditions and safeguards
as may be required in order that the result of its action may be as
nearly as possible in accordance with the spirit and intent of this
chapter.
The powers and duties of the Board of Appeals
shall be exercised in accordance with the following procedure:
A.
The Board of Appeals shall not decide upon any appeal
for a variance or interpretation of this chapter without first holding
a public hearing, notice of which hearing and of the substance of
the appeal or application shall be given by publication in the official
newspaper of the Town at least five days before the date of such hearing.
In addition to such published notice, the Board of Appeals shall cause
such notice to be mailed at least five days before the hearing to
all owners of property which lie adjacent to that owned by the applicant
in the immediate area and to all other owners as the Board of Appeals
may deem advisable.
(1)
The names of said owners shall be taken as they appear
on the last completed tax roll of the Town.
(2)
Even though due notice shall have been published as
above provided and there shall have been complete compliance with
the remaining provisions of this section, the failure to give notice
in exact conformance herewith shall be deemed to invalidate action
taken by the Board of Appeals in connection with the granting of any
appeal or variance.
B.
All appeals and applications made to the Board of Appeals shall be in writing, on forms prescribed by said Board, and shall be accompanied by a fee of not less than the actual and necessary costs of advertising and holding a public hearing. The Board of Appeals may, at its discretion, return to the applicant part or all of the fee paid by him in the event that his appeal under § 98-37A is partially or wholly successful. The fee filed in connection with applications under § 98-37B shall not be returnable regardless of disposition of the ease by the Board. A review fee of $100 shall be paid for an interpretation or a dimensional variance, and a fee of $300 shall be paid for a use variance. The costs of publication and certified mail shall be paid for by the applicant.
C.
Each appeal or application shall fully set forth the
circumstances of the case. Every appeal or application shall refer
to the specific provision of the chapter involved and shall exactly
set forth, as the case may be, the interpretation that is claimed
or the details of the variance that is applied for and the grounds
on which it is claimed that the same should be granted.
D.
Notice of hearing to state, county or other officials.
(1)
Should any appeal involve either of the two following
conditions, the Secretary of the Board of Appeals shall transmit to
the designated office or official a copy of the official notice of
the public hearing not later than 10 days prior to the date of the
hearing.
(a)
Any change in the boundaries of any district,
which change would occur within a distance of 500 feet of any village,
town or county or any boundary of a state park or parkway.
(2)
The designated official for counties shall be the
Clerk of the County Legislature. In villages and Towns, the designated
official shall be the Clerk of the municipality. In the case of state
parks or parkways, the designated office shall be the Palisades Interstate
Park Commission.
E.
Prior to the date of any public hearing, the Secretary
of the Board of Appeals shall transmit to the Chairman of the Planning
Board a copy of any appeal or application, together with a copy of
the notice of such hearing The Planning Board may submit to the Board
of Appeals an advisory opinion on said appeal or application at any
time prior to the rendering of a decision by the Board of Appeals.
F.
Should any action by the Board of Appeals involve any of the areas specified in Article VIII, § 98-39E(1)(a) through (f), then the matter shall be referred, prior to final action by the Board of Appeals, to the Orange County Planning Department in accordance with §§ 239-1 and 239-m of Article 12-B of the General Municipal Law.
[Amended 3-6-2007 by L.L. No. 4-2007]
G.
Every decision of the Board of Appeals shall be recorded in accordance with standard forms adopted by the Board and shall fully set forth the circumstances of the case and shall contain a full record of the findings on which the decision is based. Every decision of said Board shall be by resolution, and each such resolution, together with all documents pertaining thereto, shall be filed in the office of the Town Clerk by case number under one of the following headings: "interpretation" or "variances." Regarding its decision in each case, the Board of Appeals shall notify the Building Inspector, Town Board, Town Planning Board and the Municipal Clerk of any affected municipality given notice of hearing as set forth in Subsection D of this section.
H.
All the provisions of this chapter relating to the
Board of Appeals shall be strictly construed. Said Board, as a body
of jurisdiction, shall act in full conformity with all provisions
of law and of this chapter and in strict compliance with all limitations
contained therein.
I.
Unless construction is commenced and diligently pursued
within six months of the date of the granting of a variance, such
variance shall become null and void.
