A.
Creation. A Zoning Board of Appeals, hereafter referred
to as the Board of Appeals, is continued as established by the Board
of Trustees pursuant to § 7-712 of the Village Law.
B.
Membership. The Board of Appeals shall consist of
five members. Each member shall be appointed for a term of five years
as provided in § 7-712 of the Village Law. Vacancies shall
be filled by appointment for the unexpired term of the member whose
place has become vacant.
C.
Organization.
(1)
Chairman and Deputy Chairman. The Chairman and a Deputy
Chairman shall be appointed as provided in Village Law § 7-712.
(2)
Secretary. The Mayor may authorize the Board of Appeals
to appoint a secretary to perform the duties assigned to such secretary
by this chapter and by the Village Law.
(3)
Rules of procedure. The Board of Appeals shall, consistent
with Village Law, prescribe its own rules, form and procedure, and
all its deliberations, resolutions and orders shall be in accordance
therewith.
(4)
Meetings. The Board of Appeals shall meet at the call
of the Chairman and at such other times as the Board of Appeals may
determine.
D.
Alternate members.
[Added 11-7-2007 by L.L. No. 11-2007]
(1)
The Village Mayor may appoint not more than two alternate
members of the Board of Appeals, subject to the approval of the Board
of Trustees, for terms established by the Village Board of Trustees.
Each such alternate member shall attend meetings of the Board of Appeals
and participate in its deliberations but shall vote only in the event
that a member of the Board of Appeals is absent or otherwise unable
to act with respect to a particular matter. When acting pursuant to
the Board of Appeals authority provided hereby, such alternate member
shall have all of the rights and privileges of a member of the Board
of Appeals. The term of appointment of said alternates shall be as
authorized by the Village Board under a duly adopted resolution.
(2)
The Chairperson of the Board of Appeals may designate
an alternate member to substitute for a member when such member is
unable to participate because of a conflict of interest on an application
or matter before the Board. When so designated, the alternate member
shall possess all the powers and responsibilities of such member of
the Board. Such designation shall be entered into the minutes of the
initial Board of Appeals meeting at which the substitution is made.
(3)
All provisions of the Village Code relating to Board
of Appeals member training and continuing education, attendance, conflict
of interest, compensation, eligibility, vacancy in office, removal,
and service on other boards shall also apply to alternate members.
The Board of Appeals shall have all the powers
and duties prescribed or permitted by law and the provisions of this
chapter, which are more particularly specified below; provided, however,
that none of the following provisions shall be deemed to limit any
power conferred upon the Board of Appeals by law or by other provisions
of this chapter.
A.
Action of the Board of Appeals. In exercising its
powers, the Board of Appeals may reverse or affirm wholly or partly,
or may modify the order, requirement, decision or determination appealed
from, and may make such order, requirement, decision or determination
as in its judgment ought to be made in accordance with the provisions
of this chapter and pursuant to law.
B.
Interpretation. The Board of Appeals shall, upon appeal
from any decision, order or requirement, by an administrative official
or body, or upon the request of any official or Board of the Village,
decide any question involving the interpretation of any provision
of this chapter, including determination of the exact location of
any zoning district boundaries if there is uncertainty with respect
thereto.
C.
Appeals. The Board of Appeals shall hear and decide
appeals where it is alleged that error or misinterpretation in any
order, requirement, decision, grant or refusal was made by the Building
Inspector or other administrative official in the carrying out or
enforcement of the provisions of this chapter or any rule or regulation
pursuant thereto.
D.
Variances. The Board of Appeals may, subject to the procedures required by Village Law and by § 212-59 of this chapter and in accordance with the criteria established in § 212-60, vary or modify the application of any of the requirements of this chapter as provided in Subdivision 2 of § 7-712 of the Village Law.
A.
General procedure. The Board of Appeals shall act
in strict accordance with the procedures established by law and by
this chapter.
(1)
Written submission required. All appeals and applications
shall be made by the Board of Appeals in writing, on forms prescribed
by the Board of Appeals. Such submissions shall be filed with the
Building Inspector and the Secretary of the Board of Appeals.
(2)
Contents of submission. Each appeal or application
shall refer to the specific provision of this chapter involved, and
shall exactly set forth the interpretation that is claimed, or the
details of the variance that is sought and the grounds on which it
is claimed.
(3)
Filing fees.
[Amended 1-24-2001 by L.L. No. 1-2001]
(a)
The filing of an application or appeal shall
be accompanied by the payment of a filing fee by the applicant or
appellant determined as follows:
[2]
Use variance: set annually by resolution of the Board of Trustees.
[Amended 10-22-2014 by L.L. No. 13-2014]
[3]
Interpretation: set annually by resolution of the Board of Trustees.
[Amended 10-22-2014 by L.L. No. 13-2014]
[4]
Appeal of Building Inspector's decision: set annually by resolution
of the Board of Trustees.
[Amended 10-22-2014 by L.L. No. 13-2014]
[5]
Preliminary discussion: set annually by resolution of the Board
of Trustees. (This fee shall be applied to the variance application.)
[Amended 10-22-2014 by L.L. No. 13-2014]
[6]
In addition to the fees specified in Subsection A(3)(a)[1] through [5] above, the applicant shall be responsible for the cost of services rendered to the Zoning Board of Appeals by the Zoning Board attorney, Village engineers, consultants and agencies for the analysis and review of the plans and specifications of the applicant and for advice concerning all legal, engineering and administrative issues presented by the application pursuant to § 212-66 herein.
[Amended 12-15-2010 by L.L. No. 1-2011]
(b)
Upon payment of such fee, the Building Inspector
shall transmit to the Board of Appeals all papers constituting the
record in the case.
(4)
Planning Board referral.[1] On such matters as have not previously been reviewed by
the Planning Board, the Board of Appeals shall, at least 30 days before
the required public hearing of any appeal or application, transmit
a copy of such appeal or application to the Planning Board, together
with a copy of the notice of such hearing so that the Planning Board
may review and submit a report of its opinion prior to the date of
such hearing. Planning Board failure to submit such report shall be
considered an approving opinion in the application or appeal.
[1]
See also General Municipal Law §§ 239-1
and 239-m; certain matters must also be referred to the County Planning
Board.
(5)
Public hearing and notice. The Board of Appeals shall
set a date for public hearing upon receipt of an application or appeal,
such public hearing to occur not more than 60 days after receipt of
such application or appeal. Personal notice of such hearing shall
be given to all parties entitled by law to such notice at least 10
days prior to the public hearing.
[Amended 8-25-2010 by L.L. No. 6-2010]
(a)
Public notice by means of advertisement in a newspaper of general
circulation shall also be given at least 10 days prior to such hearing.
(b)
Mailing to adjoining property owners. The applicant shall mail notice
of the hearing, at least 10 days prior to the date of the public hearing,
to the owners of all neighboring real property. Such neighboring property
shall be defined as those lots having boundaries contiguous with the
boundaries of the plot, piece or parcel of land to which the application
or appeal applies and to all other owners of real property which lie
within 200 feet of such boundaries.
(c)
Mailing by applicant. Such notice shall be mailed by the applicant,
at his or her sole cost and expense, by depositing a true copy of
such notice in a post-paid, properly addressed envelope, in a post
office or other official depository under the exclusive care and custody
of the United States Postal Service within the State of New York.
The applicant shall, at or prior to the date of the public hearing,
file with the secretary of the board an affidavit of mailing, as proof
of compliance with the foregoing notification procedure.
(d)
Property signage. The Planning Board shall require that, at least
10 days prior to the initial public hearing, the owner or applicant
post a sign giving notice of the public hearing within 25 feet of
each property line having frontage on a road or highway, including
the road or highway providing access to the property, so that it is
clearly visible to the public from such road or highway. The size
of the sign and text shall be approved by the Village Board or such
Village official as the Board may designate. The notice shall include
a statement that an application for a variance affecting the property
has been made and such other information as the Village Board may
require. The applicant shall submit a photograph and affidavit, or
other satisfactory evidence, at the public hearing that the required
signage was duly erected and maintained in good condition until the
hearing, and shall ensure that the sign is maintained until after
the hearing is closed or the application is withdrawn, whichever occurs
first. It shall be a violation of this chapter for any person, except
the applicant or duly authorized Village official, to remove, deface
or tamper with duly erected signage during the period it is required
by this section to be maintained. The Board of Appeals may waive the
requirement that signage be erected when it finds that the benefit
of such notice would be disproportionate to the cost imposed on the
applicant. In such case, a waiver shall be granted by a favorable
vote of a majority of its members, and the Board shall set forth the
basis on which it determined the waiver appropriate.
(6)
Adjournment of public hearing. Upon the day for hearing
any application or appeal, the Board of Appeals may adjourn such hearing
for a reasonable period for the following purposes:
(a)
Additional notice. To cause such further notice
as it deems proper to be served upon such other property owners as
it decides may be interested in said application or appeal.
(b)
Additional information. To obtain such additional
information as it decides may be necessary to make the findings required
by law and this chapter as a basis for its final decision. The Board
of Appeals may instruct the applicant or appellant or the Planning
Board to submit such additional information.
(7)
Representation of parties. The applicant or appellant
shall appear personally at the public hearing, or by agent, or by
attorney.
B.
Procedure for appeals. In addition to the procedural rules set forth in Subsection A of this section, the following rules shall apply in all appeals:
(1)
Time of appeal. Notice of appeal shall be filed with
the Building Inspector and the secretary of the Board of Appeals within
30 days of the date of the action appealed from, specifying the grounds
thereof.
(2)
Effect of appeal. An appeal stays all proceedings
in furtherance of the action appealed from, unless the Building Inspector
certifies to the Board of Appeals, after notice of appeal shall have
been filed with him, that by reason of facts stated in the certificate,
a stay would, in his 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 Board of Appeals or
by a court of record on application, on notice to the Building Inspector
and due cause shown.
C.
Decisions.
(1)
Time. The Board of Appeals shall render its decision
within 62 days of the conclusion of the public hearing on the application
or appeal, such decision to be filed within seven days in the office
of the Village Clerk.
(2)
Form of decision. Every decision of the Board of Appeals
shall be by resolution, such resolution shall contain a full record
of the findings of the Board in the particular case. The vote of each
member shall be recorded by name.
(3)
Scope of decision. In its decision, the 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 Building Inspector. If the action by the Board of Appeals
is to reverse the action of the Building Inspector in whole, the filing
fee shall be refunded to the appellant. However, if the relief sought
by the petitioner is a variance, the filing fee shall not be refunded
regardless of the decision of the Board of Appeals. In granting a
variance, the Board of Appeals may prescribe any conditions it deems
to be necessary or desirable so that the intent and spirit of this
chapter shall be observed.
A.
Criteria for variances. The Board of Appeals shall
grant no variance in the application of any provision of this chapter
unless it makes the following findings:
(1)
That there are special circumstances or conditions
applying to such land or buildings and not applying generally to land
or buildings in the vicinity and under identical district classification,
and that said circumstances or conditions are such that strict application
of the provisions of this chapter would deprive the applicant of the
reasonable use of such land or buildings or of privileges enjoyed
by other properties in the vicinity and under identical district classification.
(2)
That the granting of the variance is necessary for
the reasonable use of the land or building and that the variance as
granted by the Board of Appeals is the minimum variance that will
accomplish this purpose.
(3)
That the granting of the variance will be in harmony
with the general purpose and intent of this chapter, and will not
be injurious to the vicinity or otherwise detrimental to the public
welfare.
(4)
That any variance granted shall be subject to such
conditions as will assure that the adjustment thereby authorized shall
not constitute a grant of special privilege inconsistent with the
limitations upon other properties in the vicinity and district in
which the subject property is situated.
B.
Expiration of variances. Any variance not exercised
within one year of its being granted by the Board of Appeals shall
terminate without further hearing.
Any person or persons jointly or severally aggrieved
by any decision of the Board of Appeals may, within 30 days of the
date on which the Board's decision is filed in the office of the Village
Clerk, apply to the Supreme Court for relief as provided by the Village
Law and under Article 78 of the Civil Practice Law and Rules.
