[Amended 4-8-1999 by L.L. No. 1-1999]
Pursuant to § 267 of the Town Law,
the Town Board shall appoint a Zoning Board of Appeals consisting
of seven members, shall designate its Chairperson and also provide
for compensation to be paid to said members and provide for such other
expenses as may be necessary and proper. A member of the Board of
Appeals shall not at the same time be a member of the Town Board.
The Town Board shall have the power to remove any member of the Board
of Appeals for cause and after public hearing, as set forth in § 267-9
of the Town Law.
A.
Term of appointment.
(1)
Of the members of the Board of Appeals first appointed,
one shall hold office for the term of one year, one for the term of
two years, one for the term of three years, one for the term of four
years, one for the term of five years from and after his or her appointment.
(2)
Their successors shall be appointed for the term of
five years from and after the expiration of the terms of their predecessors
in office. If a vacancy shall occur otherwise than by expiration of
term, it shall be filled by the Town Board by appointment for the
unexpired term.
B.
Staff. The Board of Appeals may employ such clerical
or other staff assistance as may be necessary and prescribe their
duties, provided that it shall not at any time incur expenses beyond
the amount of the appropriations made by the Town Board and then available
for that purpose.
C.
Rules of procedure; bylaws; forms. The Board of Appeals
shall have the power to make, adopt and promulgate such written rules
of procedure, bylaws and forms as it may deem necessary for the proper
execution of its duties and to secure the intent of this chapter.
Such rules, bylaws and forms shall not be in conflict with nor have
the effect of waiving any provisions of this chapter or any other
ordinances of the Town of Hurley. Such rules, bylaws and forms and
any subsequent amendments or supplements thereto shall be submitted
to the Town Board by the Board of Appeals for approval and filing
for public view. The Town Board shall move to approve, reject or modify
such rules, bylaws and forms within 30 days after submission. Failure
of the Town Board to so move shall be construed to constitute approval
thereof.
D.
All meetings of the Board of Appeals shall be held
at the call of the Chairperson and at such other times as such Board
may determine. The Chairperson or, in his or her absence, the Acting
Chairperson may administer oaths and compel the attendance of witnesses.
All meetings of such Board shall be open to the public. The concurring
vote of a majority of all members of the Board of Appeals shall be
necessary to reverse any order, requirement, decision or determination
of the Code Enforcement Officer or to decide in favor of an applicant
in any matter upon which it is required to pass under any ordinance
to effect any variation in this chapter. The Board of Appeals shall
decide an appeal or any other matter referred to it within 62 days
after the final hearing.
E.
The Board of Appeals shall keep minutes of its proceedings
showing the vote of each member on every question. If a member is
absent or fails to vote, the minutes shall indicate such fact. Every
rule and regulation, every amendment or repeal thereof and every order,
requirement, decision or determination of the Board of Appeals shall
be filed in the office of the Town Clerk within five business days
after the day such decision is rendered and shall be a public record.
A copy of any decision so filed with the Town Clerk shall be mailed
to the applicant.
F.
All appeals and/or applications to be submitted to the Board of Appeals in accordance with this chapter shall be submitted in three copies to the Code Enforcement Officer, notwithstanding other provisions of Article IX. Within five days, the Code Enforcement Officer shall forward such application to the Board of Appeals. A second copy shall be forwarded to the Planning Board by the Code Enforcement Officer within five days of its receipt. The Planning Board shall submit a report of such advisory opinion to the Code Enforcement Officer prior to the date of said public hearing. The failure of the Planning Board to submit such opinion with 60 days shall be interpreted as a favorable opinion for the appeal or application.
Public notice of any required hearing by the
Board of Appeals shall be given in accordance with Town Law as follows:
A.
By publishing a notice of any appeal or application
and the time and place of the public hearing in the official newspaper
of the Town of Hurley not less than 10 days prior to the date of such
hearing.
B.
By giving written notice of hearing to any appellant
or applicant and any other such notice to property owners in an affected
area as may be required by the Board of Appeals and to the Planning
Board not less than five days prior to such hearing.
C.
By giving written notice of hearing to any required
municipal, county, metropolitan, regional, state or federal agency
in the manner provided in § 267-a, Subdivision 10, of the
Town Law.
[Amended 4-8-1999 by L.L. No. 1-1999]
The Board of Appeals shall hear and decide appeals
from and review any order, requirement, decision or determination
made by the Code Enforcement Officer under this chapter in accordance
with the procedure set forth herewith:
A.
Notice of appeal shall be filed with the Code Enforcement
Officer and the Secretary to the Board of Appeals in writing, in a
form required by such Board, within 30 days of the date of the action
appealed from, specifying the grounds thereof.
B.
Upon filing of a notice of appeal and payment of a
filing fee as set forth in the fee schedule as adopted and amended
from time to time by resolution of the Town Board by the appellant
or applicant, the Code Enforcement Officer shall forthwith transmit
to the Board of Appeals all the papers constituting the record upon
which the action appealed from was taken.
[Amended 4-8-1999 by L.L. No. 1-1999]
C.
The Board of Appeals shall set a reasonable date for
the hearing of each appeal, of which hearing date the appellant shall
be given notice and at which hearing he or she shall appear in person
or by agent or by attorney.
D.
An appeal stays all proceedings in furtherance of
the action appealed from, unless the Code Enforcement Officer certifies
to the Board of Appeals, after notice of appeal shall have been filed
with him or her, that, by reason of facts stated in the certificate,
a stay would, in his or her 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 Code Enforcement
Officer and on due cause shown.
E.
Following public notice and hearing, 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 power of the Code Enforcement Officer. If the action
by the Board of Appeals is to reverse the action of the Code Enforcement
Officer in whole, the filing fee shall be refunded to the appellant.
The Board of Appeals shall decide the same within 62 days following
the final hearing.
[Amended 4-8-1999 by L.L. No. 1-1999]
A.
Where there are practical difficulties or unnecessary
hardships in the way of carrying out the strict letter of this chapter,
the Board of Appeals shall have the power, after public notice and
hearing, to vary or modify the application of any of the regulations
or provisions of this chapter relating to the use, construction or
alteration of buildings or structures or the use of land so that the
spirit of this chapter shall be observed, public safety and welfare
secured and substantial justice done.
B.
All applications for variances shall be filed with
the Secretary of the Board of Appeals in writing, shall be made in
a form required by the Board of Appeals and shall be accompanied by
payment of a filing fee in accord with a fee schedule, as adopted
and amended from time to time by resolution of the Town Board, and
a plot plan, drawn to scale and accurately dimensioned, showing the
location of all existing and proposed buildings and structures on
the lot.
[Amended 4-8-1999 by L.L. No. 1-1999]
C.
Any variance which is not exercised within one year
from the date of issuance is hereby declared to be revoked without
further hearing by the Board of Appeals.
D.
Criteria for granting variances.
[Amended 4-8-1999 by L.L. No. 1-1999]
(1)
Use variance. A use variance, as defined in this chapter,
may only be granted if there is a showing by the applicant that the
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 for each and
every permitted use under the zoning regulations for the particular
district in which the property is located:
(a)
The applicant cannot realize a reasonable return,
provided that the lack of return is substantial as demonstrated by
competent financial evidence;
(b)
The alleged hardship relating to the property
is unique and does not apply to a substantial portion of the district
or neighborhood;
(c)
The requested variance, if granted, will not
alter the essential character of the neighborhood; and
(d)
The alleged hardship has not been self-created.
(2)
Area variance. Prior to granting an area variance,
as defined in this chapter, the Zoning Board of Appeals shall consider
the following:
(a)
Whether an undesirable change will be produced
in the character of the neighborhood or a detriment to nearby properties
will be created by the grant of the area variance;
(b)
Whether the benefit sought by the applicant
can be achieved by some method, feasible for the applicant to pursue,
other than a variance;
(c)
Whether the requested area variance is substantial;
(d)
Whether the proposed variance will have an adverse
effect or impact on the physical or environmental conditions in the
neighborhood or district; and
(e)
Whether the alleged difficulty was self-created,
which consideration shall be relevant to the decision of the Board
of Appeals, but shall not necessarily preclude the granting of the
area variance.
(3)
For reasons fully set forth in the findings, the granting
of the variance by the Board of Appeals shall be the minimum variance
necessary.
(4)
In no case shall a variance be granted solely for
reasons of additional financial gain on the part of the owner or land
or building involved.
E.
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 and/or the period of time such variance shall be in effect.
Such conditions shall be consistent with the spirit and intent of
this chapter and shall be imposed for the purpose of minimizing any
adverse impact such variance may have on the neighborhood or community.
[Added 4-8-1999 by L.L. No. 1-1999]
F.
Interpretations. The Zoning Board of Appeals may reverse
or affirm, wholly or partly, or may modify the order, requirement,
decision, interpretation or determination appealed from and shall
make such order, requirement, decision, interpretation or determination
as in its opinion ought to have been made in the matter by the Code
Enforcement Officer and to that end shall have all the powers of the
Code Enforcement Officer from whose order, requirement or decision
the appeal is taken.
[Added 4-8-1999 by L.L. No. 1-1999]
Any person or persons, jointly or severally,
aggrieved by any decision of the Board of Appeals may apply to the
Supreme Court for relief by a proceeding under Article 78 of the Civil
Practice Law and Rules of the State of New York. Such proceedings
shall be governed by the provisions of Article 78 of the Civil Practice
Law and Rules, except that it must be instituted as therein provided
within 30 days after the filing of a decision in the office of the
Town Clerk; the Court may take evidence or appoint a referee to take
such evidence as it may direct and report the same, with the findings
of fact and conclusions of law, if it shall appear that testimony
is necessary for the proper disposition of the matter; and the Court
at special term shall itself dispose of the case on the merits, determining
all questions which may be presented for determination under the provisions
of § 1296 of said article. Costs shall not be allowed against
the Board of Appeals unless it shall appear to the Court that it acted
with gross negligence or in bad faith or with malice in making the
decision appealed from.
