A.
A Zoning Board of Appeals shall be maintained in accordance
with § 267 of the Town Law. Said Board of Appeals shall
consist of five regular members appointed by the Town Board for staggered
terms of five years. An alternate member, who may serve in the absence
or requirement for recusal of a member in the consideration of a particular
matter before the Board, may as authorized by Town Law also be appointed
at the discretion of the Town Board pursuant to L.L. No. 1-2002, as
adopted on May 30, 2002.
B.
The Town Board shall annually designate the Chairperson
of the Zoning Board of Appeals from among the regular members, while
the Board shall annually designate its Secretary and may prescribe
reasonable rules, in addition to those provided herein, for the conduct
of its business.
C.
No person who is a member of the Town Board shall
be eligible for membership on such Board of Appeals.
D.
Members and alternates shall be residents of the Town
of Union Vale.
[Added 1-8-2004 by L.L. No. 1-2004]
The Zoning Board of Appeals shall have all the
powers and duties prescribed by Town Law and by this chapter, which
are more particularly specified as follows:
A.
Interpretation. The Zoning Board of Appeals may reverse
or affirm, wholly or partially, 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 by the administrative official,
i.e., the Town Code Enforcement Officer, charged with the administration
and enforcement of this chapter and to that end shall have the power
of the administrative official from whose order, requirement, decision,
interpretation or determination the appeal is taken.
B.
Use variances.
(1)
The Zoning Board of Appeals, upon appeal from the
decision or determination of the Code Enforcement Officer, shall have
the power to grant use variances authorizing a use of land which otherwise
would not be allowed or would be prohibited within the specific zoning
district by the terms of this chapter.
(2)
No such use variance shall be granted by the Zoning
Board of Appeals without a showing by the applicant that the applicable
regulations and restrictions imposed by this chapter have caused unnecessary
hardship. In order to prove such unnecessary hardship, the applicant
shall demonstrate to the Board of Appeals compliance with each of
the following criteria:
(a)
That under the applicable regulations and restrictions
imposed by this chapter the applicant cannot realize a reasonable
return, provided that the lack of return is substantial as demonstrated
by competent financial evidence.
(b)
That the alleged hardship relating to the property
in question is unique and does not apply to a substantial portion
of the district or neighborhood.
(c)
That the requested use variance, if granted,
will not alter the essential character of the district or neighborhood.
(d)
That the alleged hardship has not been self-created.
(3)
The Board of Appeals, in the granting of a use variance,
shall grant the minimum variance that is deemed 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
and the health, safety and welfare of the community.
C.
Area variances.
(1)
The Zoning Board of Appeals, upon appeal from the
decision or determination of the Code Enforcement Officer, shall have
the power to grant area variances from the area and bulk requirements
of this chapter.
(2)
In making its determination, the Zoning Board of Appeals
shall take into consideration the benefit to the applicant if the
area variance is granted, as weighed against the detriment to the
health, safety and welfare of the neighborhood or community by such
grant. In making such determination, the Board of Appeals shall explicitly
consider each of the following factors:
(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 granting of the area variance.
(b)
Whether the benefit sought by the applicant
can be achieved by some other method or means feasible for the applicant
to pursue, other than an area variance.
(c)
Whether the requested variance is substantial.
(d)
Whether the requested area variance will have
an adverse effect or impact on the physical or environmental conditions
in the neighborhood or zoning district.
(e)
Whether the alleged practical 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)
The Board of Appeals, in the granting of an area variance,
shall grant the minimum variance that it shall deem necessary and
adequate and at the same time preserve and protect the character of
the neighborhood and the health, safety and welfare of the community.
In its quasi-judicial role, the Zoning Board
of Appeals shall act in strict accordance with the procedure specified
by § 267 of the Town Law and this chapter.
A.
Meetings, quorum and records.
(1)
Meetings shall be held at the call of the Chairperson
or at such other times as the Zoning Board of Appeals may determine.
All meetings and deliberations of the Board of Appeals shall be open
to the public to the extent provided in Article 7 of the Public Officers
Law.
(2)
A quorum shall consist of a simple majority, i.e.,
three, of the members, of the Board of Appeals but in order to reverse
a decision of the Zoning Enforcement Officer, grant a variance or
otherwise a change of use, an affirmative vote of at least three members
shall be required. An affirmative vote of a majority plus one, i.e.,
of at least four members, shall further be required if the action
taken by the Board of Appeals is contrary to an advisory recommendation
received from the Dutchess County Department of Planning pursuant
to the provisions of § 239 of the General Municipal Law.
(3)
The Board of Appeals shall keep accurate minutes of
its proceedings documenting fully all findings and showing the vote
of each member upon each question.
B.
Application and fee.
(1)
All
applications made to the Zoning Board of Appeals shall be in writing,
on forms prescribed by the Board, within 60 calendar days of the action
appealed from, and shall be accompanied by the applicable fee in accordance
with the fee schedule annually reviewed and established by the Town
Board. Every appeal or application shall refer to the specific provision
of this chapter that is involved and shall precisely set forth either
the interpretation that is claimed or the details of the variance
that is applied for and the ground on which it is claimed that such
variance should be granted. Each application shall also be accompanied
by a Short or Full Environmental Assessment Form (EAF) as required
by the Board of Appeals pursuant to SEQRA, Article 8 of the Environmental
Conservation Law and Title 6 Part 617 NYCRR.
(2)
Any
application for an area variance from a dimensional requirement set
forth within this chapter shall be accompanied by a drawing prepared
by a licensed land surveyor documenting the specific area variance
requested by depicting, through precise dimension, the proposed improvement
and both the minimum setback or other requirement as established by
this chapter and the setback or other requirement that would apply
were the requested area variance granted.
[Added 3-11-2010 by L.L. No. 12-2010]
C.
Public notice and hearing. The Zoning Board of Appeals
shall convene a public hearing within 62 calendar days on any such
appeal or application, of which hearing date the appellant or applicant
shall be given notice and at which hearing he shall appear in person
or be represented by attorney or other agent. Any interested party
may appear at such public hearing in person, or be represented by
attorney or other agent, or submit comments in writing for timely
receipt prior to the public hearing. The Board shall additionally
provide notice as follows:
(1)
By publishing at least five calendar days prior to
the date thereof a legal notice in the official newspaper of the Town,
which notice shall set forth the location and the substance of the
appeal or application.
(2)
By requiring the Secretary of the Board of Appeals
provide notice not less than five calendar days prior to the date
thereof of the substance of every appeal for a variance together with
a notice of the hearing thereon by certified mail, return receipt
requested, to the owners of all property abutting, lying directly
opposite or otherwise lying within 300 feet of the land involved in
the appeal.
(a)
The Secretary shall certify compliance with
this notification procedure.
(b)
In accordance with the fee schedule established
by the Town Board, the Town shall charge the appellant either a flat
rate or a stated amount per notice for satisfying this requirement.
(c)
The names and addresses of owners notified shall
be taken as such appear on the last completed tax roll of the Town.
(d)
Provided that there has been substantial compliance
with this extraordinary notification requirement, the failure to give
notice in exact conformance herewith shall not be deemed to invalidate
an action taken by the Board of Appeals in either granting or denying
an appeal for a variance from a specific provision of this chapter.
(3)
If the land involved in the appeal lies within 500
feet of the boundary of any other municipality, the Secretary of the
Board of Appeals shall also submit at least five calendar days prior
to the public hearing to the municipal clerk of such other municipality
or municipalities a copy of the notice of the substance of every appeal,
together with a copy of the notice of such public hearing as submitted
to the official newspaper of the Town.
(4)
In the case of either an appeal for use variance or a request for determination with respect to the conversion of a nonconforming use to another nonconforming use under §§ 210-78B and D, respectively, of this article, by causing any parcel affected by the requested use variance or request for determination to be conspicuously posted on each road frontage for at least 10 calendar days prior to the public hearing.
D.
Referrals.
(1)
A full statement of any appeal meeting the specific
referral requirements of §§ 239-l and 239-m of the
General Municipal Law shall also be referred prior to the public hearing
to the Dutchess County Department of Planning for its review. The
Zoning Board of Appeals shall take no action on such appeal until
an advisory recommendation has been received from said County Planning
Department or 30 calendar days have elapsed since the Planning Department
received such full statement. Such actions shall include those affecting
property located within 500 feet of any of the following:
(a)
Municipal boundary.
(b)
Boundary of any existing or proposed county
or state park or other recreation area.
(c)
Right-of-way of any existing or proposed county
or state road or highway.
(d)
Existing or proposed boundary of any county-
or state-owned land on which a public building or institution is situated.
(2)
The Zoning Board of Appeals shall additionally refer
to the Town Planning Board both all applications for use variances
and requests for change in nonconforming uses and may refer to the
Planning Board any other matters it deems pertinent for review and
recommendation. The Board of Appeals shall defer decision on any such
application for a period of 30 calendar days to permit a report thereon
to be issued by the Planning Board. Upon its failure to submit such
report to the Board of Appeals within the 30 calendar days, the Planning
Board shall be deemed to have waived any rights concerning the matter
being referred.
E.
Consultant
review. In its review of an application for variance or request for
interpretation, the Zoning Board of Appeals may, in addition to referral
as may be required to the Dutchess County Department of Planning or
either required or deemed appropriate to the Town Planning Board,
consult with the Town's designated private planning, legal and engineering
consultants.
[Added 3-11-2010 by L.L. No. 12-2010[1]]
F.
Decisions. Every decision of the Zoning Board of Appeals
on an appeal or other request shall be made within 62 calendar days
of the close of the public hearing by the Board, shall be recorded
in accordance with standard forms adopted by the Board and shall fully
set forth the circumstances of the case and contain a full record
of the findings on which the decision is based, including record of
compliance with the applicable provisions of SEQRA, Article 8 of the
Environmental Conservation Law and Title 6 Part 617 NYCRR. Every decision
shall be by resolution of the Board, with such decision being filed
in the office of the Town Clerk within 10 calendar days thereof. The
Board of Appeals shall also notify the Code Enforcement Officer, the
Clerk of the Planning Board and any affected municipality given notice
of the public hearing of its decision in each case. Should an action
be taken contrary to a recommendation made by the Dutchess Court Department
of Planning pursuant to § 239 of the General Municipal Law,
report thereof shall be filed within seven calendar days with said
Department.
G.
Attachment of conditions. The Zoning Board of Appeals
shall, in the granting of either area variances or use variances,
have the authority to impose 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 will 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.
H.
Expiration of approval. Unless construction or use
is diligently commenced within one calendar year from the date of
the Zoning Board of Appeals' granting of a variance, such variance
shall become null and void without further hearing or action by the
Board.
A.
Strict construction. All provisions of this chapter
pertaining to the Zoning Board of Appeals shall be strictly construed.
The Board of Appeals, as a body of limited jurisdiction, shall act
in full conformity with all provisions of law and this chapter and
in strict compliance with all limitations contained therein, provided,
however, that if the procedural requirements set forth in this chapter
have been substantially observed, no appellant or other applicant
shall be considered to have been deprived of the right of appeal or
other application.
B.
Effect of appeal. Unless the Code Enforcement Officer
finds there to be an imminent threat either to life or to property,
an appeal stays all proceedings by either the Town or appellant in
furtherance of the action which is the subject of the appeal.
C.
Rehearing. A motion for the Zoning Board of Appeals
to hold a rehearing to review any order, decision or determination
of the Board not previously reviewed may be made by any member of
the Board. A unanimous vote of all members of the Board then present
and constituting not less than a quorum is required for such rehearing
to be scheduled. Upon such rehearing, the Board may reverse, modify
or annul its original order, decision or determination by unanimous
vote of all members then present, provided that the Board finds that
the rights vested in persons acting in good faith in reliance upon
the reviewed order, decision or determination will not be prejudiced
thereby.
D.
Relief from decisions. Any person or persons jointly
or severally aggrieved by any decision of the Zoning Board of Appeals
may apply to the Supreme Court of the State of New York for relief
through a proceeding under Article 78 of the Civil Practice Law and
Rules of the State of New York. Such proceeding shall otherwise be
governed by the specific provisions of Article 78, but must be initiated
as therein provided within 30 calendar days after the filing of the
Board's decision in the office of the Town Clerk.
