Town of Neversink, NY
Sullivan County
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Table of Contents
Table of Contents
[Amended 3-25-1992 by L.L. No. 3-1992[1]]
[1]
Editor's Note: This local law also provided that this article shall take effect 7-1-1992.
A. 
Establishment. Pursuant to the provisions of § 267 of the Town Law, a Zoning Board of Appeals (ZBA) is hereby established in the Town of Neversink.
B. 
Appointment of members. The ZBA shall consist of five members to be appointed by the Town Board. The Town Board shall designate the Chairperson thereof. In the absence of a Chairperson the ZBA may designate a member to serve as Acting Chairperson. The Town Board may provide for compensation to be paid to experts, clerks and a secretary and provide for such other expenses as may be necessary and proper, not exceeding the appropriation made by the Town Board for such purpose.
C. 
Town Board members ineligible. No person who is a member of the Town Board shall be eligible for membership on the ZBA.
D. 
Terms of members first appointed. In the creation of a new ZBA or the reestablishment of terms of an existing ZBA, the appointment of members to the ZBA shall be for terms so fixed that one member's term shall expire at the end of the calendar year in which such member was initially appointed. The remaining members' terms shall be so fixed that one member's term shall expire at the end of each year thereafter. At the expiration of each original member's appointment, the replacement member shall be appointed for a term which shall be equal in years to the number of members of the Board.
E. 
Terms of members now in office. Members now holding office for terms which do not expire at the end of a year shall, upon the expiration of their term, hold office until the end of the year and their successors shall then be appointed for terms which shall be equal in years to the number of members of the ZBA.
F. 
Vacancy in office. If a vacancy shall occur otherwise than by expiration of term, the Town Board shall appoint the new member for the unexpired term.
G. 
Removal of members. The Town Board shall have the power to remove any member of the ZBA for cause and after public hearing.
H. 
Chairperson duties. All meetings of the ZBA shall be held at the call of the Chairperson and at such other times as such Board may determine. Such Chairperson or, in his or her absence, the Acting Chairperson may administer oaths and compel the attendance of witnesses.
I. 
Alternate members.
[Added 11-3-2010 by L.L. No. 2-2010]
(1) 
Applicability. This subsection shall apply to the appointment, terms, functions and powers of alternate members appointed to serve on the Zoning Board of Appeals in the Town of Neversink.
(2) 
Findings; use of alternate members authorized. It is sometimes difficult to maintain a quorum on the Zoning Board of Appeals because members are ill or on extended vacation or find they have a conflict of interest situation on a specific matter before such Board. In such instances, official business cannot be conducted, which may delay or impede adherence to required timelines. The use of alternate members in such instances is hereby authorized pursuant to the provisions of this article.
(3) 
Definitions. As used in this subsection, the following terms shall have the meanings indicated:
ALTERNATE MEMBER
An individual appointed by the Town Board when a regular member is unable to participate on an application or matter before the respective Board, as provided herein.
MEMBER
An individual appointed by the Town Board to serve on the Town Zoning Board of Appeals pursuant to the provisions of the local laws or ordinance which first established such Board.
(4) 
Purpose; appointment and designation of alternate members.
(a) 
The Town Board of the Town of Neversink hereby enacts this subsection to provide a process for appointing alternate members of the Zoning Board of Appeals. These individuals would serve when members are absent or unable to participate on an application or matter before the respective Board.
(b) 
Alternate members of the Zoning Board of Appeals may be appointed by the Town Board or other duly authorized appointing authority for a term of three years, with the terms to expire on December 31 of the third year after the date of their appointment.
(c) 
The Chairperson of the Zoning Board of Appeals may designate an alternate to substitute for a member when such member is unable to participate 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 minutes of the initial Board meeting at which the substitution is made.
(d) 
All provisions of state law relating to Zoning Board of Appeals member eligibility, vacancy in office, removal, compatibility of office and service on other boards, as well as any provisions of a local law/local ordinance relating to training, continuing education, compensation and attendance, shall also apply to alternate members.
J. 
Supersession of New York State Town Law. This subsection is hereby adopted pursuant to the provisions of § 10 of the New York State Municipal Home Rule Law and § 10 of the New York State Statute of Local Governments. It is the intent of the Town Board, pursuant to § 10 of the New York State Municipal Home Rule Law, to supersede the provisions of:
[Added 11-3-2010 by L.L. No. 2-2010]
(1) 
Section 271 of the New York State Town Law relating to the appointment of members to Town Planning Boards; and/or
(2) 
Section 267 of the New York State Town Law relating to the appointment of members to Town Zoning Boards of Appeal.
A. 
Rules and regulations. The ZBA is hereby authorized to adopt rules and regulations for the conduct of its business consistent with this chapter and the Town Law.
B. 
Burden of proof. The burden of proof in connection with all matters relating to an appeal or variance shall be wholly with the applicant.
C. 
Meetings, minutes, records. Meetings of such ZBA shall be open to the public to the extent provided in Article 7 of the Public Officers Law. Such ZBA shall keep minutes of its proceedings, showing the vote of each member, upon every question, or if absent or failing to vote, indicating such fact, and shall also keep records of its examinations and other official actions.
D. 
Filing requirements. Every rule and regulation, every amendment or repeal thereof and every order, requirement, decision or determination of the ZBA shall immediately be filed in the office of the Town Clerk and shall be a public record.
E. 
Assistance to ZBA. The ZBA shall have the authority to call upon any department, agency or employee of the Town for such assistance as shall be deemed necessary and as shall be authorized by the Town Board. Such department, agency or employee shall be reimbursed for any expenses incurred as a result of such assistance.
F. 
Hearing appeals. The jurisdiction of the ZBA shall be appellate only and shall be limited to hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation or determination made by an administrative official charged with the enforcement of this chapter. The concurring vote of a majority of the members of the ZBA shall be necessary to reverse any order, requirement, decision or determination of any such administrative official or to grant a use variance or area variance. Such appeal may be taken by any person aggrieved or by an officer, department or board of the Town.
G. 
Time of appeal. Such appeal shall be taken within 60 days after the filing of any order, requirement, decision, interpretation or determination of the administrative officer charged with the enforcement of this chapter by filing with such administrative official and with the ZBA a notice of appeal, specifying the grounds thereof and the relief sought. The administrative official from whom the appeal is taken shall forthwith transmit to the ZBA all the papers constituting the record upon which the action appealed from was taken. The cost of sending or publishing any notices relating to such appeal shall be borne by the appealing party and shall be paid to the ZBA prior to the hearing of such appeal.
H. 
Stay upon appeal. An appeal shall stay all proceedings in furtherance of the action appealed from, unless the administrative official charged with the enforcement of this chapter from whom the appeal is taken certifies to the ZBA, after the notice of appeal shall have been filed with the administrative official, 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 ZBA or by a court of record on application, on notice to the administrative official from whom the appeal is taken and on due cause shown.
I. 
Hearing on appeal. The ZBA shall fix a reasonable time for the hearing of the appeal or other matter referred to it and give public notice thereof by the publication in a newspaper of general circulation in the Town of a notice of such hearing, at least five days prior to the date hereof. In addition, the ZBA shall cause notice of such hearing to be provided to the owners of property within 500 feet of the parcel subject to the appeal as identified on the latest assessment roll of the Town of Neversink. Such notice shall be given by certified mail at least 10 days in advance of such hearing. All costs associated with providing such notice shall be borne by the appellant.
[Amended 1-23-2008 by L.L. No. 1-2008]
J. 
Time of decision. The ZBA shall decide upon the appeal within 62 days after the conduct of said hearing. The time within which the ZBA must render its decision may be extended by mutual consent of the applicant and the ZBA.
K. 
Filing of decision and notice. The decision of the ZBA on the appeal shall be filed in the office of the Town Clerk within five business days after the day such decision is rendered and a copy thereof mailed to the applicant.
L. 
Notice to park commission or planning agency. At least five days before such hearing, the ZBA shall mail notice thereof to the parties; to the regional state park commission having jurisdiction over any state park or parkway within 500 feet of the property affected by such appeal; and to the County Planning Agency, as required by § 239-m of the General Municipal Law, which notice shall be accompanied by a full statement of the matter under consideration, as defined in Subdivision 1 of § 239-m of the General Municipal Law.
M. 
Compliance with State Environmental Quality Review Act. The ZBA shall comply with the provisions of the State Environmental Quality Review Act under Article 8 of the Environmental Conservation Law and its implementing regulations as codified in Title 6, Part 617 of the New York Codes, Rules and Regulations.
A. 
Interpretations, requirements, decisions, determinations. The ZBA 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 administrative official charged with the enforcement of this chapter and to that end shall have all the powers of the administrative official from whose order, requirement or decision the appeal is taken.
B. 
Use variances.
(1) 
The ZBA, on appeal from the decision or determination of the administrative official charged with the enforcement of this chapter, shall have the power to grant use variances, authorizing a use of the land which otherwise would not be allowed or would be prohibited by the terms of this chapter.
(2) 
No such use variance shall be granted by a ZBA without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship. In order to prove such unnecessary hardship, the applicant shall demonstrate to the ZBA that:
(a) 
Under applicable zoning regulations, the applicant is deprived of all economic use or benefit from the property in question, which deprivation must be established by competent financial evidence;
(b) 
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) 
The requested use variance, if granted, will not alter the essential character of the neighborhood; and
(d) 
The alleged hardship has not been self-created.
(3) 
The ZBA, in granting of use variances, shall grant the minimum variance that it shall deem 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.
[Amended 1-13-1993 by L.L. No. 1-1993]
(1) 
The ZBA shall have the power, upon an appeal from a decision or determination of an administrative official charged with the enforcement of this chapter, to grant area variances from the area or dimensional requirements of this chapter.
(2) 
In making its determination, the ZBA shall take into consideration the benefit to the applicant if the 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 ZBA shall also consider whether:
(a) 
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) 
The benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;
(c) 
The requested area variance is substantial;
(d) 
The proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and
(e) 
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) 
The ZBA, in the granting of area variances, 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.
D. 
Imposition of conditions. The ZBA 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 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.
E. 
Limitation on rehearings. Whenever the ZBA, after hearing all the evidence presented upon an application or appeal under the provisions of this chapter, denies the same, the ZBA shall refuse to hold further hearings on said or substantially similar application or appeal by the same applicant, his successor or assign for a period of one-year unless the ZBA shall find and determine from the information supplied by the request for a rehearing that changed conditions have occurred relating to the promotion of the public health, safety, convenience, comfort, prosperity and general welfare and that a reconsideration is justified.
F. 
Application to Supreme Court by aggrieved persons. Any person or persons, jointly or severally aggrieved by any decision of the ZBA or any officer, department, board or bureau of the Town, may apply to the Supreme Court for review by a proceeding under Article 78 of the Civil Practice Law and Rules. Such proceeding shall be instituted within 30 days after the filing of a decision by the ZBA in the office of the Town Clerk.