[Amended 8-14-1989 by L.L. No. 3-1989]
A.
There is hereby established a Zoning Board of Appeals,
which shall consist of five members appointed by the Village Board.
No person who is a member of such Village Board shall be eligible
for membership on the Board of Appeals. The Mayor shall have the power
to remove any member of the Board of Appeals for cause and after a
public hearing.
[Amended 11-13-1995 by L.L. No. 3-1995]
B.
Board of Appeals members shall complete, within 12
months of their appointment and at Village expense, approved courses
in the planning process and the State Environmental Quality Review
(SEQR) process. Subsequently, all Board of Appeals members shall complete
a formal training program or review of planning law and procedures,
at Village expense, at least once every two years. Records of all
such training shall be kept in the minutes of the Board of Appeals.
Failure to complete such courses shall constitute cause for dismissal
from the Board of Appeals.
[Amended 8-14-1989 by L.L. No. 4-1989]
A.
In the event of a vacancy in office or the expiration
of a term of office, the Village Board shall appoint a successor who
shall serve for the unexpired term of the member whose place has become
vacant. At a duly convened meeting of the Village Board, the Mayor
shall present the name of at least one candidate per vacancy not less
than one week prior to the date on which the Village Board will vote
on the appointment. The Village Board may waive the one-week prior
notice by a unanimous vote of the Board members present.
[Amended 11-13-1995 by L.L. No. 3-1995]
B.
The term of each Board of Appeals member shall be
defined to begin on June 1 of the year of appointment and to end on
May 31, five years from the date of appointment. Only one term shall
expire in any calendar year. The members of the Board of Appeals in
office at the time of the adoption of this chapter shall be assigned
by the Village Board to the term which most closely matches the sequence
of planned expiration dates of their current terms and shall continue
in office until the end of the term for which they were appointed
and until their successors have been appointed as herein provided.
The Village Board shall designate a member of
said Board of Appeals to act as Chairman thereof, or, upon failure
so to do, the Board of Appeals shall elect a Chairman from its own
members. The Board of Appeals shall also elect one of its own members
as Acting Chairman to serve in the absence of the Chairman and shall
designate one of its members as Secretary. 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 appropriation made and then
available for that purpose.
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 or have the effect of waiving
any provisions of this chapter or any other ordinances or local laws
of the Village of Fishkill. Such rules, bylaws and forms and any subsequent
amendments or supplements thereto shall be submitted to the Village
Board by the Board of Appeals for approval and filing for public inspection.
The Village Board shall move to approve, reject or modify such rules,
bylaws and forms within 30 days after submission. Failure of the Village
Board to so move shall be construed to constitute approval thereof.
[Amended 11-13-1995 by L.L. No. 3-1995]
The Zoning Board of Appeals shall have all the
powers and duties prescribed by law, which powers and duties are summarized
and more particularly specified hereinafter; provided, however, that
none of the following provisions shall be deemed to limit any power
of the Board of Appeals conferred by §§ 7-712, 7-712-a
and 7-712-b of the Village Law:
A.
Appeals. Upon application by any person aggrieved
or by an officer, department, board or bureau of the Village, the
Board of Appeals shall hear and decide appeals from and review any
order, requirement, decision or determination made by an administrative
official charged with the enforcement of this chapter.
B.
Interpretation. Upon appeal from a decision of an
administrative officer, the Board of Appeals shall decide any question
involving the interpretation of any provision of this chapter, including
determination of the exact location of any district boundary, if there
is uncertainty with respect thereto.
C.
Variances. The Board of Appeals shall have the power
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, upon application by an
appellant.
A.
General standards. In each matter before it, in addition
to the more specific standards applicable thereto, if any, as hereinafter
set forth, the Board of Appeals shall take into consideration the
public health, safety and general welfare and in all cases shall exercise
its powers subject to appropriate conditions and safeguards so that
the spirit of this chapter shall be observed, public safety and welfare
secured and substantial justice done.
B.
Variances.
[Amended 11-13-1995 by L.L. No. 3-1995]
(1)
Upon appeal, after due notice and hearing, the Zoning
Board of Appeals shall have the power to vary or modify the application
of any of the regulations relating to the use, construction, structural
changes in, equipment or alteration of buildings or structures or
the use of land so that the spirit of this chapter and any local law
hereafter adopted or any other code or regulation over which the Board
may hereafter be granted original or appellate jurisdiction by the
Village Board shall be observed, public safety and welfare secured
and substantial justice done in accordance with § 7-712-b
of the Village Law.
(2)
The Zoning Board of Appeals, in the granting of use
and area variances, shall grant the minimum variance that it shall
deem necessary and adequate to address the unnecessary hardship proved
by the applicant and, at the same time, preserve and protect the character
of the neighborhood, the health, safety and welfare of the community
and the general purpose of this chapter applicable thereto.
(3)
Before granting a use variance by the Zoning Board
of Appeals, an applicant shall demonstrate that applicable regulations
and restrictions of this chapter have caused unnecessary hardship.
In order to prove such unnecessary hardship, the applicant shall demonstrate
to the Board of Appeals that for each and every permitted use under
the regulations of this chapter for the particular district where
the property is located:
(a)
The applicant cannot realize a reasonable return,
provided that lack of return is substantial as demonstrated 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)
That the requested use variance, if granted,
will not alter the essential character of the neighborhood.
(d)
That the alleged hardship has not been self-created.
(4)
Before granting an area variance, the Zoning Board
of Appeals 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 Board shall also consider:
(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 method, feasible for the applicant to pursue,
other than an area 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.
(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.
(5)
The Zoning Board of Appeals shall, in the granting
of use and area variances, have the authority to impose such reasonable
conditions and restrictions as are directly related to the proposed
use of the property. 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.
A.
All meetings of the Board of Appeals shall be held
at the call of the Chairman and at such other times as such Board
may determine. The Chairman or, in his absence, the Acting Chairman
may administer oaths and compel the attendance of witnesses. All meetings
of such Board shall be open to the public.
B.
The Board 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. The concurring vote of a majority of
the Board shall be necessary for a decision. The Board shall arrive
at a decision or determination only after notice and hearing as prescribed
by law or by the terms of this chapter.
[Amended 11-13-1995 by L.L. No. 3-1995]
All appeals and applications to the Zoning Board
of Appeals shall be taken in the manner prescribed by law. Appeals
shall be taken within such time as required in § 7-712-a,
Subdivision 5, of the Village Law. All such appeals and applications
shall be in writing, on forms (if any) prescribed by the Board, and
shall state the relief requested and the grounds upon which the request
is based. Reference shall be made to the specific provision or provisions
of this chapter which may be applicable, and the applicant shall set
forth, as the case may be, the order, requirement, decision or determination
to be reviewed, the exact interpretation that is claimed or the details
of the variance applied for. In each case, the grounds for the appeal
or application must be specified. An appeal shall stay all proceedings
as provided by law and as provided in § 7-712-a, Subdivision
6, of the Village Law.
[Amended 11-13-1995 by L.L. No. 3-1995]
The Zoning Board of Appeals shall hold a public
hearing on every appeal or application within a reasonable time after
receipt thereof. The Board shall duly notify the parties and publish
a notice of such hearing in the official newspaper of the Village
not less than 15 days prior to the hearing. The notice shall state
the time and place of the hearing, the address or location of the
subject premises, the name of the applicant and a brief description
of the nature of the application. In addition, at least 15 days prior
to such hearing, the Board of Appeals shall, insofar as practicable,
send copies of such notice by first class mail to all property owners
within a radius of 200 feet of the subject premises, as such adjacent
owners may appear upon the latest completed assessment roll of the
Village. Such notices shall be mailed to the street address of the
properties within said radius, regardless of whether or not the owner
resides there, unless the Board has definite knowledge of other addresses
of absentee owners. Any of the foregoing to the contrary notwithstanding,
because of practical difficulties in determining lot lines, title
to property and the names and addresses of adjacent owners, the mailing
of such notices shall not be a condition precedent to proper legal
notice of hearing, and no hearing or action taken at such hearing
shall be deemed to be invalid or illegal because of failure to mail
any such notice or failure of any addressee to receive the same. The
cost of sending or publishing any notices relating to such appeal
or application or a reasonable fee relating thereto shall be paid
by the appealing party or applicant and shall be paid to the Zoning
Board of Appeals prior to the hearing of such appeal or application.
At least 20 days before the date of each public
hearing, the Secretary of the Board of Appeals shall transmit to the
Village Board and the Planning Board a copy of said application or
appeal, together with a copy of the notice of the aforesaid hearing,
and the Planning Board may submit to the Board of Appeals an advisory
opinion on said application or appeal.
[Amended 11-13-1995 by L.L. No. 3-1995]
Applications for variances within a specified
distance of certain areas and facilities as described in § 239-m
of the General Municipal Law shall be referred to the County Planning
Board and action taken only in accordance with said section of the
General Municipal Law. The County Planning Board shall have a maximum
of 30 days after receipt of a full statement of the proposed variance
to report its recommendations and reasons for such recommendations
to the Zoning Board of Appeals. Should the County Planning Board recommend
modification or disapproval of the variance, the Board of Appeals
shall not act contrary to such recommendation except by a vote of
a majority plus one of all the members thereof and after the adoption
of a resolution fully setting forth the reasons for such contrary
action. Within 30 days after final action, the Zoning Board of Appeals
shall file a report of its final action with the County Planning Board.
If the Zoning Board of Appeals acts contrary to the county's recommendation
of modification or disapproval, the report shall set forth the reasons
for the contrary action.
[Amended 11-13-1995 by L.L. No. 3-1995]
A.
Time limit for decisions; filing of copies. The Zoning
Board of Appeals shall decide each application or appeal within 62
days after the close of the hearing thereon. Every rule, regulation,
order, requirement, decision, interpretation or determination of the
Board shall be filed in the office of the Board and with the Village
Clerk within five business days after the day such decision is rendered
and a copy thereof mailed to the applicant and shall be a public record.
A copy of each decision shall also be filed with the Planning Board
and the Code Enforcement Officer.
[Amended 5-24-2010 by L.L. No. 6-2010]
B.
Form of decision, interpretation or determination.
All decisions of the Board of Appeals shall be by written resolution
and shall set forth the reasons for the granting or denial of the
relief sought or for the interpretation or determination made in the
form of findings of fact and conclusions. Each decision shall also
state in detail the conditions and safeguards, if any, which the Board
deems to be required and accordingly imposes.
C.
Rehearing. If it shall appear to the satisfaction
of the Board of Appeals that a substantial change in facts, evidence
or conditions warrants such action, a motion may be made by any member
of the Board and a unanimous vote of all members of the Board then
present is required for such rehearing to occur. Upon such rehearing,
the Board of Appeals may reverse, modify or annul its original order,
decision, interpretation or determination upon the unanimous vote
of all members then present, provided the Board finds that the rights
vested in persons acting in good faith in reliance upon the reviewed
order, decision, interpretation or determination will not be prejudiced
thereby. Any rehearing shall be conducted upon the same notice provisions
and in the same manner as an original hearing.
Any variance granted prior to the effective
date of this chapter or of any amendment of this chapter shall be
continued only if a certificate of occupancy has been issued or if
a building permit for the authorized construction or use has been
issued prior to such effective date and if said construction or use
may be completed or continued under the provisions of § 171-121
hereof.
Whenever a variance is granted or a determination
is made under this chapter by the Board of Appeals, the use or construction
authorized thereby shall be established or completed within a period
of two years from the date of resolution of the Board of Appeals.
The variance granted or the determination made shall become null and
void in the event of failure to establish such use or complete such
construction. One extension of such period for an additional period
not to exceed one year may be granted by the Board of Appeals after
public hearing for good cause shown.[1]
[1]
Editor's Note: Original Sections 448 and 449,
which immediately followed this section, were deleted as duplicating
§§ 171-75C and D and 171-76.
