The Board of Appeals shall have all the powers
and duties prescribed by law and by this chapter, as set forth below,
provided that none of the following provisions shall be deemed to
limit any power of the Board that is conferred by law.
A. Interpretations, requirements, decisions and determinations.
The 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 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 Board of Appeals, 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 Board of
Appeals 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 Board of Appeals that for each and every permitted use under
the zoning regulations for the particular district where the property
is located:
(a)
That 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)
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 Board of Appeals, in the 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.
(1) The Board of Appeals 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 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.
(3) The Board of Appeals, 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 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 or the period of time such variance shall be in effect. Such
conditions shall be consistent with the spirit and intent of the Zoning
Ordinance or local law and shall be imposed for the purpose of minimizing
any adverse impact such variance may have on the neighborhood or community.
E. In all cases where the Board of Appeals grants a variance
from the strict application of the requirements of this chapter, it
shall be the duty of said Board to attach such conditions and safeguards
as may be required in order that the result of its action may be as
nearly as possible in accordance with the spirit and intent of this
chapter.
F. Time limit.
(1) All use variances and area variances granted by the
Board of Appeals shall be and become null, void and of no further
force and effect unless:
(a)
In the case of a use variance, the use so granted
shall actually have commenced upon the premises within six months
after filing of the decision of the Board with the Town Clerk; or
(b)
In the case of an area variance, the erection
and construction of the principal building or structure for which
the area variance shall have been granted by the Board of Appeals
shall actually have been commenced within 12 months of the date of
filing of the decision with the Town Clerk.
(2) Excavation for or construction of a building foundation
shall not be deemed to be commencement of the erection or construction
of such building or structure within the meaning of this section.
G. Time of appeal. An 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 officer and with
the Board of Appeals a notice of appeal, specifying the grounds thereof
and the relief sought. The administrative official from whom the appeal
is taken shall immediately transmit to the Board of Appeals 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 Board of Appeals prior to the date set for hearing on
such appeal.
The powers and duties of the Board of Appeals
shall be exercised in accordance with the following procedure:
A. Public hearing; notice required.
(1) The Board of Appeals shall not decide any appeal for
a variance or interpretation of this chapter without first holding
a public hearing, notice of which hearing, including the substance
of the appeal or application, shall be given by publication in the
official newspaper of the Town at least five days before the date
of such hearing. In addition to such published notice, the applicant
shall cause notification to be:
(a)
Mailed by certified mail, return receipt requested,
to owners of neighboring property within 100 feet of the subject premises,
if the subject premises is within an R-10 District;
(b)
Mailed by certified mail, return receipt requested,
to owners of neighboring property within 500 feet of the subject premises,
if the subject premises is within an R-40 or R-80 District; or
(c)
Mailed by certified mail, return receipt requested,
to owners of neighboring property within 100 feet of the subject premises,
if the subject premises is within a PRD, a Commercial, or IOC District.
(2) Such notices shall be mailed at least seven days before
the hearing. Additional mailings may be required by the Board to be
made, as the Board may deem advisable.
(3) The names and addresses of said neighboring property
owners shall be taken as they appear on the last completed tax roll
of the Town. Proof of mailing shall be provided to the Zoning Board
at the time of the hearing. In the alternative, an acknowledgment
of receipt of such notice signed by the neighboring property owners
shall constitute compliance with the above.
B. The failure to give notice in exact conformance herewith
shall not be deemed to invalidate action taken by the Board of Appeals
in connection with the granting of any appeal or variance, provided
that due notice shall have been published and that there shall have
been substantial compliance with the remaining provisions of this
section.
C. In any matter which relates to a property which lies
within 500 feet of the boundary of another municipality, the Secretary
of the Board of Appeals shall transmit to the Municipal Clerk of such
other municipality a copy of the official notice of the public hearing
on such matter not later than one day after publication thereof. Such
other municipality shall have the right to appear and to be heard
at such public hearing.
D. All appeals and applications made to the Board of
Appeals shall be in writing and shall be accompanied by the required
fee. The amount of such fee shall be set by the Town Board.
E. Each appeal or application shall fully set forth the
circumstances of the case, shall refer to the specific provision of
this chapter involved and shall exactly set forth, as the case may
be, the interpretation that is claimed, the details of the variance
that is applied for and the grounds on which it is claimed that the
same should be granted.
F. Time of decision. The Zoning Board of Appeals shall
make a decision within 62 days after the final hearing. The concurring
vote of the majority of all members of the Zoning Board of Appeals
shall be necessary to reverse any order, requirement, decision or
determination of any official charged with the administration of this
chapter or to decide in favor of an applicant in any matter upon which
it is required to pass under this chapter.
G. Referrals to the Planning Board. In connection with
any appeal or application submitted to the Zoning Board of Appeals,
said Board may transmit to the Planning Board a copy of said appeal
or application for an advisory opinion. Upon such request, the Planning
Board shall submit a report of such advisory opinion within 30 days
of the receipt of the referral.
H. County referral. Prior to action on an application
for an area variance, a use variance, or a special use permit under
this section, a copy of said application shall be forwarded to the
Putnam County Planning Department for review pursuant to General Municipal
Law § 239-m if the boundary of the property that is the
subject of the application is located within 500 feet of:
(1) The boundary of any city, village, or town; or
(2) The boundary of any existing or proposed county or
state park or other recreation area; or
(3) The right-of-way of any existing or proposed county
or state parkway, thruway, expressway, road or highway; or
(4) The existing or proposed right-of-way of any stream
or drainage channel owned by the county or for which the county has
established channel lines; or
(5) The existing or proposed boundary of any county- or
state-owned land on which a public building or institution is situated;
or
(6) The boundary of a farm operation located in an agricultural
district, as defined by Article 25-AA of the Agriculture and Markets
Law.
I. Referral to neighboring municipalities. Pursuant to
General Municipal Law § 239-nn, for a use variance, area
variance, or a special use permit application involving property located
within 500 feet of an adjacent municipality, notice of any public
hearing shall be given by mail or electronic transmission to the Clerk
of the adjacent municipality not less than 10 days prior to the date
of said hearing.
J. Notice to park commission. At least five days before
such hearing, the Board of Appeals shall mail notices thereof to the
parties and to the regional state park commission having jurisdiction
over any state park or parkway within 500 feet of the property affected
by such appeal.
K. Agricultural data statement. An application for an
area variance, a use variance, or a special use permit must also contain
an agricultural data statement if any portion of the project is located
on property within an agricultural district containing a farm operation,
or other property with boundaries within 500 feet of a farm operation
located in an agricultural district. The agricultural data statement
shall contain the name and address of the applicant; a description
of the proposed project and its location; the name and address of
any owner of land within the agricultural district which contains
farm property; and a Tax Map or other map showing the site of the
proposed project relative to the location of farm operations identified
in the agricultural data statement.
L. Every decision of the Board of Appeals shall be recorded
in accordance with standard forms adopted by the Board, shall fully
set forth the circumstances of the case, and shall contain a full
record of the findings on which the decision is based. Every decision
of said Board shall be filed with the Town Clerk within five days
of the date of decision.
M. 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 records of the Board's examinations
and official actions shall be a public record.
N. All provisions of this chapter relating to the Board
of Appeals shall be strictly construed. Said Board, as a body of limited
jurisdiction, shall act in full conformity with all provisions of
law and of this chapter and in compliance with all limitations contained
therein.
O. Default denial. In exercising its appellate jurisdiction only, if an affirmative vote of a majority of all members of the Board is not attained on a motion or resolution to grant a variance or reverse any order, requirement, decision or determination of the enforcement officer within the time allowed by Subsection
F herein, the appeal shall be deemed as denied. The Board may amend the failed motion or resolution and vote on the amended motion or resolution within the time allowed without being subject to a rehearing process.