A. 
Pursuant to the Town Law of the State of New York, there shall be a Board of Appeals appointed in accordance with the provisions thereof. The Board of Appeals shall consist of five members. The members of the Board of Appeals existing on the date of adoption of this chapter shall continue in office to the expiration of their term.
B. 
The Board may employ a Secretary or Clerk who is not a member of the Board, at a salary to be fixed by the Town Board.
C. 
Compensation. The Town Board shall fix the compensation to be paid to the members of the Board of Appeals, if any, on a salary basis or per-meeting basis as determined by the Town Board.
[Added 11-9-2009 by L.L. No. 9-2009[1]]
[1]
Editor's Note: This local law also provided that its provisions are intended to supersede any inconsistent provisions of state or local law, including the following sections of New York State Town Law: §§ 27, Subdivision 1, and 271, Subdivisions 9 and 11.
D. 
Attendance. Any regular or alternate Board of Appeals member who fails to attend three consecutive regularly scheduled Board of Appeals meetings in a calendar year shall be subject to removal from the Board of Appeals pursuant to § 77-55F of this chapter. For the purposes of this section, a regularly scheduled meeting shall be defined as any meeting or workshop scheduled at least 30 days in advance and any site visit scheduled at least two weeks in advance.
[Added 11-9-2009 by L.L. No. 9-2009]
E. 
Alternate members.
[Added 11-9-2009 by L.L. No. 9-2009]
(1) 
The Town Board may appoint up to two alternate members, with each such position having a term of one year, for purposes of substituting for a member(s) in the event such member(s) is absent or unable to participate because of a conflict of interest. All provisions relating to members of planning boards, including training, continuing education, attendance, compensation and removal apply to alternate members.
(2) 
If a Board of Appeals member is unable to participate because of a conflict of interest, the Chairman of the Board of Appeals shall designate an alternate member to substitute for the conflicted member on the particular application or matter before the Board. If a Board of Appeals member is absent from a meeting, the Chairman of the Board of Appeals shall designate an alternate member to substitute for the absent member at that particular meeting for all applications and matters before the Board.
(3) 
Once designated, the alternate member shall possess all the powers and responsibilities of the member being substituted for to make determinations. The minutes of the Board of Appeals shall reflect the meeting at which the substitution is made.
F. 
Removal. The Town Board shall have the power, after public hearing, to remove any regular or alternate member of the Board of Appeals for cause or for failing to comply with the minimum meeting attendance and training requirements established herein, by local law, or by the Town Law.
[Added 11-9-2009 by L.L. No. 9-2009]
A. 
Meetings of the Board shall be held at the call of the Chairman and at such other times as the Board may determine. Meetings shall be at sufficiently frequent intervals, at the discretion of the Board, for the efficient conduct of its business, provided that no matter pending before the Board shall be held longer than 60 days without its being formally considered. All meetings shall be open to the public. A quorum shall consist of three members.
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.[1]
[1]
Editor's Note: See Ch. 36, Fees.
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.