Pursuant to Town Law, the Town Board shall appoint a Zoning Board of Appeals consisting of five members, shall designate its chairman and also provide for compensation to be paid to said members and provide for such other expenses as may be necessary and proper. A member of the Board of Appeals shall not at the same time be a member of the Town Board. The Town Board shall have the power to remove any member of the Board of Appeals for cause and after public hearing.
Term of appointment.
Of the members of the Board of Appeals first appointed, one shall hold office for the term of one year, one for the term of two years, one for the term of three years, one for the term of four years, one for the term of five years, from and after their appointment.
Their successors shall be appointed for the term of five years from and after the expiration of the terms of their predecessors in office. If a vacancy shall occur otherwise than by expiration of term, it shall be filled by the Town Board by appointment for the unexpired term.
Staff. The Board of Appeals may employ such clerical or other assistance as may be necessary and prescribe their duties, provided that it shall not at any time incur expenses beyond the amount of the appropriations made by the Town Board and then available for the purpose.
Rules of procedure; bylaws; forms. 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, nor have the effect of waiving, any provision of this chapter or any other ordinance of the Town of Berne. Such rules, bylaws, and forms, and any amendments or supplement thereto, shall be submitted to the Town Board by the Board of Appeals for approval and filing for public view. The Town Board shall move to approve, reject, or modify such rules, bylaws, and forms within 30 days after submission. Failure of the Town Board to so move shall be construed to constitute approval thereof.
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/her absence, the acting chairman, may administer oaths and compel the attendance of witnesses. All meetings of such Board shall be open to the public. The concurring vote of a majority of all members of the Board of Appeals shall be necessary to reverse any order, requirement, decision or determination of the Building and Zoning Administrator and to decide any other matter within the Board's jurisdiction.
Every decision of the Board of Appeals shall be by resolution, containing a full record of the findings of the Board in the particular case. If a member is absent or fails to vote, the resolution shall indicate such fact. All resolutions shall be in writing. Every rule, regulations, every amendment or repeal thereof, and every order, requirement, decision or determination of the Board of Appeals shall immediately be filed in the office of the Town Clerk, by case number under one of the following headings: special use permits, interpretations or variances, together with all documents pertaining thereto.
Referrals to the Planning Board.
At least 45 days before the date of hearing in connection with any appeal or application submitted to the Board of Appeals, said Board shall transmit to the Planning Board a copy of said appeal or application and shall request that the Planning Board submit to the Board of Appeals its advisory opinion on said appeal or application. The Planning Board shall submit such advisory opinion in writing prior to the date of said public hearings. The failure of the Planning Board to submit such opinion shall be interpreted as a favorable opinion on the appeal or application.
At least five days prior to the public hearing, the Board of Appeals shall also refer the application or appeal to the Albany County Planning Board as required in § 239-m of the General Municipal Law.
The Board of Appeals shall notify the Town Board and the Planning Board of the Town of Berne of each special permit use and each variance granted under the provisions of this chapter.
Voting requirements. Every motion or resolution of the Board of Appeals shall require for its adoption the affirmative vote of a majority of all the members of the Board of Appeals as wholly constituted regardless of vacancies or absences. Where an action is the subject of a referral to the county planning agency, the voting provisions of § 239-m of the General Municipal Law shall apply. 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 official within the time allowed by law, the appeal is 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 the rehearing process as set forth in Subdivision 12 of Town Law § 267-a.
Public notice of any required hearing by the Board of Appeals shall be given in accordance with Town Law as follows: by publishing a notice of any appeal or application and the time and place of the public hearing in the official newspaper of the Town of Berne not less than 10 days prior to the date of such hearing, giving written notice of hearing to any appellant or applicant and any other such notice to property owners in an affected area as may be required by the Board of Appeals, and to the Planning Board not less than five days prior to such hearing and giving written notice of hearing to any required municipal, county, metropolitan, regional, state or federal agency in the manner prescribed by law.
The Board of Appeals shall hear and decide appeals from and review any order, requirement, decision, or determination made by the Building and Zoning Administrator under this chapter in accordance with the following procedure:
Notice of appeal shall be filed with the Building and Zoning Administrator and the Secretary to the Board of Appeals in writing, in a form required by such Board, within 60 days of the date of the action appealed from, specifying the grounds thereof. Every appeal or application shall refer to the specific provisions of the ordinance involved and shall exactly set forth the interpretation that is claimed or the use for which the special use permit is sought or the grounds on which it is claimed that a variance should be granted.
Upon filing of a notice of appeal and payment of a filing fee in accordance with the schedule of fees as promulgated from time to time by the Town Board by the appellant, the Building and Zoning Administrator shall forthwith transmit to the Board of Appeals all the papers constituting the record upon which the action appealed from was taken.
The Board of Appeals shall set a reasonable date for the hearing of each appeal, of which hearing date the appellant shall be given five days' public notice and at which hearing he shall appear in person or by agent or attorney.
An appeal stays all proceedings in furtherance of the action appealed from, unless the Building and Zoning Administrator certified to the Board of Appeals, after notice of appeal shall have been filed with him, that by reason of facts stated in the certificate, a stay would, in his/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 Board of Appeals or by a court of record on application, on notice to the Building and Zoning Administrator.
Within 62 days following public notice and hearing, the Board of Appeals may reverse or affirm, wholly or partly, or may modify the order requirements, decision, or determination appealed from and shall make such order, requirements, decision or determination as in its opinion ought to be made in the premises and to that end shall have all the power of the Building and Zoning Administrator. If the action by the Board of Appeals is to reverse the action of the Building and Zoning Administrator in whole, the filing fee shall be refunded to the appellant.
Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this chapter, the Board of Appeals shall have the power, after public notice and hearing, to vary or modify the application of any of the regulations or provisions of the chapter relating to the use, construction, or alteration of buildings or structures, or the use of land, so that the spirit of the chapter shall be observed, public safety and welfare secured and substantial justice done.
All applications for variances shall be filed with the Secretary to the Board of Appeals in writing, shall be made in a form required by the Board of Appeals, and shall be accompanied by payment of a filing fee in accordance with the schedule of fees as promulgated from time to time by the Town Board, and a plot plan, drawn to scale and accurately dimensioned, showing the location of all existing and proposed buildings and structures on the lot.
Any variance which is not exercised within one year from the date of issuance is hereby declared to be revoked without further hearing by the Board of Appeals.
Criteria for granting variances.
Use variances. No such use variance shall be granted by the 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:
Under applicable zoning regulations, the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence.
The alleged hardship relating to the property in question is unique and does not apply to a substantial portion of the district or neighborhood.
The requested use variance, if granted, will not alter the essential character of the neighborhood.
The alleged hardship has not been self-created.
Area variances. In making its determination, 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:
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.
Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance.
Whether the requested area variance is substantial.
Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.
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.
The 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 proven by the applicant (in the case of use variances) and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.
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, and/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.
The Board of Appeals shall have the power, after public notice and hearing, to grant special use permits in the classes of cases specified in this chapter. For home occupations, special use permits shall be issued by the Planning Board (see Article VI, § 190-25).
All applications for special use permits shall be filed with the secretary to the appropriate board, in writing, and shall be in the form required by the board. They shall be accompanied by payment of a filing fee in accordance with the schedule of fees promulgated from time to time by the Town Board and by a sketch plan, drawn to scale and accurately dimensioned as provided for in Article VIII, § 190-58, Site plan approval.
No special use permit shall be issued by the Board of Appeals/Planning Board unless it shall determine that all of the following conditions will be met:
The use for which the permit is sought will not, in the circumstances of the particular case and under the conditions that the Board of Appeals/Planning Board may consider necessary or desirable, adversely affect the neighborhood or public health or welfare.
The planned use will be appropriately located with respect to transportation facilities, water supply, water disposal, fire protection, police protection and similar services and facilities.
Off-street parking spaces required or specified in the permit will be adequate to handle expected attendance.
Neighborhood character and value of surrounding properties will be reasonably safeguarded.
The use permitted will not cause a traffic hazard or undue traffic congestion.
Additional standard deemed necessary for a special use permit may be required, in specific instances, where reasonable and necessary to carry out the objectives of this chapter.
Whenever the Board of Appeals/Planning Board grants a special use permit, appropriate conditions and safeguards and/or time limitations shall be attached thereto as to guarantee that the permitted use shall not be incompatible with the other permitted uses in the vicinity and district in which the subject property is located. In addition, the Board of Appeals shall use the guidelines set forth in Article V, § 190-22, Traditional Neighborhood/Mixed Use Districts 1 and 2 design standards and guidelines, as a basis for its review and determination in addition to the criteria set forth in Article IX, § 190-64, for special use permit applications in the TN/MU1 and 2 Districts.
A special use permit which is not exercised within one year from the date upon which it is issued is hereby declared to be revoked, without further hearing by the Board of Appeals/Planning Board.
Public hearing and decision on special use permits. The Board of Appeals shall conduct a public hearing within 62 days from the day an application is received on any matter referred to it under this section. Public notice of the hearing shall be printed in a newspaper of general circulation at least five days prior to the date thereof. The Board of Appeals shall decide upon the application within 62 days after the hearing. The time which the Board must render its decision may be extended by mutual consent of the applicant and the Board. The decision of the Board on the application shall be filed within five business days after such decision is rendered and a copy thereof mailed to the applicant.
Notice to applicant and county Planning Board. At least 10 days before a public hearing, the Board of Appeals shall mail notices thereof to the applicant and to the Albany County Planning Board as required by § 239-m of the General Municipal Law.
The Board of Appeals shall comply with the provisions of SEQRA.
Any person or persons, jointly or severally aggrieved by any decision of the Board of Appeals, may apply to the Supreme Court for relief by a proceeding under Article 78 of the Civil Practice Law and Rules of the State of New York. Such proceedings must be instituted within 30 days after the filing of a decision in the office of the Town Clerk. Costs shall not be allowed against the Board of Appeals unless it shall appear to the Court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from.