Town of Bethlehem, NY
Albany County
By using eCode360 you agree to be legally bound by the Terms of Use. If you do not agree to the Terms of Use, please do not use eCode360.
Table of Contents
Table of Contents

§ 128-87 Creation, appointment and organization.

A. 
There shall be a Zoning Board of Appeals of five members, pursuant to the provisions of § 267 of the Town Law.
B. 
Appointment of members. The Town Board of the Town of Bethlehem shall appoint members to the Zoning Board of Appeals and shall designate a 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 such Board of Appeals.
D. 
Terms of members first appointed. In the creation of a new Zoning Board of Appeals, or the reestablishment of terms of an existing Board, the appointment of members to the Board shall be for terms so fixed that one member's term shall expire at the end of the calendar year in which such members were 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 that shall be equal in years to the number of members of the Board.
E. 
Terms of Zoning Board of Appeals members now in office. The term of Zoning Board of Appeals members now holding office, which do not expire at the end of the calendar year, shall expire on the expiration date of their term. Successors to the vacant office shall then be appointed for terms of office for the remainder of the calendar year, plus one year less than the number of years equal to the number of members of the Board. Terms of successors of members of the Board whose terms expire at the end of the calendar year shall be for the number of years equal to the number of members of the Board. This subsection supersedes New York State Town Law § 267, Subdivision 5.
F. 
Upon appointment the member shall file with the Town Clerk an oath of office as may be prescribed by the Town Board.
G. 
Vacancy in office. If the vacancy shall occur otherwise than by expiration of term, the Town Board shall appoint the new member for the unexpired term.
H. 
Removal of members. The Town Board shall have the power to remove any member of the Zoning Board of Appeals for cause and after public hearing.
I. 
Alternate members. The Town Board may appoint one or more alternate voting members of the Zoning Board of Appeals. Each such alternate voting member shall serve for a term of five years.
(1) 
All provisions of New York State law relating to Zoning Board of Appeals member eligibility, vacancy in office, removal, compatibility of office, and service on other boards, and any provisions of any local laws relating to training, continuing education, compensation and attendance, shall also apply to alternate voting members. Before appointing an alternate voting member, the Town Board shall review the background of any appointee and may, in its discretion, require that such appointee complete specified training prior to any designation to serve as an alternate voting member, or within a specified time thereafter.
(2) 
Upon appointment the alternate voting member shall file with the Town Clerk an oath of office as may be prescribed by the Town Board.
(3) 
At the time of their appointment alternate voting members shall be designated as "Alternate No. 1," "Alternate No. 2," and so on, in the order in which they are first appointed.
(4) 
The Chairperson of the Zoning Board of Appeals, or the Acting Chair, shall designate an alternate voting member to serve in the place of a regular Zoning Board of Appeals member in the following circumstances and for the following periods:
(a) 
When a regular Zoning Board of Appeals member has recused himself or herself with respect to a matter constituting one or more particular applications before the Board, the Chairperson, or the Acting Chair, shall first designate Alternate No. 1 to serve in such regular member's place throughout the entire remaining period of the Zoning Board of Appeals review, consideration, and voting, until the matter is concluded. In the event that Alternate No. 1 is unable to serve, the Chairperson shall designate the next most senior alternate voting member to serve. In the event that the next most senior alternate voting member is unable to serve, the Chairperson shall designate the next most senior alternate voting member to serve, and so on. At the time of designation of an alternate voting member, the Chairperson, or the Acting Chair, shall specify the name of any application or matter for which the designated alternate voting member will serve. The Clerk of the Board shall enter the designation of any alternate voting member or members into the minutes of the meeting at which the designation is made.
(b) 
Rotating appointment of alternate voting members. When a designated alternate voting member has fulfilled his or her duty as to the application or matter to which he or she was appointed, he or she shall not be appointed to another application or matter until each of the other alternate voting members has been appointed to serve.
(5) 
Upon appointment by the Town Board, any alternate voting member shall attend the regular and special Zoning Board of Appeals meetings on the same basis as regular members and shall participate in discussion, deliberation and voting on the Zoning Board of Appeals only upon being designated by the Zoning Board of Appeals Chairperson, or Acting Chair, to serve, as set forth in Subsection I(4) above. Upon designation the alternate voting member shall possess all of the powers and responsibilities of a regular Zoning Board of Appeals member for the period of time for which such alternate voting member serves, with respect to any application or matter for which such alternate voting member has been designated.
(6) 
Prior to deliberating or voting on a matter wherein the alternate voting member has not been present for all of the Zoning Board of Appeals meetings or hearings relating to such matter, the alternate voting member shall become familiar with the Zoning Board of Appeals records relating to the same, including the application, the environmental documents, and any other materials in the Zoning Board of Appeals files, such as minutes of meetings and hearings. Prior to voting on any such matter or application the alternate voting member shall set forth on the record the manner in which such member has become familiar with the record before the Board.
(7) 
This section shall not be deemed to require the appointment of alternate voting members by the Town Board, nor shall it be deemed to impair or restrict the authority of the Town Board to remove members of the Zoning Board of Appeals for cause.
(8) 
It is the intention of this chapter that the Zoning Board of Appeals members will recuse themselves at the earliest possible time when a conflict of interest or appearance of impropriety has arisen and that the Zoning Board of Appeals Chairperson, or Acting Chair, will thereupon immediately notify the Town Board and designate an alternate voting member at the earliest possible time after a recusal has taken place. However, in the case of any pending applications or matters, where any Zoning Board of Appeals members have already made recusals and it has not previously been possible to designate alternate voting members because this chapter is not yet enacted, the Zoning Board of Appeals Chairperson, or Acting Chair, shall designate the alternate Zoning Board of Appeals member or members at the earliest possible time, so that the Zoning Board of Appeals will be able to conduct its business with a full complement of members on all pending matters.
J. 
Chairperson duties. All meetings of the Board of Appeals 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 Chair may administer oaths and compel the attendance of witnesses.
K. 
Rules. The Board of Appeals is hereby authorized to promulgate rules regarding the following matters:
(1) 
The day and time by which applications for new matters, and supplemental materials for pending matters, must be submitted to the Secretary of the Zoning Board of Appeals in order to be considered at the next meeting of the Board.
(2) 
The number of copies of materials that must be submitted for new and pending matters.
(3) 
The maximum number of applications that may be heard at a regular meeting of the Board.
(4) 
The form of the applications for variance and interpretation requests, including the use of a long form or a short form environmental assessment form. See 6 NYCRR 617.2(20) of the State Environmental Quality Review Act regulations.
(5) 
The maximum length of time of a regular meeting of the Board.
(6) 
The conduct of applicants and the public at meetings and public hearings of the Board.

§ 128-88 Training requirements.

A. 
Within the first two years after initial appointment, the Zoning Board of Appeals member shall attend a training program at an appropriate level relating to the duties of Zoning Board of Appeals members, approved in the manner herein provided. All other Zoning Board of Appeals members shall attend training programs of appropriate level during their term of office, approved in the manner herein provided.
B. 
After discussion and consultation with the Chairperson, the Town Board shall establish, by resolution, a list of approved programs and the required minimum hours of attendance to satisfy the training requirements as set forth herein. The Town Board may, from time to time, modify and amend the list of approved programs by resolution, after discussion and consultation with the Chairperson.
C. 
The Town Board shall choose programs that relate to the duties of Zoning Board of Appeals members. These may include courses, workshops or training programs sponsored by groups such as the New York State Association of Towns, the New York State Department of State, the New York State Department of Environmental Conservation, the New York State Planning Federation, certified training providers, or other appropriate entities.
D. 
All training provided or required pursuant to this section shall be at Town cost.
E. 
By December 31 of each year, members of the Zoning Board of Appeals shall file with the Town Clerk proof of attendance at any training programs required by this section.
F. 
Noncompliance with the minimum requirements relating to training shall be deemed a proper cause for removal from office. A Zoning Board of Appeals member who fails to attend the programs as provided in this section and specified pursuant to the resolutions promulgated thereunder shall be subject to removal following the procedures set forth in § 267 of the Town Law.

§ 128-89 Procedure.

A. 
Form. All applications made to the Board of Appeals shall be in writing and on forms prescribed by the Board. Every appeal or application shall refer to the specific provision of this chapter involved and shall, with specificity, set forth the interpretation that is claimed and/or the specific nature of the variance which is applied for and the grounds on which it is claimed the interpretation or the variance should be granted. In addition, an application for a use variance 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 upon which the project is proposed; 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.
B. 
Meetings, minutes and records. Meetings of the Board of Appeals shall be open to the public to the extent provided in Article 7 of the Public Officers Law. The Board of Appeals 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.
C. 
Filing requirements. Every rule, regulation, every amendment or repeal thereof, and every order, requirement, decision or determination of the Board of Appeals shall be filed in the office of the Town Clerk within five business days of the date of vote and decision and shall be a public record.
D. 
Assistance. The Zoning Board of Appeals 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.
E. 
Jurisdiction. Unless otherwise provided by local law or ordinance, the jurisdiction of the Zoning Board of Appeals 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 Zoning Board of Appeals 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, board or bureau of the Town.
F. 
Rehearing. A motion for the Zoning Board of Appeals to hold a rehearing to review any order, decision or determination of the Board not previously reheard may be made by any member of the Board. A unanimous vote of all members of the Board then present is required for such rehearing to occur. Such rehearing is subject to the same notice provisions as an original hearing. Upon such rehearing the Board may reverse, modify or annul its original order, decision or determination upon the unanimous vote of all members then present, provided that the Board finds that any of the rights vested in persons acting in good faith in reliance upon the reheard order, decision or determination will not be prejudiced thereby.
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 such ordinance or local law, by filing with such administrative officer and with the Zoning 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 Zoning 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.
H. 
Stay upon appeal. An appeal shall stay all proceedings in furtherance of the action appealed from, unless the administrative officer charged with the enforcement of such ordinance or local law, from whom the appeal is taken, certifies to the Zoning Board of Appeals, after the notice of appeal has been filed with the administrative officer, 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 Zoning Board of Appeals or by a court of record on application, on notice to the administrative official from whom the appeal is taken and for due cause shown.
I. 
Hearing on appeal. The Zoning Board of Appeals shall fix a reasonable time for the hearing of the appeal or other matter referred to it and shall cause public notice of said hearing to be published in a paper of general circulation in the Town at least five days prior to the date thereof. The Board may provide that the hearing be further advertised in such manner as it deems most appropriate for full public consideration of the application, including the prominent placement of one or more signs on the premises that is the subject of the application notifying interested persons that an application is under consideration by the Board. All notices shall include the name of the applicant, the location of the property involved in the appeal or interpretation, a brief description of the matter that is the subject of the application, and the date, place, time and subject of the public hearing at which the application will be reviewed. Such notice shall not be required for adjourned dates. If an application for use variance contains an agricultural data statement, a copy of the written notice of such application, including a description of the proposed project and its location, shall be mailed to the owners of land as identified by the applicant in the agricultural data statement. Provided that due notice shall have been published as above provided and that there shall have been substantial compliance with the remaining provisions of this subsection, the failure to give notice in exact conformity herewith shall not be deemed to invalidate any action taken by the Zoning Board of Appeals.
J. 
Costs. The cost of sending or publishing any notices relating to such appeal, or a reasonable fee relating thereto, shall be borne by the appealing party and shall be paid to the Board prior to the hearing of such appeal. Upon the hearing, any party may appear in person, or by agent or attorney.
K. 
Time of decision. The Zoning Board of Appeals shall decide upon the appeal within 62 days after the close of the public hearing. The time within which the Zoning Board of Appeals must render its decision may be extended by mutual consent of the applicant and the Board. Every decision of the Zoning Board of Appeals shall be by resolution, each of which shall contain a full record of the findings of the Board in the particular case.
L. 
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 K 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.
M. 
Filing of decision and notice. The decision of the Zoning Board of Appeals on the appeal shall be filed in the office of the Town Clerk within five business days of the date such decision is rendered and a copy thereof shall be mailed to the applicant.
N. 
Notice to parties and Park Commission. At least five days before such hearing, the Zoning 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.
O. 
County referral. Prior to action on an application for an area variance or a use variance under this section, and except as may be provided as per intermunicipal agreement between the Town of Bethlehem and Albany County, a copy of said application shall be forwarded to the Albany County Planning Board 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:
[Amended 10-8-2008 by L.L. No. 3-2008]
(1) 
The boundary of any city, village, or town;
(2) 
The boundary of any existing or proposed county or state park or other recreation area;
(3) 
The right-of-way of any existing or proposed county or state parkway, thruway, expressway, road or highway;
(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;
(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.
P. 
Referral to neighboring municipalities. Pursuant to General Municipal Law 239-nn, for a use variance review under this section 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.
Q. 
Compliance with the State Environmental Quality Review Act. The Board of Appeals shall comply with the provisions of the State Environmental Quality Review Act (SEQRA) under Article 8 of the Environmental Conservation Law and its implementing regulations as codified in 6 NYCRR 617.
R. 
Time limit. Any area variance or use variance which has been granted by the Zoning Board of Appeals pursuant to this article shall be void if construction is not started within one year of the date of approval, and completed within two years of the date of such approval. In addition, the variance shall be void if the associated use shall have ceased for more than 12 consecutive months for any reason.
[Amended 10-8-2008 by L.L. No. 3-2008]
(1) 
Exception. Notwithstanding the time limitations placed on the start and completion of construction in Subsection R above, for any project requiring site plan approval subsequent to the granting of an area variance or use variance, said variance shall be void if construction is not started within two years of the date of approval and completed within three years of the date of such approval.
(2) 
Extension of time. Notwithstanding the time limitations cited herein, the Zoning Board of Appeals may grant an extension to the time limits on the start and completion of construction, not to exceed two years, where the Board finds that the applicant has exercised due diligence in pursuing construction of the project.
S. 
Violations. Upon written report or receipt of a notice of violation or an order to cease and desist from the Building Inspector for a violation of this chapter, the Zoning Board of Appeals shall not review, hold public meetings or public hearings, and shall take no action regarding an application for area variance approval, use variance approval, or interpretation until notified by the Building Inspector that such violation has been cured or ceased by the applicant. However, the Board may, upon written recommendation of the Building Inspector, review and act on an application involving property for which there is a violation where such application is a plan to cure the violation and bring the property or use of the property into compliance with this chapter.

§ 128-90 Permitted actions.

A. 
Interpretations. Upon the appeal from a decision by an administrative official, the Zoning Board of Appeals shall decide any question involving interpretation of any provision of this chapter, including any determination of the exact location of any district boundary if there is uncertainty with respect thereto. The Board may reverse or affirm, wholly or in part, 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. In making such determination, the Board shall have all of the powers of the administrative official from whose order, requirement, decision, interpretation or determination the appeal is taken.
B. 
Public projects and improvements.
[Amended 12-14-2016 by L.L. No. 5-2016]
(1) 
The Board shall decide any question as to the proper application of this chapter to public and quasi-public projects and improvements under the balancing of interests test set forth in Matter of County of Monroe, 72 N.Y.2d 338. Upon a finding of applicability under the balancing of interests analysis, the Board may require a project or improvement proposed by a governmental agency, a quasi-governmental entity, or any person or agency acting on behalf of a governmental or quasi-governmental entity to undergo site plan review and approval and/or subdivision review and approval before the Town Planning Board. Such projects and improvements include those:
(a) 
Located on public land or public facilities, whether financed by public or private funds; and
(b) 
Located on private land or private facilities but paid for, in part or in whole, by public funds.
(2) 
Notwithstanding the foregoing, the Town Board shall have exclusive jurisdiction over any Town sponsored public and quasi-public projects and improvements, including any special districts of the Town, or projects constructed with approval of the Town Board on Town owned or controlled property. Such projects and improvements shall not be subject to the provisions of the Town Zoning Code. The Town Board may refer such matters to the Planning Board for its review and recommendations.
C. 
Use variances. The Zoning Board of Appeals, on appeal from the decision or determination of the administrative officer charged with the enforcement of this chapter, shall have the power to grant use variances, as defined in the New York State Town Law. No such use variance shall be granted by the Board of Appeals without a showing by the applicant that zoning regulations and restrictions have caused unnecessary hardship. In order to prove such unnecessary hardship the applicant shall demonstrate to the Zoning Board of Appeals for each and every permitted use under the zoning regulations for the particular district where the property is located that:
(1) 
The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;
(2) 
The alleged hardship relating to the property in question is unique and does not apply to a substantial portion of the district or neighborhood;
(3) 
The requested use variance, if granted, will not alter the essential character of the neighborhood; and
(4) 
The alleged hardship has not been self-created.
D. 
Use variance approval and conditions. In granting a use variance the Zoning Board of Appeals 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 health, safety and welfare of the community. The Board may grant approval of a use variance on such conditions as the Board may find reasonable and necessary to preserve and protect the character of the neighborhood and the health, safety and welfare of the community. Said 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 use variance may have on the neighborhood or community.
E. 
Area variances. The Zoning Board of Appeals shall have the power, upon an appeal from a decision or determination of the administrative officer charged with the enforcement of this chapter, to grant area variances as defined in the Town Law. In making its determination, 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:
(1) 
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;
(2) 
The benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;
(3) 
The requested area variance is substantial;
(4) 
The proposed variance will have an adverse effect or impact on the physical or environment conditions in the neighborhood or district; and
(5) 
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.
F. 
Area variance approval and conditions. In granting an area variance the Zoning Board of Appeals 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 health, safety and welfare of the community. The Board may grant approval of an area variance on such conditions as the Board may find reasonable and necessary to preserve and protect the character of the neighborhood and the health, safety and welfare of the community. Said 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 area variance may have on the neighborhood or community.
G. 
Applications for special use permit, site plan, subdivision and land division. Pursuant to §§ 274-a, Subdivision 3, 274-b, Subdivision 3, and 277, Subdivision 3, of the New York State Town Law, nothing herein shall be construed to prevent an applicant for special use permit, site plan, subdivision or land division approval from submitting an application for variance approval without first obtaining a decision or determination from the Town Building Inspector or Town Zoning Administrator.
H. 
Fees. The application for an interpretation or variance by the Zoning Board of Appeals pursuant to this chapter shall be accompanied by a fee that shall be fixed, from time to time, by the Town Board by resolution.
I. 
Review. Any person aggrieved by any decision of the Zoning Board of Appeals may apply to the Supreme Court for review pursuant to § 267-c of the Town Law.

§ 128-91 (Reserved)