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.
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.
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.
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:
(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.
