Town of Newburgh, NY
Orange County
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Table of Contents
Table of Contents
A. 
Establishment and membership. There shall be a Board of Appeals of seven members as set forth in § 267 of the Town Law of the State of New York (except as herein amended under the Municipal Home Rule Law). The Town Board shall appoint the members, shall designate a Chairman and may remove any member of the Zoning Board of Appeals for cause after public hearing. Pursuant to the authority granted the Town Board under the provisions of the Municipal Home Rule Law, the members of the Zoning Board of Appeals shall be appointed for a term of five years, which term of office shall expire on the 31st day of December of the fifth year of the term.
[Amended 3-20-1995 by L.L. No. 1-1995]
(1) 
Upon the death, resignation or removal of any member of the Zoning Board of Appeals who had been appointed prior to the effective date of this chapter, his/her successor or reappointment shall either:
(a) 
Fill out the time remaining until five years from the date the current member was appointed shall expire; or
(b) 
If there is less than one year remaining in said current member's term, be appointed to a full five-year term.
(2) 
Upon the expiration of the term of a member of the Zoning Board of Appeals who had been appointed prior to the effective date of this chapter, his/her reappointment or the appointment of his/her successor shall be for a term of five years.
(3) 
For all members appointed after the effective date of this chapter, if a vacancy shall occur otherwise than by expiration of the term (e.g., through death, resignation or removal from office), it shall be filled by the Town Board by appointment for the unexpired term.
B. 
Procedure. Meetings shall be held at the call of the Chairman or at other such times as the Zoning Board of Appeals may determine. A quorum shall consist of four members, but in order to reverse a decision of the Building and Code Enforcement Officer, authorize a variance or grant a special permit, an affirmative vote of at least three members shall be required. The Zoning Board of Appeals shall keep minutes of its proceedings showing the vote of each member upon each question and shall keep records of its examinations and other official actions.
The Zoning Board of Appeals shall have all the powers and duties prescribed by law and by this chapter which are more particularly specified as follows, provided that none of the following provisions shall be deemed to limit any power of the Zoning Board of Appeals that is conferred by law:
A. 
Interpretation. To determine on appeal from an order, requirement, decision or determination made by an administrative official or, on a request by any official board or agency of the Town, any of the following matters:
(1) 
The meaning of any portion of the text of this chapter or of any condition or requirement specified or made under the provisions of this chapter.
(2) 
The exact location of any district boundary shown on the Zoning Map.[1]
[1]
Editor's Note: The Zoning Map is included in the pocket at the end of this volume.
B. 
Variances.
(1) 
To authorize, upon appeal of a decision of the Building and Code Enforcement Officer and the Chairman of the Planning Board, such variances from the terms of this chapter as will not be contrary to the public interest where, owing to exceptional and extraordinary circumstances, there are unnecessary hardships or practical difficulties in the way of carrying out of the strict letter of this chapter, subject to terms and conditions to be fixed by the Zoning Board of Appeals; provided, however, that no such variance shall be granted unless the Zoning Board of Appeals finds:
(a) 
That there are special circumstances or conditions fully described in the findings of the Board applying to the land or building for which the variance is sought, which circumstances or conditions are unique to such land or building and do not apply generally to land or buildings in the neighborhood and have not resulted from any act of the appellant or applicant subsequent to the adoption of this chapter, whether in violation of the provisions hereof or not.
(b) 
That for reasons fully set forth in the findings of the Board, the aforesaid circumstances or conditions are such that the strict application of the provisions of this chapter would deprive the appellant or applicant of the reasonable use of such land or building and the granting of the variance is necessary for the reasonable use of the land or building and that the variance which is granted by the Board is the minimum variance that will accomplish this purpose.
(c) 
That the granting of the variance will be in harmony with the general purposes and intent of this chapter and will not be injurious to the neighborhood or otherwise detrimental to the public welfare.
(2) 
Where the Zoning Board of Appeals grants a use variance for a use permitted in another district, the area standards shall be that of the district in which the use is permitted. In granting any variance, the Zoning Board of Appeals shall prescribe any appropriate safeguards and conditions applying thereto that it may deem to be necessary or desirable in the public interest, and such determination shall be recorded on the building permit or the certificate of occupancy, as the case may be, issued pursuant to such variance.
C. 
Recommend zoning amendments. To call to the attention of the Planning Board conditions where the Zoning Board of Appeals finds the zoning classification of a particular property is conducive to the deprivation of the reasonable use of the land or buildings by the owners thereof and where the Zoning Board of Appeals deems the same condition to apply generally to other land or buildings in the same neighborhood or district.
D. 
Special permits. To grant special permits for uses where required in Article IV or in any other case as set forth in this chapter where the Zoning Board of Appeals finds that the proposed use complies with the following:
(1) 
General standards.
(a) 
Each special permit use shall be of such character, intensity, size and location that in general it will be in harmony with the orderly development of the district in which the property concerned is situated and will not be detrimental to the orderly development of adjacent districts.
(b) 
Each special permit use sought in a residence district shall be so located on the lot involved that it shall not impair the use, enjoyment and value of adjacent residential properties.
(c) 
The nature and intensity of a special permit use sought in a residence district and the traffic generated by it shall not be hazardous or detrimental to the prevailing residential character of the neighborhood.
(d) 
Each special permit use in a business district shall be harmonious with the district in which its location is sought, shall not create undue pedestrian or vehicular traffic hazards and shall not include any display of signs, noise, fumes or lights that will hinder normal development of the district or impair the use, enjoyment and value of adjacent land and buildings.
(2) 
Further conditions. Upon finding that such general standards and any specific standards otherwise set forth in Article IV and the district regulations of this chapter have been fully met, the Zoning Board of Appeals (ZBA) may grant such special permit and in so doing may impose any conditions that it may deem necessary to accomplish the reasonable application of said standards. The ZBA may deny any application for a special permit which, in its judgment, is not in accordance with said general or special standards. The ZBA may require as a condition of the granting of any special permit that it shall be periodically renewed, or the ZBA may grant a temporary special permit, subject to adequate guaranties that the use covered will be terminated at the end of the period specified or such extension thereof as may be granted by the ZBA, provided that any such renewal of extension shall be subject to the same procedure as specified herein for the original granting of the special permit involved and in conformity with the aforesaid general and special standards.
(3) 
Preexisting uses deemed to be conforming. Any lawful use existing at the time of the effective date of this chapter or any amendment thereof which, if newly created under this chapter, would require a special permit in the district in which it is situated may be continued and shall be deemed to be a conforming use, but any modification, change or extension thereof shall be subject to the granting of a special permit as provided in this chapter.
The powers and duties of the Zoning Board of Appeals shall be exercised with the following procedure:
A. 
Public hearings.
[Amended 4-1-2013 by L.L. No. 2-2013]
(1) 
The Zoning Board of Appeals shall not grant any appeal or variance or issue any special or temporary permit or interpretation without first holding a public hearing, notice of which hearing and of 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, notice shall be given of the substance of every appeal and variance and of every application for a special permit or interpretation, together with notice of the hearing thereon, by notices thereof being mailed at least 10 days before the date of said hearing to the owners of all property abutting that held by the applicant in the immediate area (whether or not involved in such appeal or application) and to all other owners within 500 feet, or such additional distance as the Zoning Board of Appeals may deem advisable, from the exterior boundaries of the land involved in such appeal or application, as the names of such owners appear on the last completed assessment roll of the Town. Such notice shall be by first-class mail in envelopes which have been addressed and on which required first-class postage has been paid for and affixed by the applicant, to be mailed by the Secretary of the Zoning Board of Appeals or another employee or officer of the Town, who shall complete and file an affidavit of mailing with the Board listing each address to which the notice was sent. Any or all of the notices required by this section for the Zoning Board of Appeals shall be issued by the Secretary of the Zoning Board of Appeals on order of the Zoning Board of Appeals. The notice shall identify both the street address of the lot(s) and the section, block and lot number(s) assigned on the Orange County Tax Map for the Town to the land involved in the application or appeal. An eleven-inch-by-seventeen-inch copy of the notice shall also be posted at the property for which the application is made. The notice must be posted on or near a front property line within view of the nearest adjacent street right-of-way. If the property fronts on two or more streets, notices shall be posted on all the front property lines. The notice must not obstruct traffic visibility. The applicant shall submit a notarized affidavit of posting and photograph of the posting to the Secretary of the Zoning Board of Appeals prior to or on the 10th day prior to the public hearing date. The posted notice must be maintained and updated with amended information if there is any change to the information contained in the original notice until after the public hearing is closed. An applicant shall not be deemed to have violated the requirement to maintain the notice if the notice is removed or destroyed by an unrelated party or natural force and replaced within a reasonable period of time. The notice must be removed and properly disposed of within 10 days of the close of the public hearing.
(2) 
Provided that due notice shall have been published as above set forth and that there shall have been substantial compliance with the remaining provisions of the preceding subsection, the failure to give notice in exact conformance herewith shall not be deemed to invalidate action taken by the Zoning Board of Appeals in connection with the granting of any appeal or variance or issuance of any special or temporary permit pursuant thereto.
(3) 
For those applications to the Planning Board to which the mailing and posting requirements of this section apply, the words "Planning Board" shall be substituted for "Zoning Board of Appeals."
B. 
Additional notices. Where applicable, notices shall be given as required by the General Municipal Law, §§ 239-l and 239-m.
C. 
Referral to the Planning Board. At least 10 days before the date of any public hearing, the Secretary of the Zoning Board of Appeals shall transmit to the Secretary of the Planning Board a copy of any appeal or application, together with a notice of such hearing. The Planning Board may submit to the Zoning Board of Appeals an advisory opinion on said application or appeal at any time prior to the rendering of a decision.
D. 
Expiration. Unless construction is commenced and diligently prosecuted within six months of the granting of a variance or special permit, such variance or special permit shall become null and void. The six-month period may be extended by the Board for one additional six-month period.
E. 
Forms and fees. All appeals and applications made to the Zoning Board of Appeals shall be in writing, on forms prescribed by the Board, and shall be accompanied by a fee as prescribed by Chapter 104, Fees, of this Code. Fees shall not apply to applications and requests made to the Zoning Board of Appeals by an official, board or agency of the Town.
[Amended 6-16-2014 by L.L. No. 6-2014]
F. 
Required information in appeal or application. Each appeal or application shall fully set forth the circumstances of the case. Each application for a special permit shall be accompanied by a proposed plan showing the size and location of the lot and a site plan showing the location of all buildings and proposed facilities, including access drives, parking areas, landscaping and all streets within 200 feet. Every appeal or application 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 or the use for which the special permit is sought.
G. 
Decision.
(1) 
Every decision of the Zoning Board of Appeals shall be recorded in accordance with the standard forms adopted by the Zoning Board of Appeals and shall set forth the circumstances of the case. In addition, each decision shall contain a full record of findings on which the decision is based and any 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. Every decision of the Zoning Board of Appeals shall be by resolution and shall be filed in the office of the Town Clerk by case number under one of the following headings: interpretations, variances or special permits, as the case may be.
(2) 
The Zoning Board of Appeals shall notify the Building and Code Enforcement Officer and each member of the Town Board, the Secretary of the Planning Board and the Municipal Clerk of any affected municipality given notice of the hearing as required by law of its decision in each case.
H. 
Strict construction. All the provisions of this chapter relating to the Zoning Board of Appeals shall be strictly construed. The Zoning Board of Appeals, as a body of limited jurisdiction, shall act in full conformity with all provisions of law and of this chapter and in strict compliance with all limitations contained therein; provided, however, that if the procedural requirements set forth in this chapter have been substantially observed, no applicant or appellant shall be deprived of the right of application or appeal.
I. 
Conflict with state laws. In case of conflict with state laws, particularly § 267 of the Town Law and §§ 239-l and 239-m of the General Municipal Law, any provision of this section shall be superseded by such provisions. It is intended that this section shall be interpreted to be in harmony with such state law, and any requirements set forth in this section are intended to be in addition to those required by state law.