Pursuant to the provisions of the New York State Town Law, a
Zoning Board of Appeals (ZBA) is hereby established in the Town of
Delaware. The ZBA shall perform all the duties and have all the powers
prescribed by the laws of the State of New York and as herein provided.
A.
Membership. The Zoning Board of Appeals shall consist of five members
to be appointed by the Town Board. The terms of the initial appointees
shall be for one, two, three, four and five years from and after the
date of appointment. Their successors, including such additional members
as may be appointed by the Town Board, shall be appointed for the
term of five years after the expiration of the terms of their predecessors
in office.
B.
Vacancies. Appointments to fill vacancies shall be for the unexpired
term of the member or members whose term or terms become vacant. Such
appointment to fill vacancies shall be made in the same manner as
the original appointment. The Zoning Board of Appeals may continue
to legally operate while vacancies are waiting to be filled, provided
there are enough members to constitute a quorum.
C.
Quorum. Three members of the Zoning Board of Appeals shall, regardless
of the number of members at a given point in time, be a quorum for
purposes of conducting any business. The concurring vote of three
of the members of the ZBA shall be necessary to reverse any order,
requirement, decision or determination of the enforcement officer
or to decide in favor of the appellant any matter upon which it is
required to pass under the terms of this chapter or to effect any
variation of this chapter.
The Zoning Board of Appeals (ZBA) shall have the powers and
duties authorized by the New York State Town Law and shall have the
following specific powers and duties:
A.
Orders, requirements, decisions, interpretations and determinations.
The ZBA may reverse or affirm, wholly or partly, or may modify the
order, requirement, decision, interpretation or determination appealed
from, and shall make such order, requirement, decision, interpretation
or determination as in its opinion ought to have been made in the
matter by the administrative official or body charged with the enforcement
of this chapter, and to that end shall have all the powers of the
administrative official or body from whose order, requirement, decision,
interpretation or determination the appeal is taken.
B.
Area variances. The ZBA shall have the power, upon an appeal from
a decision or determination of the administrative official or body
charged with the enforcement of this chapter, to grant area variances
as defined herein.
C.
Use variances. The ZBA shall have the power, upon an appeal from
a decision or determination of the administrative official or body
charged with the enforcement of this chapter, to grant use variances
as defined herein.
D.
Interpretations. The ZBA shall, upon request from or appeal of a
decision by the Building Inspector or any administrative body of the
Town of Delaware, including the Town Board, decide any question involving
the interpretation of any provision of this chapter, including determination
of the exact location of any district boundary if there is uncertainty
with respect thereto.
The Zoning Board of Appeals (ZBA) shall act in strict accordance
with the procedure specified by the New York State Town Law and by
this chapter. All appeal, variance and interpretation applications
made to the ZBA shall be in writing on forms prescribed by the ZBA
or provided for herein. Every application shall refer to the specific
provision of the law involved and shall exactly set forth the interpretation
that is claimed, the use which is involved or sought, or the details
of the variance that is applied for, and the grounds on which it is
claimed that the variance should be granted, as the case may be. Every
decision of the ZBA shall be by resolution, each of which shall contain
a full record of the findings of the ZBA in the particular case.
A.
Any property owner, tenant or representative thereof may, in appealing
an administrative decision of the Town of Delaware with respect to
this chapter, request a variance from its literal terms. Application
for a variance may be made concurrently with application for a building
permit or special use/site plan and shall be delivered to the Building
Inspector or Planning Board, respectively, who shall then, in acting
upon the application, refer the matter to the Zoning Board of Appeals
(ZBA) for a decision on the variance request. This shall not, however,
preclude an applicant whose permit request has been denied from subsequently
requesting a variance in conjunction with an appeal of such action
if the appeal has been timely filed.
B.
Two types of variances may be granted by the ZBA – area variances
and use variances. Area variances involve relief from dimensional
or other requirements for existing uses or uses allowed within the
district under the terms of this chapter. Use variances involve a
use of land not allowed in a district under the terms of this chapter.
Each of the following findings of fact shall be made by the ZBA prior
to granting such variances.
(1)
Area variance.
(a)
Definition. "Area variance" shall mean the authorization by
the ZBA for the use of land in a manner which is not allowed by the
dimensional or topographical requirements of this chapter.
(b)
Determination. The ZBA, on appeal from an administrative decision
or determination of the Town of Delaware with respect to this chapter,
shall have the power to grant variances from the area or dimensional
requirements of this chapter. In making its determination to grant
area variances, the ZBA 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 ZBA shall
also consider:
[1]
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.
[2]
Whether the benefit sought by the applicant can be achieved
by some method, feasible for the applicant to pursue, other than an
area variance.
[3]
Whether the requested area variance is substantial.
[4]
Whether the proposed variance will have an adverse effect or
impact on the physical or environmental conditions in the neighborhood
or district.
[5]
Whether the alleged difficulty was self-created, which consideration
shall be relevant to the decision of the ZBA but shall not necessarily
preclude the granting of the area variance.
(c)
Minimum variance. The ZBA, in the granting of area variances,
shall grant the minimum variance that it shall deem necessary and
adequate and at the same time preserve and protect the character of
the neighborhood and the health, safety and welfare of the community.
(2)
Use variance.
(a)
Definition. "Use variance" shall mean the authorization by the
ZBA for the use of land in a manner or for a purpose which is otherwise
not allowed or is prohibited by the applicable regulations of this
chapter.
(b)
Determination. The ZBA, on appeal from an administrative decision
or determination of the Town of Delaware with respect to this chapter,
shall have the power to grant use variances, authorizing a use of
the land which otherwise would not be allowed or would be prohibited
by the terms of this chapter. No such use variance shall be granted
by the ZBA without a showing by the applicant that the applicable
regulations and restrictions of this chapter have caused unnecessary
hardship. In order to prove such unnecessary hardship, the applicant
shall demonstrate to the ZBA that:
[1]
Under the applicable regulations of this chapter, the applicant
is deprived of all economic use or benefit from the property in question,
which deprivation must be established 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.
[4]
The alleged hardship has not been self-created.
(c)
Minimum variance. The ZBA, in the granting of use variances,
shall grant the minimum variance that it shall deem necessary and
adequate to address the unnecessary hardship proven by the applicant
and at the same time preserve and protect the character of the neighborhood
and the health, safety and welfare of the community.
(3)
Imposition of conditions. The ZBA shall, in the granting of both
use variances and area variances, have the authority to impose such
reasonable conditions and restrictions as are directly related to
and incidental to the proposed use of the property or the period of
time such variance shall be in effect. Such conditions shall be consistent
with the spirit and intent of this chapter, and shall be imposed for
the purpose of minimizing any adverse impact such variance may have
on the neighborhood or community.
A.
Interpretations. The Town Board, Building Inspector or Planning Board
of the Town of Delaware may request the Zoning Board of Appeals (ZBA)
to decide any question involving the interpretation of any provision
of this chapter and shall refer such other matters to the ZBA as it
is required to decide by the provisions of this chapter. The ZBA's
rules and regulations shall govern these matters. All matters to be
referred to the ZBA in such circumstances shall be in writing to the
ZBA's Secretary and shall be acted on within 90 days of the Secretary's
receipt of the same.
B.
Appeals from administrative acts. Any property owner, tenant, representative
thereof or other person aggrieved by an administrative act of the
Town of Delaware with respect to this chapter, who believes such decision
to be in error, may appeal to the ZBA.
(1)
Administrative act. An administrative act shall include any order,
requirements, decision, interpretation or determination made by the
Building Inspector, the Town Board or the Planning Board. The ZBA
may reverse or affirm, wholly or partly, or may modify the order,
requirement, decision, interpretation or determination as in its opinion
ought to be made in the matter, and to that end shall have all the
powers of the official or body from whom the appeal is taken.
(2)
Time for appeal. An appeal must be made to the ZBA within 60 days
after the filing of any order, requirements, decision, interpretation
or determination made by the Building Inspector, the Town Board or
the Planning Board. The applicant must file a signed notice of appeal
with the administrative official or body from whom the appeal is taken
and with the Secretary of the Board of Appeals. Such notice shall
be made on the forms provided for that purpose.
(3)
Application to ZBA. The administrative official from whom the appeal
is taken shall be responsible, at the direction of the ZBA, for providing
any applicant with the proper forms and for instructing the parties
concerned on the proper manner for completing and filing said forms.
All information required thereon shall be complete before an appeal
is considered filed. Six copies of the proper appeal form shall be
filed with the ZBA.
A.
Timing and public notice. The Zoning Board of Appeals (ZBA) shall
schedule a hearing on all appeals or applications within 62 days of
the filing of the appeal or application. Public notice of the hearing
shall be given at least five days prior to the date thereof by publication
in a newspaper of general circulation in the Town. The cost of sending
or publishing any notices relating to any appeal or application shall
be borne by the appealing party and shall be paid to the ZBA prior
to the hearing.
B.
General conduct of hearing. Any party may appear in person or by
agent or by attorney. Irrelevant or unduly repetitious evidence or
cross-examination may be excluded. Except as otherwise provided by
statute, the burden of proof shall be on the party who initiated the
proceedings. No decision, determination or order shall be made except
upon consideration of the record as a whole or such portion thereof
as may be cited by any party to the proceeding and as supported by
and in accordance with substantial evidence.
C.
Rules of evidence. Unless otherwise provided by any statute, the
ZBA need not observe the rules of evidence observed by courts but
shall give effect to rules of privilege recognized by law. Objections
to evidentiary offers may be made and shall be noted in the record.
Subject to these requirements, the ZBA may, for the purpose of expediting
a hearing and when the interests of parties will not be substantially
prejudiced thereby, adopt procedures for the submission of all or
part of the evidence in written form.
D.
Records and evidence. All evidence, including records and documents
in the possession of the ZBA or parties to the hearing, of which the
former desires to avail itself, shall be made a part of the record,
and all such documentary evidence may be received in the form of copies
or excerpts or by incorporation by reference. In case of incorporation
by reference, the materials so incorporated shall be available for
examination by the parties before being received in evidence.
E.
Cross-examination. A party shall have the right of cross-examination.
F.
Judicial notice. Official notice may be taken of all facts of which
judicial notice could be taken and of other facts within the specialized
knowledge of the ZBA. When official notice is taken of a material
fact not appearing in the evidence in the record and of which judicial
notice could be taken, every party shall be given notice thereof and
shall, on a timely request, be afforded an opportunity prior to decision
to dispute the fact or its materiality.
Upon a motion initiated by any member and adopted by unanimous
vote of the members present, but not less than a majority of all the
members, the Zoning Board of Appeals (ZBA) may review at a rehearing
any order, decision or determination of the ZBA not previously reviewed.
Notice shall be given as upon an original hearing. Upon such hearing — and
provided that it shall appear that no vested rights due to reliance
on the original order, decision or determination will be prejudiced
thereby — the ZBA may, upon concurrence of all the
members present, reverse, modify or annul its original order, decision
or determination. Requests for rehearing, however, shall be made within
30 days of the original order, decision or determination.
At least five days before any hearing on any appeal or application,
the Zoning Board of Appeals (ZBA) shall mail notices thereof to the
parties, to the regional state park commission having jurisdiction
over any state park or parkway within 500 feet of the property affected
by the appeal or application, and to the Sullivan County Department
of Planning and Economic Development, as required by § 239-m
of the New York State General Municipal Law, which notice shall be
accompanied by a full statement of the matter under consideration
as defined by the said § 239-m.
A.
County action.
(1)
Disapproval or modification recommendation. If within 30 days after
receipt of a full statement of such referred matter the County Planning
Department recommends disapproval or modification of the proposal,
the ZBA shall not act contrary to such recommendation except by a
vote of a majority plus one of all the members thereof and after adoption
of a resolution fully setting forth the reasons for such contrary
action. The Chairperson shall read the report of the County Planning
Department at the public hearing on the matter under review.
(2)
Nonaction. If the County fails to report within such period of 30
days, or such longer period as may have been agreed upon by it and
the ZBA, the ZBA may act without such report.
(3)
Receipt prior to final action. Any County Planning Department report received after 30 days or such longer period as may have been agreed upon, but two or more days prior to final action by the ZBA, shall be subject to the provisions of § 220-74A.
(4)
Notice of ZBA decision to County. Within 30 days after final action
by the ZBA, the ZBA shall file a report of the final action with the
County Planning Department, and such report shall include a copy of
any resolution adopted for action contrary to the County recommendation.
B.
Referral to Town Planning Board. The ZBA may also refer matters to
the Town of Delaware Planning Board for review and recommendation
and defer any decision thereon for a period of not more than 30 days
pending a report from the Planning Board.
A.
Time of decision. Decisions by the Zoning Board of Appeals (ZBA)
shall be made within 62 days from the date of the final hearing. The
time within which the ZBA must render its decision may be extended
by mutual consent of the applicant and the ZBA.
B.
Written decision. The final decision on any matter before the ZBA
shall be made by written order signed by the Chairperson. Such decision
shall state the findings of fact which were the basis for the ZBA's
determination. The ZBA may reverse or affirm, wholly or partly, or
may modify the order or requirement of the administrative official
appealed from. The decision shall also state any conditions and safeguards
necessary to protect the public interest.
C.
Guidance of decision. The ZBA, in reaching said decision, shall be
guided by standards specified herein as well as by the community goals
and policies as specified in this chapter and the Town Master Plan.
The findings of the ZBA and the supporting facts shall be enumerated
in detail, regardless of whether it is based on evidence submitted
or on the personal knowledge of the ZBA.
Unless otherwise specified, any order or decision of the Zoning
Board of Appeals (ZBA) for a permitted use shall expire if a building
or occupancy permit for the use is not obtained by the applicant within
90 days from the date of the decision; however, the ZBA may extend
this time an additional 90 days.
Any decision of the Zoning Board of Appeals (ZBA) shall be filed
in the office of the Town Clerk within five business days after the
day such decision is rendered and shall be made public record. The
date of filing of each decision shall be entered in the official records
and minutes of the ZBA.
Copies of the decision shall be forwarded to the applicant, the Town Planning Board and the County Planning Department when referral to the County Planning Department is required in the particular case. (See § 220-74A for details of notice to the County.) A certified copy of the ZBA's decision, including all terms and conditions, shall be transmitted to the Town Building Inspector and shall be binding upon and observed by him, and he shall fully incorporate such terms and conditions of the same in the permit to the applicant or appellant whenever a permit is authorized by the ZBA.
The Zoning Board of Appeals (ZBA) is hereby authorized to adopt
rules and regulations for the conduct of its business consistent with
this chapter and state statutes.
A.
Application forms. All applications and appeals made to the Board
of Appeals shall be in writing on forms prescribed by the Zoning Board
of Appeals (ZBA) and signed by the applicant. Every application or
appeal shall refer to the specific provision of this chapter involved
and shall exactly set forth the interpretation that is claimed, the
plans associated with and the details of any variance that is applied
for.
B.
Record of administrative action. When a notice of appeal in any case
where a permit or action had been granted or denied by the Building
Inspector, Planning Board or Town Board shall be filed, the applicable
administrative official shall forthwith transmit to the ZBA all papers
constituting the record upon which the action appealed from was taken
or, in lieu thereof, certified copies of said papers. Also, it shall
be proper for the administrative entity to recommend to the ZBA a
modification or reversal of its action in cases where it believes
substantial justice requires the same but where the entity has not
itself sufficient authority to grant the relief sought.
An appeal shall stay all proceedings in furtherance of the action
appealed from unless the acting administrative entity certifies to
the Zoning Board of Appeals (ZBA), after the notice of appeal shall
have been filed, that by reason of facts stated in the certificate
a stay would, in its 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 ZBA or the Supreme Court
on application, on notice to the administrative entity and on due
cause shown.
Any person aggrieved by a decision of the Zoning Board of Appeals
(ZBA) may apply to the Supreme Court for review by proceedings under
Article 78 of the Civil Practice Law and Rules. Such proceedings must
be instituted within 30 days after the filing of a decision in the
office of the Town Clerk.
Whenever the Zoning Board of Appeals (ZBA), after hearing all
the evidence presented upon an application or appeal under the provisions
of this chapter, denies the same, the ZBA shall refuse to hold further
hearings on the said or a substantially similar application or appeal
by the same applicant, his successor or assign for a period of one
year, unless the ZBA shall find and determine from the information
supplied by the request for a rehearing that changed conditions have
occurred relating to the promotion of the public health, safety, convenience,
comfort, prosperity and general welfare and that a reconsideration
is justified.
The applicant shall submit all documentation necessary to demonstrate
compliance with the New York State Environmental Quality Review Act,
and the Zoning Board of Appeals (ZBA) shall take all required actions
relative to the same prior to acting on the special use/site plan.
A.
It is
sometimes difficult to maintain a quorum on the Zoning Board of Appeals
(ZBA) because members are ill or on extended vacation or find they
have a conflict-of-interest situation on a specific matter before
such Board. In such instances, official business cannot be conducted,
which may delay or impede adherence to required time lines. The use
of alternate members in such instances would avoid such difficulties.
B.
ALTERNATE MEMBER
MEMBER
TOWN BOARD
ZONING BOARD OF APPEALS
As used
in this section, the following terms shall have the meanings indicated:
An individual appointed by the Town Board to serve on the
Zoning Board of Appeals when a regular member is unable to participate
on an appeal or matter before the Board.
An individual appointed by the Town Board to serve on the
Zoning Board of Appeals according to the provisions of applicable
law, local law or ordinance pursuant to which the Zoning Board of
Appeals was established.
The duly constituted Town Board of the Town of Delaware.
The duly constituted Zoning Board of Appeals of the Town
of Delaware.
C.
Individuals
appointed as Alternate Members would serve when members are absent
or unable to participate on an application or matter before the Zoning
Board of Appeals.
D.
Alternate Members of the Zoning Board of Appeals may be appointed
by the Town Board for a term of two years, with the terms to expire
on December 31 of the second year after the date of their appointment.
E.
The Chairperson of the Zoning Board of Appeals shall designate an
Alternate Member to substitute for a Member when such Member is absent
or unable to participate on an application or matter before the Board.
When so designated, the Alternate Member shall possess all powers
and responsibilities of such Member. Such designation shall be entered
into the minutes of the initial Zoning Board of Appeals meeting at
which the substitution is made.
F.
Alternate Members shall regularly attend the scheduled meetings and/or
work sessions of the Zoning Board of Appeals so as to be available
for designation when required and familiar with the applications and/or
matters pending before the Board.
G.
Alternate Members shall serve without compensation.
H.
All provisions of state law relating to Zoning Board of Appeals member
eligibility, vacancy in office, removal, compatibility of office and
service on other boards, as well as provisions of any state or local
law or ordinance relating to training and continuing education, shall
also apply to Alternate Members.
I.
Supersession of New York State Town Law. This section is adopted
pursuant to the provisions of § 10 of the New York State
Municipal Home Rule Law and § 10 of the New York State Statute
of Local Governments. It is the intent of the Town Board, pursuant
to § 10 of the New York State Municipal Home Rule Law, to
supersede any inconsistent provisions of § 267 of the New
York State Town Law relating to the appointment of members and alternate
members to Town Zoning Boards of Appeals.
