[Amended 10-18-2011 by L.L. No. 4-2011]
The Board of Appeals shall have all the powers and duties prescribed
by statute 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 Board of Appeals that is conferred
by law.
A.
Appeals. The Zoning Board of Appeals shall hear and decide appeals
from and review any order, requirement, decision or determination
of the Building Inspector or such other official charged with the
enforcement of this chapter. The Board of Appeals shall not hear any
appeal from nor review any order, determination, requirement, decision
or revocation of the Building Inspector where such order, determination,
requirement, decision or revocation has been directed by the Village
Board. In addition, the Board of Appeals may not waive the requirement
for site development plan application as required in any part of this
chapter.
B.
Interpretation. On appeal from an order, requirement, decision or
determination made by an administrative official or on request by
an official, board or agency of the Village, the Zoning Board of Appeals
shall decide any of the following questions:
(1)
Determination of 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.
C.
Variances. On appeal from an order, requirement, decision or determination
made by the Building Inspector, or on referral of an applicant to
the Board of Appeals by an approving agency acting pursuant to this
chapter, the Board of Appeals is authorized to grant variances as
follows:
[Amended 6-13-2017 by L.L. No. 5-2017]
(1)
Area
variances.
(a)
The Zoning Board of Appeals shall have the power, upon an appeal
from a decision or determination of the administrative official charged
with the enforcement of this chapter, to grant area variances. "Area
variances" shall mean the authorization by the Zoning Board of Appeals
for the use of land in a manner which is not allowed by the dimensional
or physical requirements of the applicable zoning regulations.
(b)
In making its determination, the Zoning Board of Appeals shall take
into consideration the benefit to the applicant if the variance is
granted, as weighed against the detriment to the health, safety and
welfare of the neighborhood or community by such grant. In making
such determination, the Board shall also consider:
[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; and
[5]
Whether the alleged difficulty was self-created; which consideration
shall be relevant to the decision of the Board of Appeals, but shall
not necessarily preclude the granting of the area variance.
(c)
The Board of Appeals, 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
variances.
(a)
The 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. "Use variance"
shall mean the authorization by the Zoning Board of Appeals for the
use of land for a purpose which is otherwise not allowed or is prohibited
by the applicable zoning regulations.
(b)
No such use variance shall be granted by a Board of Appeals without
a showing by the applicant that applicable zoning regulations and
restrictions have caused unnecessary hardship. In order to prove such
unnecessary hardship, the applicant shall demonstrate to the Board
of appeals that for each and every permitted use under the zoning
regulations for the particular district where the property is located:
[1]
The applicant cannot realize a reasonable return, provided that lack
of return is substantial as demonstrated by competent financial evidence;
[2]
That 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]
That the requested use variance, if granted, will not alter the essential
character of the neighborhood; and
[4]
That the alleged hardship has not been self-created.
(c)
The Board of Appeals, in the granting of use variances, shall grant
the minimum variance that it shall deem necessary and adequate to
address the unnecessary hardship proved 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.
D.
The Board of Appeals shall, in granting of both use variances and
area variances, have the authority to impose such reasonable conditions
and restrictions as are directly related to and incidental to the
proposed use of the property, and/or the period of time such variance
shall be in effect. Such conditions shall be consistent with the spirit
and intent of this chapter and shall be imposed for the purpose of
minimizing any adverse impact such variance may have on the neighborhood
or community.
E.
Variances granted by the Zoning Board of Appeals relative to nonconforming
uses shall be considered a conditional use subject to final authorization
and site plan approval by the Planning Board.
F.
The Board of Appeals, after a public hearing, shall have the power
to direct the Building Inspector to issue a building permit, certificate
of occupancy or certificate of use, as the case may be, subject to
other applicable laws, codes, rules and regulations.
[Amended 10-18-2011 by L.L. No. 4-2011]
A.
The Board of Appeals may adopt rules and regulations with respect
to procedure before it and with respect to any subject matter over
which it has jurisdiction, subject to approval of the Village Board.
Such regulations shall include provisions for conduct of meetings,
notification of parties, form of applications and filing of decisions.
B.
Public hearing. The Zoning Board of Appeals shall not decide upon
any appeal for a variance or interpretation of this chapter 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 Village at least 10 days before the
date of such hearing. In addition to such published notice, the applicant
shall cause such notice to be mailed at least 10 days before the hearing
to all owners of property which lie within 300 feet of any lot line
of the property for which relief is sought. Such notice shall be sent
by regular first class mail with a certificate of mailing and the
Board may inspect such certificates to assure proper notification.
The certificates of mailing shall be submitted to the clerk of the
Zoning Board Appeals at least five days in advance of the hearing.
(1)
The names of said owners shall be taken as they appear on the last
completed tax roll of the Village.
(2)
Provided that due notice shall have been published and that there
shall have been substantial compliance with the remaining provisions
of this section, 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.
C.
Application and fee. All appeals and applications made to the Zoning
Board of Appeals shall be in writing on the forms approved and shall
be accompanied by a fee as determined in the Schedule of Fees, as
may be adopted from time to time by resolution of the Village Board.
The applicant shall pay all the necessary costs of advertising and
holding a public hearing.
[Amended 6-13-2017 by L.L. No. 5-2017]
D.
Required notification of County Planning Department. Should any appeal
affect land within a distance of 500 feet of the boundary of any other
municipality; the boundary of any existing or proposed state or county
park or other recreation area; the right-of-way of any state parkway,
thruway, expressway or other controlled access highway or county road
or parkway; the right-of-way of any stream or drainage channel owned
by the county or for which the county has established channel lines;
or the boundary of any county- or state-owned land on which a public
building or institution is located, then a copy of such appeal, accompanied
by the notice of the public hearing, shall be forwarded to the Orange
County Planning Department by the Secretary of the Zoning Board of
Appeals for review in accordance with the provisions of Article 12B,
§§ 239-l and 239-m of the General Municipal Law of
the State of New York at least 10 days prior to the public hearing.
No action shall be taken by the Zoning Board of Appeals until the
county's recommendations have been received or 30 days have elapsed
after such referral has been made.
E.
State Environmental Quality Review Act. Actions of the Zoning Board
of Appeals shall be subject to the procedures under the State Environmental
Quality Review Act (SEQRA). The Board shall coordinate such SEQRA
procedures and shall include a summary of all pertinent data in its
findings, upon which a determination is made.
F.
Expiration and extension. Unless construction is commenced and diligently
pursued within 18 months of the date of the granting of the application
for a variance shall expire. The Zoning Board of Appeals may extend
the variances granted for an additional twelve-month period for good
cause shown. Any such application for an extension shall be upon the
same notice as is otherwise required for a grant of a variance in
the first instance but may be made upon letter of application to the
Board setting for the reasons for the extension request.
G.
Form of decision. Every decision of the Zoning Board of Appeals shall
be recorded in accordance with standard forms adopted by the Board.
Every decision of said Board shall be by resolution, and each such
resolution shall be filed in the office of the Village Clerk within
five days of its adoption with a copy mailed to the applicant and
a copy provided to the Building Inspector.
