[Amended 9-6-1983 by L.L. No. 4-1983; 9-6-1988 by L.L. No. 15-1988; 12-19-1988 by L.L. No. 17-1988; 8-6-1990 by L.L. No. 2-1990; 4-18-2001 by L.L. No. 3-2001]
[Amended 3-23-2004 by L.L. No. 2-2004]
The Zoning Board of Appeals is hereby established in accordance with the provisions of the Town Law.
The Town Board may appoint up to three alternate members, with each such position having a term of one year, for purposes of substituting for a member(s) in the event such member(s) is absent or unable to participate because of a conflict of interest. All provisions relating to members of zoning boards of appeals, including training, continuing education, attendance and compensation, apply to alternate members.
[Amended 9-6-2008 by L.L. No. 8-2008]
The Chairman of the Zoning Board of Appeals shall determine when an alternate member shall substitute for a member on any particular application or matter before the Board. Once designated, the alternate member shall possess all the powers and responsibilities of the member being substituted for to make determinations. The minutes of the Zoning Board of Appeals shall reflect the meeting at which the substitution is made.
Editor's Note: This local law also stated that, pursuant to § 22 of the Municipal Home Rule Law, its provisions were intended to supersede any inconsistent provisions of state or local law, including Town Law §§ 267, Subdivision 11, and 271, Subdivision 15.
The Zoning Board of Appeals shall have the powers and duties prescribed by the Town Law and this chapter, including the following:
Appeals: to hear and decide appeals from and review any order, requirement, decision, and determination made by the Building Inspector or Zoning Administrator, or their respective deputies under this chapter (but no other official or board of the Town), which appeals may be taken by any person aggrieved or by any officer, department or board of the Town of Fishkill.
The Zoning Board of Appeals, upon appeal from the decision or determination of the Zoning Administrator, shall have the power to grant use variances authorizing a use of 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 Zoning Board of Appeals without a showing by the applicant that the applicable regulations and restrictions imposed by this chapter have caused unnecessary hardship. In order to prove such unnecessary hardship, the applicant shall demonstrate to the Board of Appeals compliance with each of the following criteria:
That under the applicable regulations and restrictions imposed by this chapter, the applicant is deprived of all economic use and benefit from the property in question, which deprivation must be established by competent financial evidence.
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.
That the requested use variance, if granted, will not alter the essential character of the district or neighborhood.
That the alleged hardship has not been self-created.
The Board of Appeals, in the granting of a use variance, shall grant the minimum variance that is deemed necessary and adequate to address the unnecessary hardship proven by the applicant and at the same time preserve the protect the character of the neighborhood and the health, safety and welfare of the community.
The Zoning Board of Appeals, upon appeal from the decision or determination of the Zoning Administrator, shall have the power to grant area variances from the dimensional or physical requirements of this chapter.
In making its determination, the Zoning Board of Appeals shall take into consideration the benefit to the applicant if the area 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 of Appeals shall also consider each of the following factors:
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.
Whether the benefit sought by the applicant can be achieved by some other method feasible for the applicant to pursue, other than an area variance.
Whether the requested area variance is substantial.
Whether the proposed area variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or zoning district.
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.
The Board of Appeals, in the granting of an area variance, 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.
Interpretation. The Zoning Board of Appeals shall, upon appeal from a decision by an administrative official, decide any question involving the interpretation of any provision of this chapter.
Referral to Planning Board. The Zoning Board of Appeals shall refer to the Planning Board applications for use variances and may refer to the Planning Board any other pertinent matters for review and recommendations. The Zoning Board of Appeals shall defer any decision thereon for a period of not more than 30 days pending a report from the Planning Board. Upon failure to submit such report, the Planning Board shall be deemed to have waived any rights concerning the matter being referred.
Training requirements. The State of New York has recognized the importance of training for members of the Zoning Board of Appeals in § 267 of the Town Law.
[Added 5-21-2003 by L.L. No. 2-2003]
Each member of the Zoning Board of Appeals shall be required to attend a minimum of three hours of training relevant to the responsibilities of the Board within one year of appointment to such Board, and a minimum of three hours of additional training in each calendar year succeeding the year of appointment. Prospective Board members shall be advised of these requirements.
Noncompliance with the Town's minimum requirements for training shall be a proper cause for removal from office pursuant to Town Law § 267, Subdivision 9.
The costs of training shall be a Town charge, and members of the Zoning Board of Appeals shall be reimbursed for the cost of the training, provided such training and attendant costs have been approved in advance by the Town Board.
Approved training courses. Training sessions which relate to the duties of members of the Zoning Board of Appeals may include programs offered by the New York Department of State, the New York State Association of Towns, the New York State Department of Environmental Conservation, the Dutchess County or Westchester County Planning Federations or other appropriate entities. The Town Board, after consultation with the Chairperson of the Zoning Board of Appeals, may annually designate training courses which will meet the Town's training requirements.
Notwithstanding the foregoing, the failure of a member of the Zoning Board of Appeals to obtain the required training shall not, absent Town Board action, affect that member's appointment to serve on the Board, to entertain and vote on applications or the validity of that member's acts as a Board member.
In its quasi-judicial role, the Zoning Board of Appeals shall act in strict accordance with the procedures specified by the Town Law and this chapter.
Meetings. Meetings shall be held at the call of the Chairman or at such other times as the Zoning Board of Appeals may determine. A quorum shall consist of a majority of the members. A concurring vote of a majority of the members of the Board shall be necessary to reverse a decision of the Building Inspector or the Zoning Administrator or to authorize a variance. A favorable vote of a majority plus one shall also be required if the action taken by the Zoning Board of Appeals is contrary to an advisory recommendation received from the Dutchess County Department of Planning under the provisions of § 239-m of the General Municipal Law. The Board shall keep accurate minutes of its proceedings, documenting fully all findings and showing the vote of each member upon each question. All meetings and deliberations of the Board of Appeals shall be open to the public to the extent provided in Article 7 of the Public Officers Law.
Application and fee. All appeals and applications made to the Board shall be in writing, submitted in triplicate on forms prescribed by the Board within 60 calendar days of the filing in the Town Clerk's office of any action appealed from, and shall be accompanied by the applicable fee in accordance with the fee schedule annually reviewed and established by the Town Board. Every appeal or application shall refer to the specific provision of this chapter that is involved and shall precisely set forth either the interpretation that is claimed or the details of the variance that is applied for and the ground on which it is claimed that such variance should be granted. Each application shall also comply with Article 8 of the Environmental Conservation Law (SEQRA) and 6 NYCRR 617. In addition, any application for a property connected to the municipal sewer system shall include a fully executed current certificate of sewer compliance.
[Amended 5-23-2014 by L.L. No. 3-2014]
Public notice and hearing. The Board shall fix a time and place for a public hearing on such appeal to be conducted in conformance with the requirements of § 114-2 of the Town of Fishkill Code. Notice of such public hearing shall be posted, published and mailed as required by § 114-2 before said hearing is held. The applicant for the variance shall either appear in person or be represented by an agent at said hearing. Any other interested party may appear at such public hearing in person, by attorney or other agent or submit comments, in writing, for receipt prior to the public hearing.
Proof of compliance with the notification procedures of § 114-2 shall be certified to by the Secretary or other designated Town employee. The Town shall charge the applicant either a flat rate or a stated amount per notice for satisfying this requirement.
Provided that there has been substantial compliance with this provision, the failure to give notice in exact conformance herewith shall not be deemed to invalidate an action taken by the Board of Appeals in either granting or denying an appeal for a variance from a specific provision of this chapter.
Referral. A full statement of any appeal that meets the specific referral requirements of §§ 239-l and 239-m of the General Municipal Law shall also be referred prior to the public hearing to the Dutchess County Department of Planning for its review. No action shall be taken by the Zoning Board of Appeals on such appeal until an advisory recommendation has been received from said County Planning Department or 30 calendar days have elapsed since the Planning Department received such full statement.
Decisions. Every decision of the Zoning Board of Appeals on an appeal or request shall be made within 62 calendar days of the close of the hearing by the Board, shall be recorded in accordance with standard forms adopted by the Board and shall fully set forth the circumstances of the case and contain a full record of the findings on which the decision is based, including record of compliance with the applicable provisions of SEQRA, Article 8 of the Environmental Conservation Law, and 6 NYCRR 617. Every decision shall be by resolution of the Board, with such decision being filed in the office of the Town Clerk within five business days thereof. The Board shall also notify the Zoning Administrator, the Building Inspector, the Secretary of the Planning Board and any affected municipality given notice of hearing of its decision in each case. If applicable, a report on the action shall also be filed with the Dutchess County Department of Planning.
Attachment of conditions. The Zoning Board of Appeals shall, in the granting of both use 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.
Expiration of approval. Unless construction or use is diligently commenced within one calendar year from the date of the granting of a variance, such variance shall become null and void without further hearing or action by the Zoning Board of Appeals.
Unless the Zoning Administrator or the Building Inspector finds there to be an imminent threat to either life or property, an appeal stays all proceedings in furtherance of the action which is the subject of the appeal.
Any person or persons jointly or severally aggrieved by any decision of the Zoning Board of Appeals may apply to the Supreme Court of the State of New York for relief through a proceeding under Article 78 of the Civil Practice Law and Rules of the State of New York. Such proceeding shall be governed by the specific provisions of Article 78, except that the action must be initiated as therein provided within 30 calendar days after the filing of the Board's decision in the office of the Town Clerk.