A.
Appointment of members. The Mayor shall appoint a
Zoning Board of Appeals consisting of five members with the approval
of the Common Council. The Mayor shall designate the Chairperson thereof
with the approval of the Common Council. In the absence of the Chairperson
the Board of Appeals may designate a member to serve as Acting Chairperson.
In making such appointments, the Mayor may require Board of Appeals
members to complete training and continuing education courses in accordance
with any requirements established by the Common Council.
B.
Appropriations and expenses. The members of the Zoning
Board of Appeals shall receive no compensation for their services
as members of the Board of Appeals. The Board of Appeals shall have
the power and authority to employ experts, clerks and a secretary,
and to pay for their services, and to provide for such other expenses
as may be necessary and proper, not exceeding in all the appropriation
that may be made therefor by the Common Council, excepting and providing
that all salaries shall be fixed and determined by the Common Council.
C.
No person who is a member of the Common Council shall
be eligible for membership on the Zoning 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 of Appeals, the appointment of members to the
Board of Appeals shall be for terms so fixed that one member's term
shall expire at the end of the official year in which such members
were initially appointed. The remaining members' terms shall be so
fixed that one member's term shall expire a the end of each official
year thereafter. At the expiration of each original member's appointment,
the replacement member shall be appointed for a term which shall be
equal in years to the number of members of the Board of Appeals.
E.
Terms of members now in office. Members now holding
office for terms which do not expire at the end of the official year
shall, upon the expiration of their term, hold office until the end
of the official year and their successors shall then be appointed
for terms which shall be equal in years to the number of members of
the Board of Appeals.
F.
Vacancy in office. If a vacancy shall occur otherwise
than by expiration of term, the Mayor shall appoint the new member
for the unexpired term with the approval of the Common Council.
G.
Removal of members. The Mayor shall have the power
to remove, after public hearing, any member of the Zoning Board of
Appeals for cause. Any Board of Appeals member may be removed for
noncompliance with minimum standards relating to meeting attendance
and training as established by the Common Council.
H.
Compatibility of offices. The City officials or employees
on the Board of Appeals shall not, by reason of such membership, forfeit
their right to exercise the powers, perform the duties or receive
the compensation of the City office or position held by them during
such membership. No City officer or employee shall be appointed to
the Zoning Board of Appeals in the event such officer or employee
cannot carry out the duties of his or her position without a conflict
in the performance of his or her duties as a member of the Board of
Appeals.
I.
Chairperson duties and quorum. All meetings of the Board of Appeals shall be held at the call of the Chairperson and at such other times as the Board may determine. The Chairperson or, in his or her absence, the Acting Chairperson may administer oaths and compel the attendance of witnesses. A quorum shall consist of three members, subject to the restrictions contained in § 475-56D of this chapter.
A.
AREA VARIANCE
USE VARIANCE
Definitions. As used in this section, the following
terms shall have the meaning indicated:
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 this chapter.
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 this chapter.
B.
Orders, requirements, decisions, interpretations, and determinations.
Upon a duly taken appeal, the Board of Appeals may reverse or affirm,
wholly or partly, or may modify the order, requirement, decision,
interpretation or determination made pursuant to this chapter, 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 charged with the enforcement of this chapter and to that
end shall have all the powers of the administrative official from
whose order, requirement, decision, interpretation or determination
the appeal is taken. This subsection shall not apply to any decision
or determination of the Commissioner of Public Works, Deputy Commissioners
of Public Works, Building Inspector, Fire Inspector or any Code Enforcement
Officer to file charges in Middletown City Court alleging a violation
of this chapter, and no appeal may be taken to the Board of Appeals
challenging any such decision or determination.
[Amended 5-20-2014]
C.
Use variances. The Zoning Board of Appeals, on appeal
from the decision or determination of the administrative official
charged with the enforcement of this chapter, shall have the power
to grant use variances, as defined herein.
(1)
No use variance shall be granted by the 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:
(a)
The applicant cannot realize a reasonable return,
provided that lack of return is substantial as demonstrated by competent
financial evidence; and
(b)
The alleged hardship relating to the property
in question is unique and does not apply to a substantial portion
of the district or neighborhood; and
(c)
The requested use variance, if granted, will
not alter the essential character of the neighborhood; and
(d)
The alleged hardship has not been self-created.
(2)
The Board of Appeals, in 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.
D.
Area variances. 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 as defined herein.
(1)
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 whether:
(a)
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; and
(b)
The benefit sought by the applicant can be achieved
by some method feasible for the applicant to pursue, other than an
area variance; and
(c)
The requested area variance is substantial;
and
(d)
The proposed variance will have an adverse effect
or impact on the physical or environmental conditions in the neighborhood
or district; and
(e)
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.
(2)
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
E.
Imposition of conditions. The Board of Appeals 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. 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.
Meetings, minutes, and records. Meetings of the Zoning
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.
B.
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 Clerk of the Common Council within five business days and shall
be a public record.
[Amended 1-7-2008]
C.
Assistance. The Board of Appeals shall have the authority
to call upon any department, agency or employee of the City for such
assistance as shall be deemed necessary and as shall be authorized
by the Common Council. Such department, agency or employee may be
reimbursed for any expenses incurred as a result of such assistance.
D.
Hearing appeals. Unless otherwise provided by this
chapter, the jurisdiction of the 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 the administrative official charged with the enforcement of
this chapter. The concurring vote of a majority of the members of
the 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 City.
E.
Time of appeal. Such appeal shall be taken within
60 days after the filing of any order, requirement, decision, interpretation
or determination of the administrative official charged with the enforcement
of this chapter by filing with such administrative official and with
the Board of Appeals a notice of appeal on forms prescribed by the
Board, specifying the grounds thereof and the relief sought. The administrative
official from whom the appeal is taken shall forthwith transmit to
the Board of Appeals all the papers constituting the record upon which
the action appealed from was taken. All appeals shall be accompanied
by a fee of $100.
F.
Stay upon appeal. An appeal shall stay all proceedings
in furtherance of the action appealed from, unless the administrative
official charged with the enforcement of this chapter, from whom the
appeal is taken, certifies to the Board of Appeals, after the notice
of appeal shall have been filed with the administrative official,
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 Board of Appeals or by a court of
record on application, on notice to the administrative official from
whom the appeal is taken and on due cause shown.
G.
Hearing an appeal. The Board of Appeals shall fix
a reasonable time for the hearing of the appeal or other matter referred
to it and give public notice of such hearing by publication in the
official newspaper of the City at least five days prior to the date
thereof. 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 of Appeals prior
to the hearing of such appeal. Upon the hearing, any party may appear
in person, or by agent or attorney.
H.
Additional notice. In addition to such published notice,
the Board of Appeals shall cause notice to be given of the substance
of every appeal for a use variance or an area variance, together with
notice of the hearing thereon, by causing notices thereof to be mailed
by postal card or other means 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),
and all other owners within 300 feet, or such additional distance
as the Board of Appeals may deem advisable, from the exterior boundaries
of the land involved in such appeal, as the names of said owners appear
on the last completed assessment roll of the City. It shall be the
appealing party's responsibility to issue any or all of the notices
required by this section. Provided that due notice has been published
as above required and that there shall have been substantial compliance
with the remaining provisions of this subsection, the failure to give
notice in exact conformance herewith shall not be deemed to invalidate
action taken by the Board of Appeals in connection with the order,
decision or determination of any appeal.
I.
Time of decision. The Board of Appeals shall decide
upon the appeal within 62 days after the conduct of said hearing and
after the applicant has submitted all supporting information required
by the Board of Appeals. The time within which the Board of Appeals
must render its decision may be extended by mutual consent of the
applicant and the Board.
J.
Filing of decision and notice. The decision of the
Board of Appeals on the appeal shall be filed in the office of the
Clerk of the Common Council within five business days after the day
such decision is rendered and a copy thereof mailed to the applicant.
[Amended 1-7-2008]
K.
Notice to park commission or planning agency. At least
five days before such hearing, the Board of Appeals shall mail notices
thereof to the regional state park commission having jurisdiction
over any state park or parkway within 500 feet of the property affected
by such appeal. At least five days before such hearing, the Board
of Appeals shall mail notices thereof to the Orange County Planning
Department for review in accordance with the provisions of §§ 239-l
and 239-m of the General Municipal Law if the property affected by
such appeal lies within 500 feet of the boundary of any other municipality,
county or state park or right-of-way of any county- or state-controlled
access highway or drainage channel, or from the boundary of any county-
or state-owned land on which a public building is situated.
L.
Neighboring municipalities affected. If the property
affected by such appeal lies within 500 feet of the boundary of any
other municipality, the Clerk of the Common Council shall also transmit
to the municipal clerk of such other municipality a copy of the official
notice of the public hearing thereon not later than the day after
such notice appears in the official newspaper of the City.
[Amended 1-7-2008]
M.
Compliance with State Environmental Quality Review
Act. The Board of Appeals shall comply with the provisions of the
State Environmental Quality Review Act under Article 8 of the Environmental
Conservation Law and its implementing regulations.
N.
Notice to 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 copy of the notice
of such hearing. The Planning Board may submit to the Board of Appeals
an advisory opinion on said appeal or application at any time prior
to the rendering of a decision by the Board of Appeals.
O.
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 reviewed 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 the rights vested in persons acting
in good faith in reliance upon the reviewed order decision or determination
will not be prejudiced thereby.
P.
Expiration of variances. Unless work is commenced
and diligently prosecuted within one year of the date of the granting
of a use variance or area variance, such variance shall become null
and void.
