[Amended 5-8-1990; 4-13-1993 by L.L. No. 4-1993; 4-13-1999 by L.L. No.
5-1999; 6-8-1999 by L.L. No. 7-1999; 3-13-2001 by L.L. No.
2-2001; 4-9-2003 by L.L. No. 5-2003; 5-8-2007 by L.L. No.
6-2007; 10-8-2013 by L.L. No. 2-2013]
A.
The existing Board of Appeals of seven members is
hereby continued. Their successors shall be appointed in accordance
with the provisions of the Town Law. The Town Board shall designate
the Chairman from the Board of Appeals' membership.
B.
In addition to any and all other qualifications for
holding office as a member of the Zoning Board of Appeals and the
Planning Board, all members of said Boards must attend no less than
four hours of training classes offered either by the Rockland Municipal
Planning Federation, New York State Planning Federation, Orange County
Planning Federation, Pace Law School Zoning School or other course
approved by the Town Board within one year from the effective date
hereof, and complete such classes within two years from the effective
date hereof; or receive similar instruction as provided by the Town’s
Legal Counsel or a planner certified by the American Institute of
Certified Planners (AICP). Members appointed after the effective date
of this section shall be required to attend not less than four hours
of such classes within one year from the date of such appointment,
and receive certification within two years from the date of such appointment.
Recertification of all members shall be required each year thereafter
from the date of initial certification. Training received in excess
of four hours in any one year may be carried over by the member into
succeeding years. The training required by this subsection may be
waived or modified by resolution of the Town Board when, in the judgment
of the Town Board, it is in the best interest of the Town to do so.
No decision of the Zoning Board of Appeals shall be voided or declared
invalid because of a failure to comply with this requirement for training.
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 that is conferred by law.
A.
Appeals. The Board of Appeals may reverse or affirm, wholly or partly,
or may modify the order, requirement, decision, interpretation or
determination appealed from the Building Inspector, or such other
administrative official charged with enforcement of this chapter (Zoning)
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 such
ordinance or local law and to that end shall have all the powers of
the administrative official from whose order requirements, decision,
interpretation or determination from the appeal is taken. The Board
of Appeals may not waive the requirements for site development plan
application as required in any part of this chapter.
B.
Interpretation. On an appeal from an order, requirement, decision
or determination made by an administrative official or by the Building
Inspector to decide any of the following questions:
C.
Bulk or area variances.
(1)
The Board of Appeals, on appeal from the decision or determination
of the Building Inspector or an administrative official charged with
the enforcement of this chapter, or on referral of an applicant to
the Board by an approving agency acting pursuant to this chapter,
shall have the power to grant bulk or area variances.
(2)
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
this determination, the Board shall also consider:
(a)
Whether the variation is substantial;
(b)
Whether an undesirable change will be produced in the character
of the neighborhood or a detriment to properties will be created by
the granting of the area variance;
(c)
Whether the benefit sought by the applicant can be achieved
by some method, feasible for the applicant to pursue, other than a
variance;
(d)
Whether the proposed variance will have an adverse effect or
impact on the physical or environmental conditions in the neighborhood
or district; and
(e)
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.
(3)
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.
D.
Use variances.
(1)
The Board of Appeals, on appeal from the decision or determination
of the Building Inspector or an administrative official charged with
the enforcement of this chapter, or on referral of an applicant to
the Board by an approving agency acting pursuant to this chapter,
shall have the power to grant use variances.
(2)
No such use variance shall be granted 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 this chapter (Zoning) for the particular
zoning 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 financials;
(b)
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;
(c)
That the requested use variance, if granted, will not alter
the essential character of the neighborhood; and
(d)
That the alleged hardship has not been self-created.
(3)
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 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.
E.
Extensions across district boundaries. In appropriate cases where
a lot lies within two districts, the Board of Appeals may permit the
extension of existing or proposed permitted accessory off-street parking
space across a district boundary, under such conditions as will safeguard
the character of the district into which such use is extended. However,
no such extension shall exceed 75 feet, measured at right angles to
such district boundary. The power under this subsection shall not
permit the moving of the zoning district line but only the extension
of the accessory off-street parking space.
F.
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 imposed for the purpose of minimizing any adverse impact
such variance may have on the neighborhood or community.
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 Town Board.
Such regulations shall include provisions for conduct of meetings,
notification of parties, form of applications and filing of decisions.
B.
Every decision of the Board of Appeals shall be recorded in accordance
with a standard format adopted by the Board, shall fully set forth
the circumstances of the case and shall contain a record of the findings
on which the decision is based. Every decision of said Board shall
be by resolution, and each such resolution shall be filed in the offices
of the Town Clerk and Building Inspector by case number.
C.
All appeals and applications made to the Board of Appeals shall be
made in writing within 60 days after the filing of the order, decision,
requirement, interpretation, determination being appealed or referral
and shall be accompanied by a fee as determined in the Standard Schedule
of Fees, as may be adopted from time to time by resolution of the
Town Board.[1]
D.
Any person making an application for relief to the Board of Appeals
who, by agreement with the Board of Appeals or by unilateral action,
waives or otherwise extends any period of time established by law
for action of any kind by the Board of Appeals shall also be deemed
to waive any claim relating to the expiration of such period of time
and shall be estopped from asserting a claim against the Town, its
boards, officers, agents, consultants or employees, and the Town,
its boards, officers, agents, consultants and employees may raise
such waiver as an absolute defense or counterclaim in any such action
or proceeding.
E.
Any person making an application for relief to the Board of Appeals
shall be deemed to have granted to the Board of Appeals, its members,
consultants and other persons acting on behalf of the Board of Appeals,
a license to enter the property for which relief is sought, which
license shall continue until such time as relief is granted or denied
by the Board of Appeals or until the Board of Appeals receives notice
that the applicant has withdrawn such application.
F.
Any relief granted by the Board of Appeals shall expire 18 months
after the Board of Appeals actually votes to grant such relief, irrespective
of the date such approval has been reduced to writing, unless a building
permit, certificate of occupancy or certificate of use relating to
such relief has been issued.
G.
The Board of Appeals shall have the authority to call upon any department,
agency, consultant or employee of the Town for such assistance as
shall be deemed necessary and as shall be authorized by the Town Board.
Such department, agency or employee may be reimbursed by the Town
for any expenses incurred as a result of such assistance.
H.
An appeal shall stay all proceedings in furtherance of the action
appealed from, unless the administrative official charged with the
enforcement of such ordinance or local law, from whom the appeal was
taken, and after the notice of appeal shall have been filed with the
administrative official, certifies that by reason of facts a stay,
would, in her or his 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.
I.
Hearing on appeal. The Board of Appeals shall hold a public hearing
on the application and give public notice of such hearing in a paper
of general circulation in the Town and by mailing to adjoining property
owners as reflected in the records of the office of the Town Assessor
at least five days prior to the date thereof. Prior to the hearing,
evidence of mailing shall be provided to the Clerk of the Zoning Board
of Appeals in a form prescribed by the Zoning Board in its rules and
regulations of proceedings. The cost of sending and publishing notices
shall be borne by the appealing party and shall be paid to the Board
prior to the hearing of such appeal.
J.
Time of decision. The Board of Appeals shall decide upon the appeal
within 62 days of closing the public hearing. The time within which
the Board of Appeals must render its decision may be extended by mutual
consent of the applicant and the Board.
K.
Notice to Park Commission and County Planning Department. At least
five days before the hearing, notices shall be mailed to a regional
state park commission having jurisdiction over any state park within
500 feet of the property affected by such appeal; and to the Rockland
County Planning Department as required by § 239-m of the
General Municipal Law, except as waived by the Rockland County Planning
Department.
L.
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 as codified in Title 6, Part
617 of the New York Codes, Rules and Regulations.
M.
Rehearing. A motion for the Board of Appeals to hold a rehearing
to review any order, decision or determination of the Board not previously
reheard 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 the Board
finds that the rights vested in persons acting in good faith in reliance
upon the reheard order, decision or determination will not be prejudiced
thereby.
N.
Voting requirements.
(1)
Decision of the Board. Except as otherwise provided in Subdivision
12 of this section,[2] every motion or resolution of a board of appeals shall
require for its adoption the affirmative vote of a majority of all
the members of the Board of Appeals as fully constituted regardless
of vacancies or absences. Where an action is the subject of a referral
to the county planning agency or regional planning council the voting
provisions of Section 239-m of the General Municipal Law shall apply.
[2]
Editor's Note: See Town Law § 267-a, Subdivision
12.
(2)
Default denial of appeal. In exercising its appellate jurisdiction
only, if an affirmative vote of a majority of all members of the Board
is not attained on a motion or resolution to grant a variance or reverse
any order, requirement, decision or determination of the enforcement
official within the time allowed by Subdivision 8 of this section,[3] the appeal is denied. The Board may amend the failed motion
or resolution and vote on the amended motion or resolution within
the time allowed without being subject to the rehearing process as
set forth in Subdivision 12 of this section.[4]
Any person aggrieved by any decision of the
Board of Appeals hereunder may, within 30 days of the filing of the
decision with the office of the Town Clerk, appeal pursuant to Article
78 of the Civil Practice Laws and Rules.
