A Zoning Board of Appeals shall be maintained
in accordance with § 267, Article 16, of the Town Law. Said
Board shall consist of five members appointed by the Town Board for
staggered terms of five years. The Town Board shall annually designate
the Chairman of the Zoning Board of Appeals, while the Board shall
annually designate its Secretary and may prescribe reasonable rules,
in addition to those provided herein, for the conduct of its affairs.
The Zoning Board of Appeals shall have all the
powers and duties prescribed by law and by this chapter, which are
more particularly specified as follows:
A.
Interpretation: to hear and decide on questions where
it is alleged there is an error in any order, requirement, decision
or determination made by the Building Inspector involving the interpretation
of any provision of this chapter, or, on request by an administrative
official, board or agency of the Town, to decide upon the following
questions:
(1)
Determination of the meaning of any portion of the
text of this chapter or of any conditions or requirement specified
or made under the provisions of this chapter.
B.
Variances: to authorize, upon appeal in specific cases
and while maintaining the principal objective of protecting the public
interest, variances from the terms of this chapter in situations where,
due to documentable, exceptional and extraordinary circumstances,
there would result unnecessary hardships or practical difficulties
due to the strict application of the provisions of this chapter. The
Zoning Board of Appeals may grant no such variance unless the Board
finds that the following criteria have been strictly met:
(1)
Area variance.
(a)
In the case of an area variance, the applicant
is seeking modification of dimensional standards, such as yard requirements,
setback lines, lot coverage, frontage requirements, density regulations
or height restrictions, so that the property may be utilized for one
of the uses permitted by this chapter. The Board of Appeals may grant
relief if the applicant can demonstrate that strict compliance with
the regulations would cause practical difficulty. The determination
of practical difficulty shall include the following three-step processes:
[Amended 11-9-1995 by L.L. No. 2-1995]
[1]
First, the applicant must demonstrate that the
strict application of this chapter to his property causes significant
economic injury and that no other solution is practical.
[2]
Once the applicant has demonstrated economic
injury, then the Board of Appeals must show that the regulation in
question is reasonably related to a legitimate exercise of the police
power.
[3]
Last, assuming the Board of Appeals has met
its burden of proof, the applicant must demonstrate that the restrictions,
as strictly applied in his case, are unrelated to the public health,
safety or welfare of the community and that granting the variance
will not adversely affect the community. In assessing the matter of
practical difficulty, the Zoning Board of Appeals will consider:
[a]
How substantial the variation is
in relation to the requirement;
[b]
The potential effect of the area
variance on available municipal, county and state facilities and services;
[c]
Whether the area variance will
cause a substantial change in the character of the neighborhood;
[d]
Whether the difficulty can feasibly
be mitigated by some other method; and
[e]
Whether the interests of justice
will be served in granting the area variance.
(b)
The Zoning Board of Appeals may grant only the
minimum variance that will permit reasonable use of the land or building
in question.
(2)
Use variance.
(a)
A property owner who desires to utilize any
land and/or buildings for a use that is not permitted by this chapter
within the applicable zoning district, but which use is permitted
either by right or special use permit under this chapter within at
least one other zoning district, may apply for a use variance. An
applicant for a use variance must demonstrate unnecessary hardship
by satisfying each of the following three tests:
[1]
Uniqueness. The applicant must prove that there
are certain conditions or features of the property that are not generally
applicable throughout the zoning district and that these features
make it impossible to earn a reasonable return without some adjustment.
If the conditions or features are generally applicable throughout
the district, a variance may not be granted.
[2]
Reasonable return. The applicant must demonstrate
an inability to realize a reasonable return under any of the uses
permitted within the zoning district by this chapter. There must be
a "dollars-and-cents" proof of the applicant's inability to realize
reasonable return; speculation or qualitative assessment is inadequate.
Failure to realize the highest return on the land and/or buildings
is not considered a hardship.
[3]
Character. The applicant must prove that the
requested modification will not change the character or quality of
the neighborhood. In addition, the purpose and intent of the zoning
district and this chapter must be preserved.
(b)
The applicant for a use variance must meet all
three tests before the Zoning Board of Appeals may consider granting
relief. A use variance may not be granted if the unnecessary hardship
was created by the applicant subsequent to the adoption of this chapter;
i.e., that the relief sought is to address a self-created hardship.
(c)
Should the Zoning Board of Appeals deem the
same condition to apply generally to other land or buildings in the
same neighborhood or district, the Board may call this condition to
the attention of the Town Board and may recommend that the Town Board
consider a general amendment of this chapter.
In its quasi-judicial role, the Zoning Board
of Appeals shall act in strict accordance with the procedure specified
by § 267 of the Town Law and this chapter.
A.
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, but
in order to reverse a decision of the Building Inspector or authorize
a variance, an affirmative vote of at least three members shall be
required. A favorable vote of a majority plus one, i.e., of at least
four members, 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 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
of the Board of Appeals shall be open to the public.
B.
Application and fee. All appeals and applications
made to the Board shall be in writing, on forms prescribed by the
Board, within 30 days of the 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 be accompanied by a short or full environmental
assessment form as required by SEQRA, Article 8 of the Environmental
Conservation Law and Title 6, Part 617, NYCRR.
C.
Public notice and hearing. The Board shall fix a reasonable
time and place for a public hearing on such appeal or application,
of which hearing date the appellant shall be given notice and at which
hearing he shall either appear in person or be represented by an agent.
The agent shall bear a notarized statement signed by the applicant
which establishes such an agency relationship. Any other interested
party may appear at such public hearing in person, by attorney or
other agent, who shall likewise bear a notarized statement as set
forth above or by notarized mail. The Board shall additionally provide
notice as follows:
(1)
By publishing at least 10 calendar days prior to the
date thereof a legal notice in the official newspaper of the Town.
(2)
By requiring that the Secretary of the Zoning Board
of Appeals or other designated Town employee provide notice at least
10 calendar days prior to the date thereof of the substance of every
appeal for a variance, together with a notice of the hearing thereon,
by certified mail, return receipt requested, to the owners of all
property abutting that of the applicant and to all other owners within
400 feet, or such additional distances as the Board of Appeals may
deem advisable, from the boundaries of the land involved in the appeal.
Compliance with this notification procedure 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.
(a)
The names and addresses of owners notified shall
be taken as such appear on the last completed tax roll of the Town.
(b)
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.
(3)
If the land involved in the appeal lies within 500
feet of the boundary of any other municipality, the Secretary of the
Board of Appeals shall also submit, at least five calendar days prior
to the public hearing, to the Municipal Clerk of such other municipality
or municipalities a copy of the notice of the substance of every appeal,
together with a copy of the official notice of such public hearing.
D.
Required referrals. 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 until 30 calendar days have
elapsed since the Planning Department received such full statement.
(1)
Such actions shall include those which affect property
located within 500 feet of the following:
(a)
Municipal boundary;
(b)
Boundary of any existing or proposed county
or state park or other recreation area;
(c)
Right-of-way of any existing or proposed county
or state road or highway;
(d)
Existing or proposed right-of-way of any stream
or drainage channel owned by the county or for which the county has
established channel lines; or
(e)
Existing or proposed boundary of any county-
or state-owned land on which a public building or institution is situated.
(2)
The Zoning of Appeals shall additionally refer to
the Town Planning Board all applications for use variances and may
refer to the Planning Board any other pertinent matters for review
and recommendations. The Board of Appeals shall defer any decision
on the application for a period of 30 days to permit a report thereon
to be issued by the Planning Board. Upon failure to submit such report
to the Board of Appeals within 30 days, the Planning Board shall be
deemed to have waived any rights concerning the matter being referred.
E.
Decisions.
(1)
Every decision of the Zoning Board of Appeals on an
appeal or request shall be made within 60 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. Every decision shall be by resolution of the Board,
with such decision being filed in the office of the Town Clerk within
10 calendar days thereof. The Board shall also notify 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 taken shall also be filed within seven calendar
days thereof with the Dutchess County Department of Planning.
(2)
Whenever the Board, after hearing all the evidence
presented upon an application or appeal under the provisions of this
section, denies the same, the Board of Appeals shall refuse to hold
further hearings on said application or a substantially similar application
or appeal by the same applicant, his successor or assign for a period
of one year, except and unless the Zoning Board of Appeals 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. Such rehearing would
be allowable only upon a motion initiated by a member of the Zoning
Board of Appeals and adopted by the unanimous vote of the members
present, but not less than a majority of all members.
F.
Attachment of conditions. In all cases where the Zoning Board of Appeals grants a variance from the strict application of the requirements of this chapter, it shall be the duty of the Board to attach such conditions and safeguards as may be required in order that the result of its action shall be as nearly as possible in accordance with the spirit and intent of this chapter and the criteria for granting relief stated in § 164-50 of this article.
G.
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.
H.
Strict construction. All provisions of this chapter
pertaining to the Zoning Board of Appeals shall be strictly construed.
The Board, as a body of limited jurisdiction, shall act in full conformity
with all provisions of law and of this chapter and in strict compliance
with all limitations contained therein; provided, however, that if
the procedural requirements set forth in this chapter have been substantially
observed, no applicant or appellant shall be deprived of the right
of application or appeal.
Unless the Building Inspector finds there to
be an imminent threat to either life or property, an appeal stays
all proceedings by either the Town or appellant 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 Laws and Regulations 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.
