There shall be a Board of Appeals of five members pursuant to the provisions of § 267 of the Town Law.
The Board of Appeals shall have all the powers and duties prescribed by law 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.
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 Town, to decide any of the following questions:
To authorize, upon appeal in specific cases, such variance from the terms of this chapter as will not be contrary to the public interest where, owing to exceptional and extraordinary circumstances, there are practical difficulties and unnecessary hardships in the way of carrying out the strict letter of this chapter, subject to terms and conditions to be fixed by the Board of Appeals; provided, however, that no such variance shall be granted unless said Board finds:
That there are physical conditions, such as in the case of an exceptionally irregular, narrow, shallow or steep lot, fully described in the findings of said Board, applying to the land or building for which the variance is sought, which conditions are peculiar to such land or building and have not resulted from any act of the applicant or any prior owner.
That, for reasons fully set forth in the findings of said Board, the aforesaid circumstances or conditions are such that the strict application of the provisions of this chapter would deprive the applicant of the reasonable use of such land or building and the granting of the variance is necessary for the reasonable use of the land or building, and that the variance as granted by said Board is the minimum variance that will accomplish this purpose.
That the granting of the variance, under such conditions as said Board may deem necessary or desirable to apply thereto, will be in harmony with the general purpose and intent of this chapter, will not represent a radical departure therefrom, will not be injurious to the neighborhood, will not change the character thereof and will not be otherwise detrimental to the public welfare.
Where said Board finds the zoning classification of a particular property to be conducive to the deprivation of the reasonable use of the land or buildings, and where said Board finds the same condition to apply generally to other lands or buildings in the same neighborhood or zoning district, the said Board shall call this condition to the attention of the Planning Board and Town Board.
In all cases where the Board of Appeals grants a variance from the strict application of the requirements of this chapter, it shall be the duty of such Board to attach such conditions and safeguards as may be required in order that the result of its action may be as nearly as possible in accordance with the spirit and intent of this chapter.
In addition to such powers as may be conferred on it by statute, the Board of Appeals shall have the power, after public notice and hearing and on application, to issue special permits for any of the uses specified in Article III, Use Regulations, as requiring such permits in the particular district. In issuing such special permit, the Board shall take into consideration the public health, safety and welfare, and the comfort and convenience of the public in general and of the residents of the immediate neighborhood in particular, and may prescribe such appropriate conditions and safeguards as may be required in order that the result of its action shall, to the maximum extent possible, further the expressed intent of this chapter and the accomplishment of the following objectives:
That all proposed structures, equipment or material shall be readily accessible to fire and police protection.
That the proposed use shall be of such location, size and character that, in general, it will be in harmony with the appropriate and orderly development of the district in which it is proposed to be situated and will not be detrimental to the orderly development of adjacent properties in accordance with the zoning classification of such properties.
That, in addition to the above, in the case of any use located in or directly adjacent to a residential district:
The location and size of such use, the nature and intensity of operations involved in or conducted in connection therewith, its site layout and its relation to access streets shall be such that both pedestrian and vehicular traffic to and from the use and the assembly of persons in connection therewith will not be hazardous or inconvenient to, or incongruous with, the said residential district or conflict with the normal traffic of the neighborhood.
The location and height of buildings, the location, nature and height of walls and fences, and the nature and extent of landscaping on the site shall be such that the use will not hinder or discourage the appropriate development and use of adjacent land and buildings.
In issuing a special permit the Board may require any walls, fences or landscaping which it deems necessary to protect the value of adjacent properties or to prevent any hindering of the appropriate development of adjacent land.
Each application for a special permit shall be accompanied by a proposed plan showing the size and location of the lot and the location of all buildings and proposed facilities, including access drives, parking areas and all streets within 200 feet of the lot.
Any use for which a special permit may be granted shall be deemed to be a conforming use in the district in which such use is located, provided that such permit shall affect only the lot or portion thereof for which such permit shall have been granted.
The Board of Appeals may require that special permits be periodically renewed. Such renewal shall be granted following due public notice and hearing and may be withheld only upon a determination by the Board to the effect that such conditions as may have been prescribed by the Board in conjunction with the issuance of the original permit have not been or no longer are being complied with.
Temporary certificate of occupancy.
To authorize, upon denial by the Building Inspector of a certificate of occupancy, the issuance of a temporary certificate of occupancy by the Building Inspector for a period not to exceed 90 days, for the completion of any alterations that are required under the provision of any law or ordinance, or for the completion of a part of an uncompleted building, provided that the Board finds that:
The denial of a certificate of occupancy prior to completion of the said alterations or of the building would cause unnecessary hardship; and
The safety of the occupants of the building and of adjacent buildings and land would be adequately assured under such terms and conditions as said Board may prescribe.
Such temporary certificate shall not be construed as in any way altering the respective rights, duties or obligations of the owner or of the Town respective to the use or occupancy of the land or building, or any other matter covered by this chapter.
The powers and duties of the Board of Appeals shall be exercised in accordance with the following procedure:
The Board of Appeals shall not decide upon any appeal for a variance, special permit 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 Town at least 10 days before the date of such hearing. In addition to such published notice, the Board of Appeals shall cause such notice to be mailed at least 10 days before the hearing to all owners of properties which lie within 200 feet of any lot line of the property for which relief is sought and to such other owners as the Board of Appeals may deem advisable.
The names of said owners shall be taken as they appear on the last completed tax roll of the Town.
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 Board of Appeals in connection with the granting of any appeal or variance.
All appeals and applications made to the Board of Appeals shall be in writing and shall be accompanied by a fee of not less than the actual and necessary costs of advertising and holding a public hearing. The basic fee shall be as determined in the Standard Schedule of Fees of the Town of Tuxedo as may be adopted from time to time by resolution of the Town Board.
Each appeal or application shall fully set forth the circumstances of the case, shall refer to the specific provision of the ordinance involved and shall exactly set forth, as the case may be, the interpretation that is claimed, the details of the variance that is applied for and the grounds on which it is claimed that the same should be granted.
Should any appeal involve either of the two following conditions, the Secretary of the Board of Appeals shall transmit to the designated office or official a copy of the official notice of the public hearing not later than 10 days prior to the date of the hearing. (The designated official for counties shall be the Clerk of the County Legislature. In villages and towns, the designated official shall be the Clerk of the municipality.)
Any change in the boundaries of any district, which change would occur within a distance of 500 feet of the boundary of any village or Town, state or county road, park or other state-owned facility.
Prior to the date of any public hearing, the Secretary of the 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.
All the provisions of this chapter relating to the Board of Appeals shall be strictly construed. Said Board, as a body of limited jurisdiction, shall act in full conformity with all provisions of law and of this chapter, and in compliance with all limitations contained therein.
Unless construction is commenced and diligently pursued within 12 months of the date of the granting of a variance, such variance shall become null and void.
Every decision of the Board of Appeals shall be recorded in accordance with standard forms adopted by the Board, shall fully set forth the circumstances of the case and shall contain a full record of the findings on which the decision is based.