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:
A.
Meetings, minutes, records. Meetings of the 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 or 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 Town Clerk
within five business days and shall be a public record.
C.
Assistance to Board of Appeals. The Board of Appeals shall have the
authority to call upon any department, agency 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
for any expenses incurred as a result of such assistance.
D.
Hearing appeals. Unless otherwise provided by local law or ordinance,
the jurisdiction of the Board of Appeals shall be by appellate only
and shall be limited to hearing and deciding appeals from and reviewing
any order, requirement, decision, interpretation or determination
made by an administrative official charged with the enforcement of
any ordinance or local law adopted pursuant to this chapter. The concurring
vote of the 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 Town.
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 such
ordinance or local law by filing with such administrative official
and with the Board of Appeals a notice of appeal, 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.
F.
Stay upon appeal. An appeal shall stay all proceedings in furtherance
of the action appealed from, unless the administrative official charged
with enforcement of such ordinance or local law, 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 on appeal. The Board of Appeals shall fix a reasonable time
for the hearing of the appeal or other matters referred to it and
give public notice of such hearing by publication in a paper of general
circulation in the Town 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.
Time of decision. The Board of Appeals shall decide upon the appeal
within 62 days after the conduct of said 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.
I.
Filing of decision and notice. The decision of the Board of Appeals
on the appeal shall be filed in the office of the Town Clerk within
five business days after the day such decision is rendered, and a
copy thereof shall be mailed to the applicant.
J.
Notice to park commission or planning agency. At least five days
before such hearing, the Board of Appeals shall mail notices thereof
to the parties; to the regional state park commission having jurisdiction
over any state park or parkway within 500 feet of the property affected
by such appeal and to the county, metropolitan or regional planning
agency, as required by § 239-m of the General Municipal
Law, which notice shall be accompanied by a full statement of the
matter under consideration, as defined in Subdivision 1 of § 239-m
of the General Municipal Law.
K.
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.
L.
Rehearing. A motion for the 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 a 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.
M.
Referral to the Town Planning Board. Prior to the date of any public
hearing, the Secretary of the Board of Appeals shall transmit to the
Secretary of the Town 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.
A.
Orders, requirements, decisions, interpretations, determinations.
The Board of Appeals may reverse or affirm, wholly or partly, or may
modify the order, requirement, decision, interpretation or determination
appealed from 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, requirement
or decision the appeal is taken.
B.
Referrals to County Planning Board.
(1)
The following shall be referred to the County Planning Board:
(a)
Adoption or amendment of a comprehensive plan pursuant to § 272-a
of Town Law;
(b)
Adoption or amendment of a zoning ordinance or local law;
(c)
Issuance of special use permits;
(d)
Approval of site plans;
(e)
Granting of use and area variances;
(f)
Other authorizations that a referring body may issue under the
provisions of any zoning ordinance or local law.
(2)
Referral when property within 500 feet.
(a)
The proposed actions set forth above shall be subject to referral
to the County Planning Board if they apply to real property within
500 feet of the following:
[1]
The boundary of any city, village or town; or
[2]
The boundary of any existing or proposed county or state park or
other recreation area; or
[3]
The right-of-way of any existing or proposed county or state parkway,
throughway, expressway or other controlled-access highway; or
[4]
The 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
[5]
The existing or proposed boundary of any county- or state-owned land
on which a public building or institution is situated; or
[6]
The boundary of any farm operation located in an agricultural district,
as defined by Article 25-AA of the Agriculture and Markets Law, except
this subsection shall not apply to the granting of area variances.
(b)
The referring board shall not take final action until it has
received a recommendation within 30 days from the County Planning
Board.
C.
Use variances.
(1)
The Board of Appeals, on an appeal from the decision or determination
of the administrative official charged with enforcement of such ordinance
or local law, shall have the power to grant use variances, as defined
herein.
(2)
No such 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 that 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.
(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.
(c)
The requested use variance, if granted, will not alter the essential
character of the neighborhood.
(d)
The alleged hardship has not been self-created.
(3)
The Board of Appeals, in the granting of a use variance, 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.
(1)
The Board of Appeals shall have the power, upon an appeal from a
decision or determination of an administrative official charged with
the enforcement of such ordinance or local law or by direct request
of the applicant pursuant to Town Law §§ 274-a, Subdivision
3; 274-b, Subdivision 3; and 277, Subdivision 6, to grant area variances
as defined herein.
(2)
In making its determination, the 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 a grant. In making such determination,
the Board shall also consider:
(a)
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 or the area variance.
(b)
Whether the benefit sought by the applicant can be achieved
by some method, feasible for the applicant to pursue, other than an
area variance.
(c)
Whether the area variance is substantial.
(d)
Whether the proposed variance will have an adverse effect or
impact on the physical or environmental conditions in the neighborhood
or district.
(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.
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.
Application to Supreme Court by aggrieved persons. Pursuant to Town
Law § 267-c, any person or persons, jointly or severally
aggrieved by any decision of the Board of Appeals or any officer,
department, board or bureau of the Town, may apply to the Supreme
Court for review by a proceeding under Article 78 of the Civil Practice
Law and Rules. Such proceeding shall be instituted within 30 days
after the filing of a decision of the Board of Appeals in the office
of the Town Clerk.
B.
Costs of appeal. Costs shall not be allowed against the Board of
Appeals unless it shall appear to the Court that it acted with gross
negligence or in bad faith or with malice in making the decision appealed
from.
C.
Preference of appeal to Court. All issues in any proceeding under
this section shall have preference over all other civil actions and
proceedings.
D.
Power of court. If, upon hearing at the Supreme Court, it shall appear
to the Court that testimony is necessary for the proper disposition
of the matter, it may take evidence or appoint a referee to take such
evidence as it may direct and report the same to the Court with his
or her findings of fact and conclusions of law, which shall constitute
a part of the proceedings upon which the determination of the Court
shall be made. The Court may reverse or affirm, wholly or partly,
or may modify the decision brought up for review, determining all
questions which may be presented for determination.
