Pursuant to the Town Law, the Town Board shall appoint a Zoning
Board of Appeals consisting of five members, shall designate its Chairman
and also provide for such expenses as may be necessary and proper.
A member of the Board of Appeals shall not at the same time be a member
of the Town Board. The Town Board shall have the power to remove any
member of the Board of Appeals for cause and after public hearing.
A.
Term of appointment.
(1)
Of the members of the Board of Appeals first appointed, one shall
hold office for the term of one year, one for the term of two years,
one for the term of three years, one for the term of four years and
one for the term of five years from and after his appointment.
(2)
Their successors shall be appointed for the term of five years from
and after the expiration of the terms of their predecessors in office.
If a vacancy shall occur otherwise than by expiration of term, it
shall be filled by the Town Board by appointment for the unexpired
term.
(3)
No member of the Board of Appeals who has completed a full five-year
term shall be eligible for reappointment to the Board of Appeals for
a period of one year.
[Added 7-12-2004 by L.L. No. 10-2004]
B.
Staff. The Board of Appeals may employ such clerical or other staff
assistance as may be necessary and prescribe their duties, provided
it shall not at any time incur expenses beyond the amount of the appropriations
made by the Town Board and then available for that purpose.
C.
Rules of procedure, bylaws, forms. The Board of Appeals shall have
the power to make, adopt and promulgate such written rules of procedure,
bylaws and forms as it may deem necessary for the proper execution
of its duties and to secure the intent of this chapter. Such rules,
bylaws and forms shall not be in conflict with, nor have the effect
of waiving, any provisions of this chapter or any other sections of
the Town Code. Such rules, bylaws and forms and any subsequent amendments
or supplements thereto shall be submitted to the Town Board by the
Board of Appeals for approval and filing for public view. The Town
Board shall move to approve, reject or modify such rules, bylaws,
and forms within 30 days after submission. Failure of the Town Board
to so move shall be construed to constitute approval thereof.
D.
All meetings of the Board of Appeals shall be held at the call of
the Chairman and at such other times as such Board may determine.
The Chairman, or, in his absence, the Acting Chairman, may administer
oaths and compel the attendance of witnesses. All meetings of such
Board shall be open to the public. The concurring vote of a majority
of all members of the Board of Appeals shall be necessary to reverse
any order, requirement, decision or determination of the Building
Inspector or to decide in favor of an applicant in any matter upon
which said Board is required to pass under any section, or to effect
any variation in the section, of this chapter. The Board of Appeals
shall decide an appeal or any other matter referred to it within 60
days after the final hearing.
E.
The Board of Appeals shall keep minutes of its proceedings, showing
the vote of each member on every question. If a member is absent or
fails to vote, the minutes shall indicate such fact. Every rule, regulation,
every amendment or repeal thereof and every order, requirement, decision
or determination of the Board of Appeals shall immediately be filed
in the office of the Town Clerk and shall be a public record.
F.
Referrals to the Planning Board. At least 45 days before the date
of hearing held in connection with any appeal or application submitted
to the Board of Appeals, said Board shall transmit to the Planning
Board a copy of said appeal or application and shall request that
the Planning Board submit to the Board of Appeals its advisory opinion
on said appeal or application. The Planning Board shall submit a report
of such advisory opinion prior to the date of said public hearing.
The failure of the Planning Board to submit such report shall be interpreted
as a favorable opinion for the appeal or application.
G.
The Town Board shall appoint alternate members of the Zoning Board
of Appeals to serve as provided in this section. The number of alternate
members appointed pursuant to this section shall not exceed three.
The Town Board shall appoint alternate members who shall hold membership
for a term of two years. The Chairperson of the Zoning Board of Appeals
shall randomly assign the available alternate members to substitute
for regular members who are absent or who are unable to participate
for reasons of conflict of interest. Alternate members must attend
all regular and special meetings of the Zoning Board of Appeals, unless
excused by the Board. An alternate member assigned to sit and participate
as a member of the Zoning Board of Appeals as provided herein shall
possess all of the powers and responsibilities of a regular member
of the Planning Board. Any determination by the Planning Board consisting
of alternate members shall have the same force and effect at law as
a determination made by the Zoning Board of Appeals consisting of
only regular members. Alternate members appointed pursuant to this
section shall be entitled to receive such expenses as fixed by resolution
of the Town Board. (This subsection amends § 271, Subdivision
15, of the New York State Town Law.)
Public notice of any required hearing by the Board of Appeals
shall be given in accordance with the Town Law as follows:
A.
By publishing a notice of any appeal or application and the time
and place of the public hearing in the official newspaper of the Town
not less than 10 days prior to the date of such hearing.
B.
By giving written notice of the hearing to any appellant or applicant
and any other such notice to property owners in an affected area as
may be required by the Board of Appeals and to the Planning Board
not less than five days prior to such hearing.
C.
By giving written notice of the hearing to any required municipal,
county, metropolitan, regional, state or federal agency in the manner
prescribed by law.
The Board of Appeals shall hear and decide appeals from and
review any order, requirement, decision or determination made by the
Building Inspector under this chapter in accordance with the procedure
set forth herewith:
A.
Notice of appeal shall be filed with the Building Inspector and the
Secretary to the Board of Appeals in writing, in a form required by
such Board, within 60 days of the date of the action appealed from,
specifying the grounds thereof.
B.
Upon the filing of a notice of appeal and payment of a filing fee
of $50 by the appellant or applicant, the Building Inspector shall
forthwith transmit to the Board of Appeals all the papers constituting
the record upon which the action appealed from was taken.
C.
The Board of Appeals shall set a reasonable date for the hearing
of each appeal, of which hearing date the appellant shall be given
notice and at which hearing he shall appear in person or by agent
or by attorney.
D.
An appeal stays all proceedings in furtherance of the action appealed
from, unless the Building Inspector certifies to the Board of Appeals,
after notice of appeal shall have been filed with him, that, by reason
of facts stated in the certificate, a stay would, in 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 Building Inspector and on due cause shown.
E.
Following public notice and hearing, the Board of Appeals may reverse
or affirm, wholly or partly, or may modify the order, requirement,
decision or determination appealed from and shall make such order,
requirement, decision or determination as, in its opinion, ought to
be made in the premises and, to that end, shall have all the power
of the Building Inspector. If the action by the Board of Appeals is
to reverse the action of the Building Inspector in whole, the filing
fee shall be refunded to the appellant. The Board of Appeals shall
decide the same within 60 days following the final hearing.
A.
Where there are practical difficulties or unnecessary hardships in
the way of carrying out the strict letter of this chapter, the Board
of Appeals shall have the power, after public notice and hearing,
to vary or modify the application of any of the regulations or provisions
of this chapter relating to the use, construction or alteration of
buildings or structures or the use of land, so that the spirit of
this chapter shall be observed, public safety and welfare secured
and substantial justice done.
B.
All applications for variances shall be filed with the Secretary
to the Board of Appeals, in writing, shall be made in a form required
by the Board of Appeals and shall be accompanied by payment of a filing
fee consistent with the fee schedule and a plot plan, drawn to scale
and accurately dimensioned, showing the location of all existing and
proposed buildings and structures on the lot.
C.
Any variance which is not exercised within one year from the date
of issuance is hereby declared to be revoked without further hearing
by the Board of Appeals.
D.
Criteria for granting variances.
(1)
Use variance. The Board of Appeals, on appeal from the decision or
determination of the Building Inspector, shall have the power to grant
use variances according to the following criteria:
(a)
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 the particular district where the property
is located:
[1]
The applicant cannot realize a reasonable return, provided that
lack of return is substantial, as demonstrated by competent financial
evidence;
[2]
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;
[3]
That the requested use variance, if granted, will not alter
the essential character of the neighborhood; and
[4]
That the alleged hardship has not been self-created.
(b)
The Board of Appeals, in the granting of use variances, shall
grant the minimum variance that it shall deem necessary 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.
(2)
Area variances. The Zoning Board of Appeals shall have the power,
upon an appeal of a decision or determination of the Building Inspector,
to grant area variances in accordance with the following criteria:
(a)
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 a grant. In making
such determination, the Board shall also consider:
[1]
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 of the area variance;
[2]
Whether the benefit sought by the applicant can be achieved
by some method, feasible for the applicant to pursue, other than an
area variance;
[3]
Whether the requested area variance is substantial;
[4]
Whether the proposed variance will have an adverse effect or
impact on the physical or environmental conditions in the neighborhood
or district; and
[5]
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)
A variance from the provisions of this chapter shall be granted by
the Board of Appeals in order to vary or adapt the strict application
of any of the requirements of this chapter in the case of exceptionally
irregular, narrow, shallow or steep lots or other exceptional physical
conditions, whereby such strict application would result in practical
difficulty or unnecessary hardship that would deprive the owner of
the reasonable use of the land or building involved, but in no other
case. No variance from the strict application of this chapter shall
be granted by the Board of Appeals except by the adoption of a resolution
fully setting forth the reasons for the following findings:
(a)
That there are special circumstances or conditions applying
to such land or buildings and not applying generally to land or buildings
in the vicinity and under identical district classification, and that
said circumstances or conditions are such that strict application
of the provisions of this chapter would deprive the applicant of the
reasonable use of such land or buildings or privileges enjoyed by
other properties in the vicinity and under identical district classification.
(b)
That the granting of the variance is necessary for the reasonable
use of the land or building and that the variance as granted by the
Board of Appeals is the minimum variance that will accomplish this
purpose.
(c)
That the granting of the variance will be in harmony with the
general purpose and intent of this chapter and will not be injurious
to the vicinity or otherwise detrimental to the public welfare.
(d)
That any variance granted shall be subject to such conditions
as will assure that the adjustment thereby authorized shall not constitute
a grant of special privilege inconsistent with the limitations upon
other properties in the vicinity and district in which subject property
is situated.
(4)
In no case shall a variance be granted solely for the reason of additional
financial gain on the part of the owner of the land or building involved.
Any person or persons jointly or severally aggrieved by a decision
of the Board of Appeals may apply to the Supreme Court for relief
by a proceeding under Article 78 of the Civil Practice Law and Rules
of the State of New York. Such proceeding shall be governed by the
provisions of Article 78 of the Civil Practice Law and Rules, except
that it must be instituted as therein provided within 30 days after
the filing of a decision in the office of the Town Clerk; that the
Court may take evidence or appoint a referee to take such evidence
as it may direct and report the same with his findings of fact and
conclusions of law, if it shall appear that testimony is necessary
for the proper disposition of the matter; and that the Court at special
term shall itself dispose of the cause on the merits, determining
all questions of § 7803 of said Article. 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.
