[L.L. No. 4-1996, § 1; L.L.
No. 3-2010, 7-6-2010, §§ 4,
5]
(1)
The City of Poughkeepsie Zoning Board of Appeals is hereby continued
in accordance with § 81 of the General City Law. Such Board
shall consist of seven regular members and two alternates, appointed
by the Mayor, who shall serve initial terms of one year and may be
reappointed upon the expiration of such term for subsequent terms
of three years. Members shall serve until the appointment and qualification
of their successors. The Mayor shall designate one member of the Board
to serve as Chairperson, who shall preside at meetings of the Board
and who shall execute the duties normally conferred by parliamentary
order, in addition to those prescribed by this article.
(2)
In the absence of the Chairperson, the Board of Appeals may designate
a member to serve as Acting Chairperson. The Common Council may provide
for compensation to be paid to experts, clerks and a secretary and
provide for such other expenses as may be necessary and proper, not
exceeding the appropriation made for such purpose. In making such
appointments, the Mayor may require Board of Appeals members to complete
training and continuing education courses in accordance with any local
requirements for the training of such members.
(3)
Legislative body members ineligible. No person who
is a member of the Common Council or the City Chamberlain shall be
eligible for membership on such Board of Appeals.
(4)
Vacancy in office. If a vacancy shall occur otherwise
than by expiration of term, the Mayor shall appoint the new member
for the unexpired term.
(5)
Removal of members. The Mayor shall have the power
to remove, after public hearing, any member of the Zoning Board of
Appeals for cause. Any Zoning Board of Appeals member may be removed
for noncompliance with any minimum requirements relating to meeting
attendance and training as established by the legislative body by
local law.
(6)
Chairperson duties. All meetings of the Board of
Appeals shall be held at the call of the Chairperson and at such other
times as such Board may determine. Such Chairperson or, in his or
her absence, the Acting Chairperson may administer oaths and compel
the attendance of witnesses.
(7)
Alternates. Each alternate shall serve at the pleasure
of the Mayor and shall attend meetings and may cast votes on matters
before the Zoning Board of Appeals when assigned by the Chairman to
substitute for an absent member.
[L.L. No. 4-1996, § 1]
(1)
Meetings, minutes, records. Meetings of the Board shall be held at the call of the Chairman. Meetings shall be held at sufficiently frequent intervals, at the discretion of the Board, for the efficient conduct of its business, provided that no matter pending before the Board shall be held longer than 60 days from the date of filing of an appeal or application without its being formally considered. All meetings shall be open to the public; however, an executive session may be called by the Chairman and deliberations made thereafter in accordance with Article 7 of the Public Officers Law (the Open Meetings Law).
(2)
The Board of Appeals shall keep the stenographic minutes of its proceedings,
which shall be transcribed as necessary, 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.
(3)
Filing requirements. Every rule, 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 City Chamberlain within 10 business days and shall be a public
record.
(4)
Assistance to the Board of Appeals. Such Board shall
have the authority to call upon any department, agency or employee
of the City for such assistance as shall be deemed necessary and as
shall be authorized by the legislative body. Such department, agency
or employee may be reimbursed for any expenses incurred as a result
of such assistance.
(5)
Hearing appeals. Unless otherwise provided herein,
by local law or by ordinance, the jurisdiction of the Board of Appeals
shall be appellate only and shall be limited to hearing and deciding
appeals from and reviewing any order, requirement, decision, interpretation
or determination made by the administrative official charged with
the enforcement of any ordinance or local law adopted pursuant to
this article.
(6)
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.
(7)
Stay upon appeal. Any 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 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.
(8)
Hearing on appeal. The Board of Appeals shall fix
a reasonable time for the hearing of the appeal or other matter referred
to it and give public notice of such hearing by publication in a paper
of general circulation in the City at least five days prior to the
date thereof. The cost of sending notices relating to such appeal
or a reasonable fee relating thereto shall be borne by the appealing
party. Upon the hearing, any party may appear in person or by agent
or attorney.
(9)
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.
(10)
Filing of decision and notice. The decision
of the Board of Appeals on the appeal shall be filed in the office
of the City Clerk within 10 business days after the day such decision
is rendered, and a copy thereof mailed to the applicant.
(11)
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.
(12)
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.
(13)
Rehearing. A motion for the Zoning Board of
Appeals to hold a rehearing to review any order, decision or determination
of the Board 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 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.
(14)
Notwithstanding the foregoing Subsection (13), no application for a variance shall be considered by the Board within 18 months of the denial or dismissal of an appeal for the same or similar relief respecting the same property unless there appears on the face of the renewal application evidence of new or changed circumstances regarding the property and indicating that a rehearing of the matter is warranted.
[L.L. No. 4-1996, § 1; L.L.
No. 3-2010, 7-6-2010, § 6]
(a)
A quorum of the Zoning Board of Appeals shall be defined as four
regular members of the Board, including up to two duly appointed alternates
if regular members are absent from a meeting. In order to convene
a public meeting and to officially transact the business of the Board,
a quorum must be present.
(b)
Except as provided in § 239-m of the General Municipal
Law, the concurrence of four Board members approving of a motion is
necessary to reverse any order, requirement, decision or determination
of any administrative official or to decide in favor of the applicant
regarding any matter which the Board is required to review. If a motion
is not carried, the failure to approve the motion is the effective
denial of same. Members shall have the right to abstain.
[Ord. of 12-19-1983, § 1; Ord. of 9-8-1987, §§ 2, 3; L.L. No. 4-1996, § 1]
The Board of Appeals shall have all the powers and duties prescribed
by law and by this chapter, as set forth below, provided that nothing
in this chapter except as specifically provided in this article shall
be deemed to limit any of the statutory powers granted to the Board
by §§ 81, 81-a, 81-b and 81-c of the General City Law.
(1)
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 City, to decide any
one of the following questions:
(2)
Variances.
(a)
AREA VARIANCE
USE VARIANCE
Definitions. As used in this article, the following
terms shall have the meanings indicated:
The authorization by the Zoning Board of Appeals for the
use of land in a manner which is not allowed by the dimensional or
physical requirements of the applicable zoning regulations.
The authorization by the Zoning Board of Appeals for the
use of land for a purpose which is otherwise not allowed or is prohibited
by the applicable zoning regulations.
(b)
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 be 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, decision,
interpretation or determination the appeal is taken.
(c)
Use variances.
1.
The Board of Appeals, on appeal from the decision or determination
of the administrative official charged with the 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 the 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; and
d.
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.
(d)
Area variance.
1.
The Zoning Board of Appeals shall have the power, upon an appeal
from a decision or determination of the administrative official charged
with the enforcement of such ordinance or local law, to grant area
variances as defined herein.
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
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 of 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 requested 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; 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.
(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 the zoning ordinance or local law and shall be imposed for
the purpose of minimizing any adverse impact such variance may have
on the neighborhood or community.
(3)
Recommendation for zoning change. Where the Board
of Appeals finds that the use of the property under its zoning classification
has or will cause unnecessary hardship but that the same conditions
generally to other land or buildings in the same general vicinity
or zoning district, said Board shall call this condition to the attention
of the Common Council and shall not grant a variance application until
120 days following such notification and then only if the Common Council
shall have failed to enact a suitable amendment to the Zoning Ordinance.
(4)
Variance procedures in areas of special flood hazards.
(a)
Appeal board.
1.
The Zoning Board of Appeals as established by the City of Poughkeepsie shall hear and decide appeals and requests for variances from the requirements of the Flood Damage Prevention Ordinance, 19-4.6, as regulated under Section 19-8.4, Subsection (2), variances, of the Zoning Ordinance of the City of Poughkeepsie.
2.
In passing upon such applications, the Zoning Board of Appeals
shall consider all technical evaluations, all relevant factors, standards
specified in other sections of this Chapter and:
a.
The danger that materials may be swept onto other lands to the
injury of others.
b.
The danger to life and property due to flooding or erosion damage.
c.
The susceptibility of the proposed facility and its contents
to flood damage and the effect of such damage on the individual owner.
d.
The importance of the services provided by the proposed facility
to the community.
e.
The necessity to the facility of a waterfront location, where
applicable.
f.
The availability of alternative locations for the proposed use
which are not subject to flooding or erosion damage.
g.
The compatibility of the proposed use with existing and anticipated
development.
h.
The relationship of the proposed use to the Comprehensive Plan
and flood plain management program of that area.
i.
The safety of access to the property in times of flood for ordinary
and emergency vehicles.
j.
The expected heights, velocity, duration, rate of rise and sediment
transport of the floodwaters and the effects of wave action, if applicable,
expected at the site.
k.
The costs of providing governmental services during and after
flood conditions, including maintenance and repair of public utilities
and facilities such as sewer, gas, electrical and water systems and
streets and bridges.
3.
Upon consideration of the factors of this Subsection (4)(a)
and the purposes of this Chapter, the Zoning Board of Appeals may
attach such conditions to the granting of variances as it deems necessary
to further the purposes of the Flood Damage Prevention Ordinance.
4.
The Zoning Administrator shall maintain the records of all appeal
actions, including technical information and report any variances
to the Federal Insurance Administration upon request.
(b)
Conditions of variances in areas of special flood hazards.
1.
Generally, variances may be issued for new construction and
substantial improvements to be erected on a lot of 1/2 acre or less
in size contiguous to and surrounded by lots with existing structures
constructed below the base flood level, provided that the items in
Subsection (4)(a)2 have been fully considered. As the lot size increases
beyond 1/2 acre, the technical justification required for issuing
the variance increases.
2.
Variances may be issued for the reconstruction, rehabilitation
or restoration of structures listed on the National Register of Historic
Place or the State Inventory of Historic Places, without regard to
the procedures set forth in the remainder of this section.
3.
Variances shall not be issued within any designated floodway
if any increase in flood levels during the base flood discharge would
result.
4.
Variances shall only be issued upon a determination that the
variance is the minimum necessary, considering the flood hazard, to
afford relief.
5.
Variances shall only be issued upon:
a.
A showing of good and sufficient cause;
b.
A determination that failure to grant the variance would result
in exceptional hardship to the applicant; and
c.
A determination that the granting of a variance will not result
in increased flood heights, additional threats to public safety, extraordinary
public expense, create nuisances, cause fraud on or victimization
of the public as identified in Subsection (4)(a) or conflict with
existing local laws or ordinances.
6.
Any applicant to whom a variance is granted shall be given written
notice that the structure will be permitted to be built with a lowest
floor elevation below the base flood elevation and that the cost of
flood insurance will be commensurate with the increased risk resulting
from the reduced lowest floor elevation.
7.
Variances may be issued for new construction and substantial
improvements and for other development necessary for the conduct of
a functionally dependent use provided that:
a.
The criteria of Section 19-8.4(4)(b)1, 3, 4 and 5 are met; and
b.
The structure or other development is protected by methods that
minimize flood damages during the base flood and create no additional
threat to public safety.
[Ord. of 12-15-1986, § 2; L.L.
No. 4-1996, § 1]
The powers and duties of the Board of Appeals shall be exercised
in accordance with rules and procedures established by said Board.
Such rules and procedures shall include the following:
(1)
The Board shall hear and decide all applications and appeals for
variances and other relief from any order, requirement, decision or
determination made by the Zoning Administrator or any other official
or agency of the city under the provisions of this Chapter.
(2)
An application or appeal must be made within 60 days of the action
being appealed. During such sixty-day period and during such time
as an appeal or application is pending before the Board of Appeals,
the Zoning Administrator shall not seek to institute any legal action
or proceeding through the office of the Corporation Counsel to enforce
the order, requirement or decision which is the subject of review
by the Board.
(3)
In cases where the subject of an appeal is the Zoning Administrator's
denial of the issuance of a building permit, a copy of the letter
constituting such denial must be included as part of the application
submitted to the Board of Appeals. In other cases, documentation of
the decision, order, requirement or determination which is the subject
of the appeal must be submitted.
(4)
Two copies of the proper application form, survey map and/or plot
plan, together with all evidence, information and documents pertaining
to such application or appeal, shall be filed with the Secretary of
the Board. The survey map or plot plan submitted shall be drawn to
scale, indicating the formal boundaries of the subject property, the
location of any existing structures, the location of any proposed
structures or building additions and the nature and extent of any
landscaping improvements or site alterations. Interior floor plans,
building elevations, and/or a formal site plan containing the elements
as described in Section 19-6.1(4) of this Zoning Chapter, may be required
to advise the Board fully with reference to the application or appeal.
(5)
Within 10 business days of receipt of a complete application, the
Secretary of the Board shall notify the appellant, in writing, of
the scheduled date of the public hearing pertaining to such appeal
or application.
(6)
The appellant or applicant shall cause to be published in the official
newspaper of the city on at least one occasion not less than five
days prior to the hearing date, legal notice of the hearing which
shall be conducted by the Board. The appellant or applicant shall
also cause notice of the hearing to be mailed by certified mail to
the owners of all property within a two-hundred-foot radius of the
parcel which is the subject of the hearing before the Board. Such
notice shall be mailed not less than five days prior to the hearing
date.
(7)
The Board of Appeals may authorize the Secretary of the Board to
transmit to the Planning Board a copy of the application forms and
maps prior to rendering a decision. The Planning Board after receiving
the above mentioned transmittal may submit to the Board of Appeals
an advisory opinion on the said appeal of application at any time
prior to the rendering of a decision by the Board of Appeals.
(8)
The failure to give notice in exact conformance herewith shall not
be deemed to invalidate any action taken by the Board of Appeals in
connection with the granting of any appeal or variance provided that
due notice shall have been published and that there shall have been
substantial compliance with the remaining provisions of this section.
(9)
At least five days prior to a meeting of the Board of Appeals, the
Secretary shall transmit to each of the Board members, the Zoning
Administrator and the Corporation Counsel, copies of each application
or appeal and an agenda listing the matters which are to be considered
at the meeting. In addition, the Mayor and members of the Common Council
shall be sent a copy of the agenda of the forthcoming meeting.
(10)
The Board shall render a decision on any appeal or application
within 62 days of the public hearing unless an extension of time is
mutually agreed to by the Board and the applicant.
[L.L. No. 4-1996, § 1]
[L.L. No. 4-1996, § 1]
Any variance granted by the Board of Appeals pursuant to the
provisions of this chapter shall be and become null, void and of no
further force or effect, unless the use for which the variance shall
have been granted shall actually have commenced upon the premises
within 12 months after the filing of the decision of the Board in
the office of the City Clerk or the erection and construction of the
new principal building or structure for which a variance shall have
been granted by the Board of Appeals shall actually have been commenced
within two years after the date of such filing.
[L.L. No. 4-1996, § 1]
All requests to withdraw an application or appeal made to the
Board must be made in writing and be presented to the Secretary of
the Board at least 24 hours prior to the scheduled time of the public
hearing at which the appeal is to be heard. Failure to make such application
for withdrawal shall result in the application or appeal being heard
by the Board and a decision made upon such evidence as is presented
to the Board.
[L.L. No. 4-1996, § 1]
Should any section or provision of this article be decided by
the courts to be unconstitutional or invalid, such decision shall
not affect the validity of the chapter as a whole or any part thereof
other than the part so decided to be unconstitutional or invalid.
[L.L. No. 4-1996, § 1]
This article shall take effect immediately upon filing with
the Secretary of State, State of New York, pursuant to § 27
of the Municipal Home Rule Law.
[L.L. No. 4-1996, § 1]
Article VIII of the zoning ordinance of the City of Poughkeepsie, "Board of Appeals," and any and all amendments thereto, are hereby repealed. Such repeal shall not affect or impair any act done, offense committed or right accruing, accrued or acquired or liability, penalty, forfeiture or punishment incurred, prior to the time such repeal takes effect, but the same may be enjoyed, asserted, enforced, prosecuted or inflicted as fully and to the same extent as if such repeal had not been effected.
