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. The Zoning Board of Appeals may reverse or affirm,
wholly or partially, or may modify the order, requirement, decision,
interpretation or decision appealed from and shall make such order,
requirement, decision, interpretation or determination as in its opinion
ought to have been made by the administrative official, i.e., the
Code Enforcement Officer or Zoning Enforcement Officer, charged with
the administration and enforcement of this chapter and to that end
shall have all the power of the administrative official from whose
order, requirement or decision the appeal is taken.
B. Use variances.
(1)
The Zoning Board of Appeals, upon appeal from the decision or
determination of the Zoning Enforcement Officer, shall have the power
to grant use variances, authorizing a use of land which otherwise
would not be allowed or would be prohibited by the terms of this chapter.
(2)
No such use variance shall be granted by the Zoning Board of
Appeals without a showing by the applicant that for each and every
permitted use under the zoning regulations for the particular district
where the property is located the applicable regulations and restrictions
imposed by this chapter have caused unnecessary hardship. In order
to prove such unnecessary hardship, the applicant shall demonstrate
to the Board of Appeals compliance with each of the following criteria:
(a)
That under the applicable regulations and restrictions imposed
by this chapter, the applicant cannot realize a reasonable return,
provided that lack of return is substantial as demonstrated by competent
financial evidence.
(b)
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.
(c)
That the requested use variance, if granted, will not alter
the essential character of the district or neighborhood.
(d)
That 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 is deemed 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.
C. Area variances.
(1)
The Zoning Board of Appeals, upon appeal from the decision or
determination of the Zoning Enforcement Officer, shall have the power
to grant area variances from the area or dimensional requirements
of this chapter.
(2)
In making its determination, the Zoning Board of Appeals shall
take into consideration the benefit to the applicant if the area 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 of Appeals shall also consider each
of the following factors:
(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 other method feasible for the applicant to pursue, other than
an area variance.
(c)
Whether the requested area variance is substantial.
(d)
Whether granting of the proposed area variance will have an
adverse effect or impact on the physical or environmental conditions
in the neighborhood or zoning 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 an area variance, 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.
D. Special use permit approval.
[Added 4-14-1994 by L.L. No. 1-1994]
(1)
The Zoning Board of Appeals shall have the power to issue use permits in accordance with Article
VI of this chapter.
(2)
In acting on any special use permit application, the Board of Appeals shall apply the standards and follow the procedure set forth in Article
VI of this chapter. To the extent that the procedures prescribed for special use permit applications in Article
VI are different from, or inconsistent with, the procedures of the Board of Appeals set forth in §
180-101 of this article, the procedures prescribed in Article
VI shall apply.
[Amended 9-11-1980 by L.L. No. 3-1980; 4-14-1994 by L.L. No.
1-1994]
In exercising its powers as set forth in §
180-100A,
B and
C of this article, the Zoning Board of Appeals shall act in strict accordance with the procedures specified by §§ 267-a and 267-b 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 Code Enforcement Officer or Zoning Enforcement Officer
or to 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 and deliberations of the Board of Appeals shall be open to
the public to the extent provided in Article 7 of the Public Officers
Law.
B. Application and fee. All appeals and applications made to the Board
shall be in writing, submitted in triplicate on forms prescribed by
the Board, within 60 calendar days of the filing of any 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 the
Zoning Board of Appeals pursuant to SEQRA, Article 8 of the Environmental
Conservation Law, and 6 NYCRR 617.
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. Any
other interested party may appear at such public hearing in person,
by attorney or other agent, or submit comments in writing for receipt
prior to the public hearing.
(1) The
Board shall additionally provide notice as follows:
(a)
By publishing at least five calendar days prior to the date
thereof a legal notice in the official newspaper of the Town.
(b) By requiring that the Secretary of the Zoning Board of Appeals or
other designated Town employee provide notice, at least five 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
or directly opposite the land involved in the appeal or otherwise
lying within 300 feet of the intended use. 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.
(2)
The names and addresses of owners notified shall be taken as
such appear on the last completed tax roll of the Town. 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.
D. Required referrals.
(1)
A full statement of any appeal that meets the specific referral
requirements of §§ 239-1 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 30 calendar
days have elapsed since the Planning Department received such full
statement.
(2)
Such actions shall include those which affect property located
within 500 feet of the following:
(b)
The boundary of any existing or proposed county or state park
or other recreation area;
(c)
A right-of-way of any existing or proposed county or state road
or highway;
(d)
An 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)
An existing or proposed boundary or any county- or state-owned
land on which a public building or institution is situated.
(3)
The Zoning Board of Appeals shall additionally refer to the
Town Planning Board all applications for use variances and may refer
to the Planning Board any other matters it deems pertinent for review
and recommendation. 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 calendar days, the Planning Board
shall be deemed to have waived its opportunity to comment on the matter
being referred.
E. Decisions. Every decision of the Zoning Board of Appeals on an appeal
or other application shall be made within 62 calendar 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, including record of compliance with
the applicable provisions of SEQRA, Article 8 of the Environmental
Conservation Law, and 6 NYCRR 617. Every decision shall be by resolution
of the Board, with such decision being filed in the office of the
Town Clerk within five business days thereof, with a copy mailed to
the applicant. The Board shall also notify the Zoning Enforcement
Officer, the Code Enforcement Officer, 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.
F. Attachment of conditions. The Zoning Board of Appeals shall, in the
granting of both use 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 or the period
of time such variance shall be in effect. 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.
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 and subsequent 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 article have been substantially
observed, no applicant or appellant shall be deprived of the right
of application or appeal.
Unless the Zoning Enforcement Officer or the Code Enforcement
Officer, the latter as applicable in case of compliance with the provisions
of the New York State Uniform Fire Prevention and Building Code, 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 Law and Rules 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.