A Zoning Board of Appeals shall be maintained and operate in
accordance with §§ 267 and 267-a of Article 16 of the
New York State Town Law. Said Board shall consist of five members
appointed by the Town Board for staggered terms of five years. The
Town Board shall annually designate the Chairman of the Board of Appeals,
who shall serve at the pleasure of the Town Board. The Board of Appeals
shall annually designate its Secretary. Said Board may prescribe reasonable
rules, in addition to those provided herein, for the conduct of its
affairs, subject to the approval of the Town Board. In the absence
of a Chairman, the Board of Appeals may designate a member to serve
as Acting Chairman. No person who is a member of the Town Board or
Planning Board shall be eligible for membership on such Board of Appeals.
In accordance with New York State Town Law, all Board of Appeals members
shall complete a minimum of four hours of training per year, as a
condition to reappointment to said Board, in a manner prescribed by
the Town Board, and shall also complete such other training and continuing
education courses as may be prescribed by state laws, rules and regulations.
The provisions set forth in § 267 of the Town Law with regard
to vacancies in office, removal of members, and alternate members
are incorporated herein and shall apply to the Board of Appeals.
The Zoning Board of Appeals shall have all the powers and duties
prescribed by § 267 of Article 16 of the Town Law and by
this Zoning Law, which are more particularly specified as follows:
A.
Orders, requirements, decisions, interpretations and determinations.
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 Zoning Enforcement
Officer or Code Enforcement Officer, charged with the administration
and enforcement of this Zoning Law, 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. The Zoning Board of Appeals, upon appeal from the
decision or determination of an administrative official, 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 Zoning Law.
(1)
No such use variance shall be granted by the Zoning Board of
Appeals without a showing by the applicant that the applicable regulations
and restrictions imposed by the Zoning Law have caused unnecessary
hardship. In order to prove such unnecessary hardship, the applicant
shall demonstrate to the Zoning Board of Appeals that for each and
every permitted use under the Zoning Law for the particular district
where the property is located:
(a)
That the applicant cannot realize a reasonable return, provided
that the 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; and
(d)
That the alleged hardship has not been self-created.
(2)
The Zoning 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 proved 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. The Zoning Board of Appeals, upon appeal from the
decision or determination of the Code Enforcement Officer or Zoning
Enforcement Officer shall have the power to grant area variances.
(1)
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 Zoning 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 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.
(2)
The Zoning 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.
In its quasi-judicial role, the Zoning Board of Appeals shall
act in strict accordance with the procedure specified by § 267-a
of the Town Law and this Zoning Law.
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 simple majority, i.e., three of the members, but
in order to reverse a decision of the Zoning Enforcement Officer or
authorize a variance, an affirmative vote of at least three members
shall be required. An affirmative vote of a majority plus one, i.e.,
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 and Development
under the provisions of § 239-m 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,
and shall keep records of its examination and other official actions.
All meetings of the Board of Appeals shall be open to the public to
the extent provided in Article 7 of the Public Officers Law.[1]
B.
Application and fee. All appeals and applications made to the Zoning Board of Appeals shall be in writing, on forms prescribed by the Board, within 60 days of the filing of the decision, determination or order of the official appealed from, as set forth in Article XIV of this Zoning Law, 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 the Zoning Law or Uniform Code that is involved and shall precisely set forth either the interpretation that is claimed or the details of the variance or other relief that is applied for and the ground on which it is claimed that such variance or other relief 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 Part 617.
C.
Stays. An appeal shall stay all proceedings, in accordance with the provisions of Article XIV of this Zoning Law.
D.
Public notice and hearing. The Board of Appeals shall fix a reasonable
time and place for a public hearing on any such appeal or application.
The appellant shall be given notice of the hearing date and of the
fact that at such hearing he or she shall appear in person or be represented
by attorney or other agent. Any other interested party may appear
at such public hearing in person or be represented by attorney or
other agent, or submit comments in writing for receipt prior to, or
at the time of, the public hearing. The Board of Appeals shall additionally
provide notice as follows:
(1)
By publishing at least five calendar days prior to the date
thereof a legal notice in the official newspaper or paper of general
circulation in the Town.
(2)
In any application or appeal for a variance, by requiring that
the Secretary of the Zoning Board of Appeals 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 to the owners of all property abutting, or directly
opposite, that of the applicant and to all other owners within 250
feet, or such additional distances as the Board of Appeals may deem
advisable, of the application. Compliance with this notification procedure
shall be certified to by the Secretary and the Town shall charge the
applicant either a flat rate or a statement amount per notice for
satisfying this requirement.
[Amended 5-21-2015 by L.L. No. 2-2015]
(3)
The cost of any such notification shall be borne by the appealing
party and paid to the Zoning Board of Appeals prior to the hearing
of such appeal.
(4)
The names and addresses of owners notified shall be taken as
such appear on the last completed tax roll of the Town.
(5)
Provided that there has been substantial compliance with this
provision, failure to give notice in exact conformance herewith shall
not be deemed to invalidate an action taken by the Zoning Board of
Appeals in either granting or denying a variance from a specific provision
of this Zoning Law.
(6)
If the land involved in the appeal lies within 500 feet of the
boundary of any other municipality, the Secretary of the Zoning Board
of Appeals shall also submit, at least five calendar days prior to
the public hearing, to the municipal clerk of such other municipality
or municipalities a copy of the notice of the substance of every appeal,
together with a copy of the official notice of such public hearing.
E.
Required referrals. A full statement of any appeal that meets the
specific referral requirements of §§ 239-l and 239-m
of the General Municipal Law shall also be referred, prior to the
public hearing, 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 Dutchess County Department of Planning and
Development for its review. No action shall be taken by the Board
of Appeals until an advisory recommendation has been received from
said County Planning and Development Department or 30 calendar days
have elapsed since the Planning and Development Department received
such full statement. In the event that the County Planning Board recommends
disapproval of the requested variance or the attachment of conditions
thereto within such time period or at a later date prior to final
action by the Zoning Board of Appeals, the Board of Appeals shall
not act contrary to such recommendation except by a vote of a majority
plus one of all the members after the adoption of a resolution fully
setting forth the reasons for such contrary action. Within 30 days
after such final action, the Board of Appeals shall file with the
County Planning Board a report of the final action it has taken.
F.
Decisions. Every decision of the Zoning Board of Appeals on an appeal
or request 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 SEQR, Article 8 of the Environmental Conservation Law
and 6 NYCRR Part 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 and a copy mailed to the applicant.
The Board shall also notify the Code Enforcement Officer and Zoning
Enforcement Officer within five business days of the decision, and
shall additionally notify 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 with the Dutchess County Department of Planning and Development
within seven calendar days thereof.
G.
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
and incidental to the proposed use of the property, or the period
of such time such variance shall be in effect. Such conditions shall
be consistent with the spirit and intent of this Zoning Law, and shall
be imposed for the purpose of minimizing any adverse impact such variance
may have on the neighborhood or community.
H.
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 or action by the Zoning Board of Appeals.
I.
Strict construction. All provisions of this Zoning Law pertaining
to the Zoning Board of Appeals shall be strictly construed. The Zoning
Board of Appeals shall act in full conformity with all provisions
of law and of this Zoning Law and in strict compliance with all limitations
contained therein; provided, however, that if the procedural requirements
set forth in this Zoning Law have been substantially observed, no
applicant or appellant shall be deemed deprived of the right of application
or 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.
A motion for the Zoning Board of Appeals to hold a hearing 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 is required for such rehearing to occur.
Such rehearing is subject to the same notice provisions as an original
hearing. Upon such rehearing, the Zoning Board of Appeals may reverse,
modify or annul its original order, decision or determination upon
a unanimous vote, 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.
All other provisions of § 267-a of the Town Law with
regard to Zoning Board of Appeals procedure, not set forth herein,
are incorporated herein by reference and shall apply to the Zoning
Board of Appeals.
