A.
Establishment. Pursuant to the provisions of the Town Law, a Zoning
Board of Appeals is hereby established in the Town of Fallsburg.
B.
Appointment. The Board shall consist of five members to be appointed
by the Town Board. The terms of the initial appointees shall be for
one, two, three, four, and five years, etc., from and after the date
of appointment. Their successors, including such additional members
as may be appointed by the Town Board, shall be appointed for the
term of five years after the expiration of the terms of their predecessors
in office.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. IV)]
C.
Appointment to fill vacancies. Appointments to fill vacancies shall
be for the unexpired term of the members whose term or terms become
vacant. Such appointment to fill vacancies shall be made in the same
manner as the original appointment. The Zoning Board of Appeals (ZBA)
may continue to legally operate while vacancies are waiting to be
filled, provided there are enough members to constitute a quorum.
D.
General grant of power. The ZBA shall perform all the duties and
have all the powers prescribed by the laws of the State of New York
and as herein described.
E.
Votes necessary for a decision. Four members of the ZBA shall, regardless
of the number of members at a given point, be a quorum for purposes
of conducting any business. The concurring vote of four of the members
of the Board shall be necessary to reverse any order, requirement,
decision or determination of the Code Enforcement Officer or to decide
in favor of the appellant on any matter upon which it is required
to pass under the terms of this chapter or to effect any variation
of this chapter.
F.
Meetings. All meetings of the Zoning Board of Appeals shall be held
at the call of the Chairman and at such times as such Board may determine.
All hearings conducted by the Zoning Board of Appeals shall be open
to the public. The secretary to the Zoning Board of Appeals shall
keep minutes of its proceedings showing the vote of each member upon
each question, if absent or failing to vote, indicating such fact;
and shall also keep records of its hearings and other official action.
The Board shall have the power to subpoena and require the attendance
of witnesses, administer oaths, compel testimony and the production
of books, papers, files and other evidence pertinent to the matters
before it.
The Zoning Board of Appeals shall hear and decide appeals pursuant
to the provisions of the laws of the State of New York and shall have
the following specific powers:
A.
Variances. The Zoning Board of Appeals may vary or adapt the strict
application of any of the requirements of this chapter where such
strict application would result in practical difficulties or unnecessary
hardship that would deprive the owner of the reasonable use of the
land or building involved.
B.
Appeals from administrative decisions. The Zoning Board of Appeals
shall hear and decide appeals from and review any order, requirement,
decision, or determination made by the Code Enforcement Officer in
administering this chapter. It shall also hear and decide all matters
referred to it or upon which it is required to pass under the provisions
of this chapter.
C.
Interpretation. The Zoning Board of Appeals shall, upon request from
or upon appeal of a decision by the Code Enforcement Officer, decide
any questions involving the interpretation of any provision of this
chapter, including determination of the exact location of any district
boundary if there is uncertainty with respect thereto.
A.
General procedures. The Zoning Board of Appeals (ZBA) shall act in
strict accordance with the procedure specified by § 267-b
of Town Law and by this chapter. All appeals and variance applications
made to the ZBA shall be in writing on forms prescribed by the Board.
Every appeal or variance application shall refer to the specific provision
of this chapter involved and shall exactly set forth the interpretation
that is claimed, the use which is involved or sought, the details
of the variance that is applied for, and the ground on which the Zoning
Board of Appeals should grant the variance. An appeal must be made
within 60 days of the action of the administrative official appealed
from. The applicant must file a signed notice of appeal with the administrative
official from whom the appeal is taken and with the Secretary of the
Zoning Board of Appeals. All information required thereon shall be
complete before an appeal is considered filed. Three copies of the
proper appeal form shall be filed with the Zoning Board of Appeals
along with a fee to be established by the Town Board. This application
must be submitted 15 days prior to the Zoning Board of Appeals' meeting
date.
B.
Variance requirements. Any property owner, tenant or representative
thereof may, in appealing a decision of the Code Enforcement Officer
of the Town of Fallsburg with respect to this chapter, request a variance
from its literal terms. Application for a variance may be made after
an application for a building permit has been denied and shall be
delivered to the Code Enforcement Officer who shall then, in acting
upon the permit application, refer the matter to the Zoning Board
of Appeals for a decision on the variance request. This shall not,
however, preclude an applicant whose permit request has been denied
from subsequently requesting a variance in conjunction with an appeal
of such action if the appeal has been timely filed. The needs or desires
of a particular owner or tenant or of a particular prospective owner
or tenant shall not either, alone or in conjunction with other factors,
afford any basis for the granting of a variance. The fact that the
improvements already existing at the time of the application are old,
obsolete, outmoded or in disrepair or the fact that the property is
unimproved shall not be deemed to make the plight of the property
unique or to contribute thereto.
D.
Property
violations. If a violation notice has been or is issued to the subject
property, the Code Enforcement Officer, with written approval from
the Zoning Board of Appeals Chairperson, may prohibit and/or remove
the application from the Zoning Board of Appeals meeting agenda until
such violation(s) are remedied, unless the purpose of the application
is to remedy such violation(s).
[Added 11-14-2022 by L.L. No. 12-2022]
Two types of variances may be granted by the Zoning Board of
Appeal: area variances and use variances. Area variances involve relief
from dimensional or other requirements for existing uses or uses allowed
within the district under the terms of this chapter. Use variances
involve a use of land not allowed in a district under the terms of
this chapter. Each of the following findings of fact shall be made
in writing by resolution by the Zoning Board of Appeals prior to granting
such variances.
A.
Area variances. 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.
(1)
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 whether:
(a)
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)
The benefit sought by the applicant can be achieved by some
method, feasible for the applicant to pursue, other than an area variance;
(c)
The requested area variance is substantial;
(d)
The proposed variance will have an adverse effect or impact
on the physical or environmental conditions in the neighborhood or
district; and
(e)
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 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.
B.
Use variances. The Zoning 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.
(1)
No such use variance shall be granted by a 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. For example,
if an owner purchases a residentially zoned property for the purpose
of opening a commercial business, the hardship is self-created.
(2)
The Zoning 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.
C.
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.
A.
The Town Board, Code Enforcement Officer or Planning Board of the
Town of Fallsburg may request the Zoning Board of Appeals to decide
any question involving the interpretation of any provision of this
chapter and shall refer such other matters to the Zoning Board of
Appeals as it is required to decide by the provisions of this chapter.
The Zoning Board of Appeals' rules and regulations shall govern these
matters. All matters to be referred to the Zoning Board of Appeals
in such circumstances shall be in writing to the ZBA's Secretary and
be acted on within 62 days of the Secretary's receipt of the same.
B.
Any property owner, tenant, representative thereof or other person
aggrieved by an administrative act of the Code Enforcement Officer
of the Town of Fallsburg with respect to this chapter (i.e., believes
such decision to be in error) may appeal to the Zoning Board of Appeals.
An administrative act shall only include any order, requirements,
decision or determination made by the Code Enforcement Officer. The
Zoning Board of Appeals may reverse or affirm wholly or partly, or
may modify the order, requirement, decision or determination as in
its opinion ought to be made on the premises and to that end shall
have all the powers of the official(s) from whom the appeal is taken.
C.
The administrative official from whom the appeal is taken shall be
responsible, at the direction of the Zoning Board of Appeals, for
providing any applicant with the proper forms and for instructing
the parties concerned on the proper manner for completing and filing
said forms. All information required thereon shall be complete before
an appeal is considered filed.
A.
Time of hearing. The Zoning Board of Appeals shall schedule a hearing
on all appeals on applications within 62 days of the filing of an
application for an appeal.
B.
Notice of hearing. The Zoning Board of Appeals shall give notice
of the hearing at least five days prior to the date thereof by publication
in the official Town paper. In addition, the applicant shall notify
by certified mail at least seven calendar days before the hearing
the following: all owners of property which lie adjacent to that owned
by the applicant and all other owners within 300 feet of the applicant's
property line in any direction. The names of said owners shall be
taken as they appear on the last completed tax roll of the Town.
(1)
Irrelevant or unduly repetitious evidence or cross-examination
may be excluded. Except as otherwise provided by statute, the burden
of proof shall be on the party who initiated the proceedings. No decision,
determination or order shall be made except upon consideration of
the record as a whole or such portion thereof as may be cited by any
party to the proceeding and as supported by and in accordance with
substantial evidence.
(2)
Unless otherwise provided by any statute, the Board need not
observe the rules of evidence observed by courts, but shall give effect
to rules of privilege recognized by law. Objections to evidentiary
offers may be made and shall be noted in the record. Subject to these
requirements, an agency may, for the purpose of expediting the hearing,
and when the interests of parties will not be substantially prejudiced
thereby, adopt procedures for the submission of all or part of the
evidence in written form.
(3)
All evidence, including records and documents in the possession
of the agency of which it derives to avail itself, shall be offered
and made a part of the record, and all such documentary evidence may
be received in the form of copies of excerpts, or by incorporation
by reference. In case of incorporation by reference, the materials
so incorporated shall be available for examination by the parties
before being received in evidence.
(4)
Official notice may be taken of all facts of which judicial
notice could be taken and of other facts within the specialized knowledge
of the Zoning Board of Appeals. When official notice is taken of a
material fact not appearing in the evidence in the record and of which
judicial notice could be taken, every party shall be given notice
thereof and shall on a timely request be afforded an opportunity prior
to the decision to dispute the fact of its materiality.
C.
(Reserved)
D.
Prior to the date of any public hearing, the Secretary of the Zoning
Board of Appeals shall transmit to the Chairman of the 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 Zoning Board
of Appeals an advisory opinion on said appeal or application at any
time prior to the rendering of a decision by the Zoning Board of Appeals.
E.
Should any action by the Zoning Board of Appeals involve any of the
areas specified in §§ 239-l, 239-m and 239-nn of Article
12-B of the General Municipal Law, then the matter shall be referred
prior to final action by the Zoning Board of Appeals to the Sullivan
County Planning Department and/or adjoining municipalities in accordance
with that law. A report of the Board of Appeals' final action must
be submitted to the county within seven days of such action.
F.
The Zoning Board of Appeals must reach a decision within 62 days
of the close of the hearing.
G.
Every decision of the Zoning Board of Appeals shall be recorded in
accordance with standard forms adopted by the Board and shall fully
set forth the circumstances of the case and shall contain a full record
of the findings on which the decision is based. Every decision of
the Board shall be by resolution, and each such resolution shall be
filed in the office of the Town Clerk by case number under one of
the following heads: interpretation, or variances; together with all
documents pertaining thereto. Regarding its decision in each case,
the Zoning Board of Appeals shall notify the Code Enforcement Officer,
Town Board, Planning Board, and the Municipal Clerk of any affected
municipality given notice of hearing.
H.
All the provisions of this chapter relating to the Zoning Board of
Appeals shall be strictly construed. Said board as a body of jurisdiction
shall act in full conformity with all provisions of law and of this
chapter and in strict compliance with all limitations contained therein.
I.
Expiration. Unless construction is commenced and diligently pursued
within six months of the date of the granting of the variance, such
variance shall become null and void.
