A.
A Zoning Board of Appeals shall be maintained in accordance
with § 267, Subdivision 7, Article 16, of the Town Law,
except as otherwise provided for in the Town Code. Said Board shall
consist of five members appointed by the Town Board for staggered
terms of five years.
[1]
Editor's Note: This local law also supersedes
§ 267, Subdivision 2, of the Town Law.
B.
The Town Board shall annually designate the Chairman
of the Zoning Board of Appeals, while the Board shall annually designate
its Secretary and may prescribe reasonable rules, in addition to those
provided herein, for the conduct of its affairs. No person who is
a member of the Town Board or Planning Board shall be eligible for
membership on such Board of Appeals.
C.
Alternate members shall be appointed to the Zoning Board of Appeals pursuant to the procedures set forth in Chapter 3 of the Code of the Town of Red Hook. All provisions of state law and of this article pertaining to member eligibility, vacancy in office, removal, compatibility of office and service on other boards, training, continuing education, compensation and attendance shall also apply to alternate members.
[Added 4-8-2008 by L.L. No. 5-2008]
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 Building Inspector or the 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 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 is deprived of all economic
use and benefit from the property in question, which deprivation must
be established 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 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.
In its quasi-judicial role, the Zoning Board
of Appeals shall act in strict accordance with the procedures specified
by § 267 of the Town Law and this chapter.
A.
Meetings. Meetings shall be held at the call of the
Chair or at such other times as the Zoning Board of Appeals may determine.
A quorum shall consist of a majority of all of the members of the
Zoning Board of Appeals as fully constituted, regardless of vacancies
or absences. In order to reverse a decision of the Building Inspector
or the Zoning Enforcement Officer or to authorize a variance, an affirmative
vote of the majority of the members of the Zoning Board of Appeals
as fully constituted shall be required. A favorable vote of a majority
plus one shall 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-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. 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.
[Amended 6-11-2013 by L.L. No. 6-2013]
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 and escrow in accordance with Chapter 70 of the Red Hook Town Code. 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.
[Amended 1-15-2008 by L.L. No. 2-2008]
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. The Board 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 of the Town.
(2)
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.
(a)
The names and addresses of owners notified shall
be taken as such appear on the last completed tax roll of the Town.
(b)
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-l 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:
(a)
Municipal boundary.
(b)
Boundary of any existing or proposed county
or state park or other recreation area.
(c)
Right-of-way of any existing or proposed county
or state road or highway.
(d)
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.
(e)
Existing or proposed boundary of 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 calendar 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 any rights concerning
the matter being referred.
E.
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 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 10 calendar days thereof. The Board shall also notify
the Zoning Enforcement Officer, the Building Inspector, 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 such 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 or 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 chapter 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
Building Inspector, 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.
