The Town Board shall appoint a Board of Appeals
consisting of five members and shall designate the chairperson thereof.
In the absence of the chair, the Board of Appeals may designate a
member to serve as acting chair. The Board of Appeals shall, consistent
with the provisions of town law, determine its own rules of conduct
and procedure.
[Added 6-24-1993 by L.L. No. 2-1993]
A.
Within the first two years after initial appointment,
a Zoning Board member shall attend a training program at an appropriate
level relating to the duties of Zoning Board members, approved in
the manner herein provided.
B.
All other Zoning Board members shall attend training
programs at an appropriate level during their term of office, approved
in the manner herein provided.
C.
After discussion and consultation with the Zoning Board Chair, the Town Board shall establish, by resolution, a list of approved programs and the required minimum hours of attendance, to satisfy the requirements of Subsections A and B. The Town Board may, from time to time, modify and amend the list of approved programs by resolution, after discussion and consultation with the Zoning Board Chair.
D.
The Town Board shall chose programs which relate to
the duties of Zoning Board members. These may include courses, workshops
or training programs sponsored by groups such as the New York State
Association of Towns, the New York State Department of State or certified
training providers, the New York State Department of Environmental
Conservation, the Dutchess County Planning Federation, the Westchester
County Planning Federation, the New York State Planning Federation,
or other appropriate entities.
E.
All training provided pursuant to this section shall
be at town expense.
F.
By December 31 of each year, members of the Zoning
Board shall file with the Town Clerk proof of attendance at any training
programs required by this section.
G.
Noncompliance with minimum requirements relating to
training shall be deemed a proper cause for removal from office. A
Zoning Board member who fails to attend the programs as provided in
this section and specified pursuant to the resolutions promulgated
thereunder, shall be subject to removal following the procedures set
forth in Town Law § 267.
[Added 2-26-2004 by L.L. No. 4-2004]
A.
ALTERNATE VOTING MEMBER
REGULAR ZONING BOARD OF APPEALS MEMBER or ZONING BOARD MEMBER
ZONING BOARD OF APPEALS or BOARD
Definitions. As used in this section, the following
terms shall have the meanings indicated:
An individual appointed by the Town Board to serve as a Zoning
Board of Appeals member, with respect to one or more particular applications
or matters, upon the designation of the Chair or Acting Chair of the
Zoning Board of Appeals, when a regular Zoning Board of Appeals member
is unable to participate or vote on an application or matter before
the Board because such regular Zoning Board of Appeals member has
determined that recusal is appropriate based upon a conflict of interest
or to avoid even an appearance of impropriety; or is absent from a
meeting, whether by reason of illness, vacation, seasonal or temporary
relocation, work assignment, or other cause.
[Amended 2-26-2004 by L.L. No. 6-2004]
An individual appointed by the Town Board to serve on the
Zoning Board of Appeals pursuant to the provisions of Section 267
of the Town Law.
The Zoning Board of Appeals of the Town of East Fishkill
as established by the Town Board, pursuant to the provisions of Section
267 of the Town Law.
B.
The Town Board may appoint one or more alternate voting
members of the Zoning Board of Appeals. Each such alternate voting
member shall serve for a term of five years.
C.
All provisions of New York State law relating to Zoning
Board of Appeals member eligibility, vacancy in office, removal, compatibility
of office, and service on other boards, and any provisions of any
local laws relating to training, continuing education, compensation
and attendance, shall also apply to alternate voting members. Upon
appointing an alternate voting member, the Town Board shall review
the background of any appointee and may, in its discretion, require
that such appointee complete specified training prior to any designation
to serve as an alternate voting member, or within a specified time
thereafter.
D.
The Zoning Board of Appeals Chair, or acting Chair,
shall designate an alternate voting member to serve in the place of
a regular Zoning Board of Appeals member in the following circumstances,
and for the following periods:
[Amended 2-26-2004 by L.L. No. 6-2004]
(1)
When a regular Zoning Board of Appeals member
has recused himself with respect to a matter constituting one or more
particular applications before the Board, the Zoning Board of Appeals
Chair, or acting Chair, shall designate an alternate voting member
to serve in such regular member's place throughout the entire remaining
period of the Zoning Board of Appeals' review, consideration, and
voting, until the matter is concluded.
(2)
When a regular Zoning Board of Appeals member
is absent from a meeting, whether by reason of illness, vacation,
seasonal or temporary relocation, work assignment, or other cause,
the Zoning Board of Appeals Chair, or acting Chair, shall designate
an alternate voting member to serve in the place of such regular Zoning
Board of Appeals member until the regular Zoning Board of Appeals
member returns to service on the Board.
E.
The Zoning Board of Appeals Chair, or Acting Chair, shall designate alternate voting members to serve as needed. In situations where there is more than one eligible alternate voting member, the designation shall take place by lot. At the time of designation of an alternate voting member, the Chair, or acting Chair, shall specify the name of any application or matter for which the designated alternate voting member will serve. The Clerk of the Zoning Board of Appeals shall enter the designation of any alternate voting member or members into the minutes of the meeting at which the designation is made. Where an alternate voting member is designated to serve in the event of an absence under Subsection D(2), the Chair, or Acting Chair, may simply state that the alternate voting member is designated to sit on all matters on the agenda for the meeting, rather than naming each matter individually.
[Amended 2-26-2004 by L.L. No. 6-2004]
F.
Upon appointment by the Town Board, any alternate voting member shall attend the regular and special Zoning Board of Appeals meetings, on the same basis as regular members, but shall participate in discussion, deliberation and voting on the Zoning Board of Appeals only upon being designated by the Zoning Board of Appeals Chair or Acting Chair to serve, as set forth in Subsection E. Upon designation by the Chair or Acting Chair, the alternate voting member shall possess all the powers and responsibilities of a regular Zoning Board of Appeals member for the period of time for which such alternate voting member serves, with respect to any application or matter for which such alternate voting member has been designated.
G.
Prior to deliberating or voting on a matter wherein
the alternate voting member has not been present for all of the Zoning
Board of Appeals meetings or hearings relating to such matter, the
alternate voting member shall become familiar with the Zoning Board
of Appeals' records relating to same, including the application, the
environmental documents, and any other documents in the Zoning Board
of Appeals files, such as minutes of meetings and hearings. Prior
to voting on any such matter or application, the alternative voting
member shall set forth on the record the manner in which such member
has become familiar with the record before the Board.
H.
This section shall not be deemed to require the appointment
of alternate voting members by the Town Board, nor shall it be deemed
to impair or restrict the authority of the Town Board to remove members
of the Zoning Board of Appeals for cause.
I.
It is the intention of this section that Zoning Board
of Appeals members will recuse themselves at the earliest possible
time when a conflict of interest or appearance of impropriety has
arisen, and that the Zoning Board of Appeals Chair or Acting Chair
will thereupon immediately notify the Town Board and designate an
alternate voting member at the earliest possible time after a recusal
has taken place. However, in the case of any pending applications
or matters, where any Zoning Board of Appeals members have already
made recusals, and it has not previously been possible to designate
alternative voting members because this section was not yet enacted,
the Zoning Board of Appeals Chair, or Acting Chair, shall designate
the Alternative Zoning Board of Appeals member or members at the earliest
possible time, so that the Zoning Board of Appeals will be able to
conduct its business with a full complement of members on all pending
matters and applications.
Upon appeal from a decision by an administrative
official, the Board of Appeals shall decide any question 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.
[Amended 6-14-2001 by L.L. No. 3-2001]
[Amended 9-8-1977 by L.L. No. 7-1977; 6-14-2001 by L.L. No. 3-2001]
A.
The Board of Appeals may grant variances as set forth
herein.
(1)
Use variances.
(a)
The Board of Appeals, on appeal from the decision
or determination of the administrative official charged with the enforcement
of this chapter, shall have the power to grant use variances, as defined
in the Town Law.
(b)
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:
[1]
The applicant cannot realize a reasonable return,
provided that lack of return is substantial as demonstrated by competent
financial evidence.
[2]
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.
[3]
That the requested use variance, if granted,
will not alter the essential character of the neighborhood.
[4]
That the alleged hardship has not been self-created.
(c)
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.
(2)
Area variances.
(a)
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 this chapter, to grant area
variances as defined in the Town Law.
(b)
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:
[1]
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;
[2]
Whether the benefit sought by the applicant
can be achieved by some method, feasible for the applicant to pursue,
other than an area variance;
[3]
Whether the requested area variance is substantial;
[4]
Whether the proposed variance will have an adverse
effect or impact on the physical or environmental conditions in the
neighborhood or district; and
[5]
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.
(c)
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.
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 this chapter, and shall be imposed for the purpose of minimizing
any adverse impact such variance may have on the neighborhood or community.
C.
The application for a variance to the Board of Appeals
pursuant to this chapter shall be accompanied by a fee which shall
be fixed from time to time by the Town Board by resolution.
A.
The Board of Appeals shall act in strict accordance
with the procedure specified by law and by this chapter. All appeals
and applications made to the Board shall be in writing and on forms
prescribed by the Board. Every appeal or application shall refer to
the specific provision of the chapter involved and shall exactly set
forth the interpretation that is claimed, the use for which the special
permit is sought or the details of the variance that is applied for
and the grounds on which it is claimed that the variance should be
granted, as the case may be. An application for a use variance must
also contain an agricultural data statement (containing the name and
address of the applicant; a description of the proposed project and
its location; the name and address of any owner of land within the
agricultural district, which land contains farm property upon which
the project is proposed; and a tax map or other map showing the site
of the proposed project relative to the location of farm operations
identified in the agricultural data statement) if any portion of the
project is located on property within an agricultural district containing
a farm operation, or on property with boundaries within 500 feet of
a farm operation located in an agricultural district. An appeal may
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 in the
office of such administrative official. Such appeal shall be taken
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.
[Amended 6-14-2001 by L.L. No. 3-2001]
B.
Public hearing.
[Amended 4-9-1970; 6-14-2001 by L.L. No. 3-2001; 10-26-2006 by L.L. No. 4-2006; 7-26-2007 by L.L. No. 3-2007; 6-22-2017 by L.L. No. 2-2017]
(1)
For the Planning Board, the applicant shall mail by
certified mail, return receipt requested, a copy of the notice published
in the official newspaper of the Town to all owners of property within
500 feet of the subject property (except in the case of appeals to
the Zoning Board of Appeals for dimensional variances, in which case
the notice shall be mailed to owners of property within 250 feet of
the subject property). Said notice shall be mailed 20 days prior to
the public hearing and an affidavit of mailing shall be filed with
the Board's Clerk at least 10 business days before the public hearing,
except for public hearings for special permits, which shall be subject
to the relevant requirements of this chapter.
(2)
For the Zoning Board, the Clerk shall mail by first class a
copy of the notice published in the official newspaper of the Town
to all owners of property within 500 feet of the subject property
(except in the case of appeals to the Zoning Board of Appeals for
dimensional variances, in which case the notice shall be mailed to
owners of property within 250 feet of the subject property). Said
notice shall be mailed 20 days prior to the public hearing and an
affidavit of mailing shall be filed with the Board's Clerk at least
10 business days before the public hearing, except for public hearings
for special permits, which shall be subject to the relevant requirements
of this chapter.
(3)
The applicant will post the property with a notice
advising the public of the public hearing. The posting will be on
a sign provided by the Board to the applicant and the size, shape
and color of which shall be approved by the Board. One sign will be
posted for each 100 feet of road frontage on all public roads abutting
the property. When a property has more than 100 feet of road frontage,
then the Board before which the application is pending shall determine
the number, size and placement of signs to be posted on the property.
The postings will be placed on the property at least 20 days before
the public hearing. An affidavit of posting will be filed with the
Clerk at least 10 days before the public hearing. If the public hearing
is adjourned, the sign will be revised to reflect the adjourned date
within five days of the adjournment. An affidavit attesting to the
change of the date for purposes of adjournment will be filed with
the Clerk at least one day prior to the next hearing date. The notice
required herein shall be removed within five days of the close of
the public hearing.
C.
Decision. The Board of Appeals shall decide upon the
appeal within 62 days after the close of the public hearing. The Board
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 been made in the matter
by the administrative official. In making such determination, the
Board shall have all the powers of the administrative official from
whose order, requirement, decision, interpretation or determination
the appeal is taken. Prior to any decision, the Board of Appeals shall
comply with the provisions of the State Environmental Quality Review
Act. The time within which the Board of Appeals must render its decision
may be extended by mutual consent of the applicant and the Board.
[Amended 3-28-1985 by L.L. No. 4-1985; 6-14-2001 by L.L. No. 3-2001]
D.
Every decision of the Board of Appeals shall be by
resolution, each of which shall contain a full record of the findings
of the Board in the particular case.
E.
Filing and mailing decisions. Every decision or determination
of the Board of Appeals shall be filed in the office of the Town Clerk
within five business days after the decision is rendered, and a copy
mailed to the applicant.
[Amended 6-14-2001 by L.L. No. 3-2001]
F.
Rehearing. Any member of the Board of Appeals may
make a motion to hold a rehearing to review any order, decision or
determination of the Board not previously reheard. Such rehearing
may occur only upon a unanimous vote of all members of the Board then
present. 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 the Board finds that the
rights vested in person acting in good faith in reliance upon the
reheard order, decision or determination will not be prejudiced thereby.[1]
[Added 6-14-2001 by L.L. No. 3-2001]
