Town of Wallkill, NY Article XIII Zoning Board of Appeals

§ 249-43 General responsibilities of members; composition.

A. The Zoning Board of Appeals of the Town of Wallkill shall be governed by the provisions of all applicable state statutes, local laws and ordinances.

B. The Board shall become familiar with all the duly enacted ordinances and laws of the Town of Wallkill under which it may be expected to act, as well as with the applicable state statutes.

C. The Board shall become familiar with the community goals, desires and policies, as expressed in the Town of Wallkill Master Plan, and shall grant the minimum relief which will ensure that the goals and policies of the plan are preserved and substantial justice is done.

D. The Board shall consist of seven members appointed by the Town Board.

(1) All members shall serve for terms of three years.

[Amended 8-28-2003 by L.L. No. 7-2003; 5-10-2007 by L.L. No. 6-2007]

(a) Said terms shall be established so as to expire at staggered time intervals.

(b) If a vacancy occurs by means other than expiration of the term, it shall be filled by the Town Board for the remainder of the unexpired term.

(c) Any member may be removed by the Town Board, for just cause, after a public hearing.

(d) Said just cause shall include absence from two or more consecutive regular meetings or more than five meetings in a calendar year.

(2) The Town Board may designate the Chairman of the Zoning Board of Appeals.

(a) The Chairman shall perform all duties required by all laws and ordinances.

(b) He shall preside at all meetings of the Board.

(c) The Chairman shall decide on all points of order and procedure.

(d) The Chairman shall appoint any standing or special committees found necessary to carry out the business of the Board.

(e) The Chairman may administer oaths and compel the attendance of witnesses as necessary to carry out the business of the Board.

(f) The Chairman's signature shall be the official signature of the Board and shall appear on all decisions as directed by the Board.

(3) The Zoning Board of Appeals shall appoint an Acting Chairman and a Secretary at its annual meeting.

(a) The Acting Chairman shall serve in the absence of the Chairman.

(b) The Acting Chairman shall have all the powers of the Chairman during his absence, disability or disqualification.

(c) The Secretary shall keep records of all Board examinations and any other official actions.

§ 249-44 Powers and duties.

The Zoning Board of Appeals shall have all the powers and duties prescribed by law, which are more particularly specified below, provided that none of the following provisions shall be deemed to limit any power of the Board that is conferred by law:

A. Interpretations. Any board, agency or official of the Town or any member of the general public may request an interpretation concerning:

(1) A determination of the meaning of any portion of the text of this chapter.

(2) A determination of the exact location of any district boundary shown on the Official Zoning Map of the Town.

B. Appeals. The Board shall hear and decide appeals from and review any order, requirement, decision or determination made by any administrative official charged with the enforcement of any local law or ordinance adopted by the Town.

(1) Such appeal may be taken by any person aggrieved or by any officer, department, board or bureau of the Town.

(2) An appeal must be made within 30 days of the action of the administrative official appealed from. The applicant must file a notice of such appeal with the administrative official from whom the appeal is taken and with the Board.

C. Variances. The Board may grant such variances from the terms of this chapter as will not be contrary to the public interest where, owing to exception and extraordinary circumstances, there are unnecessary hardships in the way of carrying out the strict letter of the law.

(1) Area variances. These are utilized when an applicant requests relief, usually of a dimensional nature, from such as yard requirements, setback lines, lot coverage, frontage requirements, etc.

(a) These variances may be granted upon showing of practical difficulties by the applicant on whose shoulders rests the burden of proof.

(b) In granting relief for an area variance, the Board should grant the minimum relief necessary to allow the reasonable use of the land.

(2) Use variance. These are utilized where an applicant desires to use his land for a use not allowed in the particular district. Since the Zoning Board of Appeals has no power to amend a zoning law or map, extreme care should be taken when considering use variances that the action taken does not, in effect, amend the law.

D. All appeals and applications made to the Board shall be made in writing on forms prescribed by the Board. All applications shall be accompanied by a fee as established by the Town Board. No fee shall be charged for an interpretation as made pursuant to Subsection A.

E. Each application shall be accompanied by a proposed plan showing the size and location of the lot and a site plan showing the location of all existing and proposed buildings and structures, all access drives, parking areas, landscaping and all streets within 200 feet of the site.

F. Every application shall refer to the specific section of the law involved and all other pertinent facts involved.

G. Notwithstanding anything contained in the Town Code, no application or appeal of any kind shall be accepted for consideration by the Zoning Board of Appeals unless the applicant submits written confirmation from the appropriate taxing authorities that all property taxes, inclusive of county, Town, school, village and special district taxes, due and payable with respect to a parcel of property which is subject to the proposed application, are paid in full as of the date of the application, with the exception of those taxes which are due within 30 days of the application. Any hardship in complying with this provision may be appealed to the Zoning Board of Appeals for disposition.

[Added 4-9-2015 by L.L. No. 1-2015[1]]

[1] Editor's Note: This local law also provided that it would apply to all properties and property applications within the Town of Wallkill that were pending as of 10-10-2013 and thereafter.

§ 249-45 Meetings.

A. Regular meetings. The Board shall establish its own regular meeting date, to be held at the Town of Wallkill Town Hall.

B. Annual meeting. The annual organizational meeting of the Board shall be the first regular meeting of the year after the Town Board's reorganization meeting.

C. Special meetings. Special meetings of the Board may be called by the Chairman. At least 72 hours' notice shall be given each member of the Board. The Chairman shall also call a special meeting within 10 days of the receipt of a written request from any four (a majority of the Board) members of the Board.

D. Cancellation of meetings. Whenever there are no appeals, variance applications or other business to transact at a regular meeting, the Chairman may dispense with such meeting by notice to all members at least 48 hours prior to the meeting.

E. Proceedings. The order of business at regular meetings shall be as follows: roll call; approval of the minutes of the preceding meeting; actions on cases that have been held over; public hearings, when scheduled; other business; adjournment.

§ 249-46 Quorum; voting.

A. Quorum. A quorum shall consist of at least four members of the Board. No hearing or meeting of the Board shall be held nor any action taken in the absence of a quorum.

B. Voting. All matters shall be decided by a roll call vote.

(1) Decisions on any matter before the Board shall require the affirmative vote of a majority of the entire membership of the Board. A tie vote or a favorable vote by a lesser number than the required majority shall be considered a rejection of the matter under consideration.

(2) No member of the Board shall sit on a hearing or vote on any matter in which he possesses a conflict of interest. Said member shall not be counted by the Board in establishing the quorum for such matter.

(3) No member shall vote on the determination of any matter requiring a public hearing unless he has attended the public hearing thereon. However, where such a member has familiarized himself with such matter by reading the minutes, he shall then be qualified to vote.

§ 249-47 Public hearings.

A. Time of hearing. The Board shall schedule a hearing on all appeals or applications within 60 days of the filing of the appeal or application.

B. Notice of hearing. The Board shall have public notice of the hearing given at least 10 days prior to the date thereof by publication in the official newspaper of the Town.

(1) Also, the applicant shall cause notice to be given to all owners of property within 500 feet of the site except when the site is within those zones designated RA Rural-Agricultural District and RA-1 Low-Density Agriculture District, where all properties within 1,000 feet of the site shall be noticed, or such additional distance as the Board may deem advisable. Furthermore, any appeal to the Board made in conjunction with the denial or referral from the Planning Board or the Office of the Building Inspector of a special use permit application requires notification to all property owners within 1,500 feet of the site, regardless of the zoning district.

[Amended 9-10-2004 by L.L. No. 9-2004; 4-27-2017 by L.L. No. 3-2017]

(a) Such notice shall be mailed by certified mail and proof of compliance shall be given the Board before the hearing is commenced.

(b) The owners shall be those whose names appear on the latest Town tax rolls.

(2) If the property for which the appeal or application is being applied for is located within 500 feet of a municipal boundary, boundary of an existing or proposed county or state park or other recreation area, a right-of-way of any existing or proposed county or state parkway, thruway, expressway, road or highway, or any other county- or state-owned land, the application shall be forwarded to the Orange County Planning Department for its review and action.

(a) The Orange County Planning Department shall have 30 days in which to render a decision on any such appeal or application.

(b) If, within the thirty-day period, the Orange County Planning Department disapproves the proposal or recommends modifications thereof, the Zoning Board of Appeals shall not act contrary to such disapproval or modification except by a vote of a majority plus one of the full Board. If the required vote is obtained to override the county's disapproval, the Board must pass a resolution fully setting forth the reasons for such action.

(3) At least 10 days prior to the date of the hearing, the Board shall transmit a copy of any appeal or application, together with a copy of the notice, to the Planning Board. The Planning Board may submit an advisory opinion on said appeal or application to the Zoning Board of Appeals at any time prior to the rendering of a decision.

(4) Form of notice. Such notice shall state the location of the building or lot; the general nature of the question involved; the date, the time and place of the hearing; and the nature of the relief sought.

C. Proceedings. The order of business at a public hearing shall be as follows: The Chairman shall read the notice and give a brief statement of the case; any correspondence and reports received thereon shall be read; the applicant presents his case; questions from the public; questions from the Board; rebuttal by both sides; adjournment of the hearing; and decision by the Board.

D. General rules. Any applicant may appear in person, by agent or attorney. The Chairman or, in his absence the Acting Chairman, may administer oaths and compel the attendance of witnesses.

§ 249-48 Decisions.

A. Time of decisions. Decisions by the Board shall be made not later than 60 days from the date of the public hearing.

B. Basis for decision. The Board, in reaching said decision, shall be guided by standards in all applicable laws and ordinances, as well as by the community goals and policies as set forth in the Town of Wallkill Master Plan, and by the findings of the Board in each case.

C. Findings. The findings of the Board, and the supporting facts, shall be spelled out in detail regardless of whether they are based on evidence submitted or on the personal knowledge of the Board.

(1) In general, the Board should show that:

(a) It has made an intelligent review of the question.

(b) It has considered all of the information or evidence.

(c) It has heard all parties in question.

(d) Any knowledge it has of the subject under question has been taken into account.

(e) It has made a personal inspection of the parcel in question and from this examination certain findings were ascertained.

(2) Findings of facts for area variances. When the variance requested is an area variance, the Board may grant said variance upon the finding that:

(a) There are practical difficulties, such as:

[1] How substantial the variation is in relation to the requirement.

[2] The effect, if the variance is allowed, of the increased population density, if any, thus produced on available government facilities (fire, water, waste disposal, etc.).

[3] Whether a substantial change will be produced in the character of the neighborhood or a substantial detriment to adjoining properties created.

[4] Whether the difficulty can be obviated by some method feasible for the applicant to pursue, other than a variance.

[5] Whether, in view of the manner in which the difficulty arose and considering all of the above factors, the interests of justice will be served by allowing the variance.

(b) The variance would observe the spirit of the law and would not change the character of the district.

(c) The variance would observe the intent of the Town of Wallkill Master Plan.

(3) Findings of facts for use variances. When the variance requested is a use variance, the Board may grant said variance upon the finding that:

(a) The land in question cannot yield a reasonable return if used only for a purpose allowed in the district in question. The applicant must show that he is suffering a hardship because of the zoning regulations; that his property cannot be put to a permitted use that will provide a reasonable return under normal conditions. Proof of a more profitable return if the use variance is granted is not itself evidence of hardship.

(b) The use to be authorized will not alter the essential character or quality of the neighborhood.

(c) The use variance, if granted, does not effect the letter and spirit of the Zoning Law.

(d) Strict application of the Zoning Law would produce undue hardship and that the hardship is not self-created.

(4) In all decisions of the Board, it shall be the duty of said Board to attach such conditions and safeguards as may be required in order that the results of its action may be in as close accord with the spirit and intent of this chapter as possible.

D. Filing of decisions. Decisions of the Board shall be recorded in accordance with the standard forms adopted by the Board, 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 shall be filed in the office of the Town Clerk, by case number, together with all documents pertaining thereto. The Board shall also notify the Planning Board, Building Inspector, the Orange County Planning Department if its action was mandatory on the given application, and the Town Board of each decision.

E. Expiration of approvals. Unless otherwise specified, all approvals shall be null and void after a period of 12 months following the date that any required site plan approval for which the variance was required is granted, provided that the applicant has applied for such site plan approval or building permit, as the case may be, within 60 days of the decision granting the variance, unless construction has commenced and is diligently pursued. The mere issuance of a building permit shall in no way be construed as fulfilling this subsection.

[Amended 4-9-2015 by L.L. No. 1-2015[1]]

[1] Editor's Note: This local law also provided that it would apply to all properties and property applications within the Town of Wallkill that were pending as of 10-10-2013 and thereafter.

F. Extension of approvals. Prior to the expiration of the twelve-month validity period for a variance, the applicant may petition the Zoning Board of Appeals for an extension of the variance approval for up to six months without the need for a public hearing prior to approval. In no event may the extension of time exceed six months.

[Amended 4-9-2015 by L.L. No. 1-2015[2]]

[2] Editor's Note: This local law also provided that it would apply to all properties and property applications within the Town of Wallkill that were pending as of 10-10-2013 and thereafter.