A.
Appeals. The Board of Appeals shall perform the duties
and powers prescribed by the laws of New York State and by this chapter
in connection with requests for variances from this chapter and appeals
to review any order, requirement, decision, interpretation or determination
made by officials charged with the enforcement of this chapter. Unless
otherwise provided by this chapter, the jurisdiction of the Board
of Appeals shall be appellate only and shall be limited to hearing
and deciding appeals from and reviewing any order, requirement, decision,
interpretation or determination made by the administrative officials
charged with the enforcement of this chapter.
B.
Administrative review. The concurring vote of a majority
of the members of the Board of Appeals shall be necessary to reverse
any order, requirement, decision, interpretation or determination
of any such administrative official or to grant a use variance or
area variance. Such appeal may be taken by any person aggrieved or
by an officer, department, board or bureau of the Town. The Board
of Appeals may reverse or affirm, wholly or in part, or may modify
any order, requirement, decision, interpretation or determination
made by officials charged with the enforcement of this chapter. In
so doing, the Board of Appeals shall have all of the powers of such
officials in granting relief in the form of reversal, modification,
affirmation, interpretation or determination.
C.
Variances.
(1)
The Board of Appeals shall have the power to vary
or modify the application of this chapter. Upon appeal for a variance
and after public notice and hearing, the Board of Appeals may grant
such variances relating to the use, area, construction or alteration
of structures or use of land so that the spirit of this chapter is
observed, public safety and welfare secured and substantial justice
done.
(a)
Use variances.
[1]
Use variances shall not 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]
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 neighborhood.
[d]
That the alleged hardship has not
been self-created.
[2]
The Board of Appeals, in the granting of use
variances, shall grant the minimum variance that it deems 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.
(b)
Area variances.
[1]
In its consideration of area variances, the
Board of Appeals shall take into account 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 of Appeals shall also
consider:
[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 method, feasible for the applicant
to pursue, other than an area variance.
[c]
Whether the requested area variance
is substantial.
[d]
Whether the proposed variance will
have an adverse effect or impact on the physical or environmental
conditions in the neighborhood or 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 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.
(2)
Imposition of conditions. The Board of Appeals shall,
in the granting of use variances and/or 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 Town of Milton.
A.
The Town Board, pursuant to the powers granted by
this chapter, shall appoint a Board of Appeals consisting of five
members and shall designate the Chairperson thereof. In the absence
of a Chairperson, the Board of Appeals may designate a member to serve
as Acting Chairperson. All meetings of the Board of Appeals shall
be held at the call of the Chairperson and at such other times as
such board may determine. Such chairperson, or in his or her absence,
the Acting Chairperson, may administer oaths and compel the attendance
of witnesses.
(1)
The Town Board may provide for the compensation of
Board of Appeals members.
(2)
The Town Board may provide for compensation to be
paid to experts, clerks and a Secretary and provide for such other
expenses as may be necessary and proper.
(3)
The Town Board shall require Board of Appeals members
to complete training and continuing education courses in accordance
with requirements for the training of such members.
B.
Terms of members first appointed.
(1)
In the creation of a new Board of Appeals, or the
reestablishment of terms of an existing Board, the appointment of
members to the Board shall be for terms so fixed that one member's
term shall expire at the end of the calendar year in which such members
were initially appointed. The remaining members' terms shall be so
fixed that one member's term shall expire at the end of each year
thereafter. At the expiration of each original member's appointment,
the replacement member shall be appointed for a term which shall be
equal in years to the number of members of the Board.
(2)
Members now holding office for terms which do not
expire at the end of a calendar year shall, upon the expiration of
their term, hold office until the end of the year and their successors
shall then be appointed for terms which shall be equal in years to
the number of members of the Board.
(3)
If a vacancy shall occur otherwise than by expiration
of term, the Town Board shall appoint the new member for the unexpired
term.
C.
Minimum attendance requirements. No member of the
Board of Appeals shall be absent from more than two meetings in any
one calender year. Meetings shall include regular and special meetings
of the Board. Legitimate medical and personal excuses communicated
to the Board Chair prior to the meeting shall be excused.
D.
Training and continuing education. Every member of
the Board of Appeals shall annually attend one or more training or
continuing education course, or the equivalent of four hours, related
to the work of the Board of Appeals. The Chair of the Zoning Board
of Appeals shall approve and document all training and continuing
education. The Town Board shall pay the reasonable expense of such
training or continuing education.
E.
Decreasing membership. The Town Board may, by local
law or ordinance, decrease the number of members of the Board of Appeals
to three to take effect upon the next two expirations of terms. However,
no incumbent shall be removed from office except upon the expiration
of his or her term.
F.
Removal of members. The Town Board shall have the
power to remove, after public hearing, any member of the Board of
Appeals for cause. Any Board of Appeals member may be removed for
noncompliance with minimum requirements relating to meeting attendance
and training as established by the Town Board by local law or ordinance.
G.
Alternate members.
[Amended 12-18-2019 by L.L. No. 2-2019]
(1)
The
Chairperson of the Planning Board or Zoning Board of Appeals may ask
the designated alternate, approved and appointed by the Town Board,
to substitute for a member when such member is unable to participate
on an application or matter before said Board. Situations in which
the Chairperson may ask the alternate to participate may include,
but are not limited to, sickness, family emergencies, travel and conflict
of interest.
(2)
In
cases where the alternate participates due to conflict of interest,
the alternate shall see the application through completion of the
matter before the Board. In cases other than conflict of interest,
the member shall resume responsibility when they return from their
leave, so long as the member and the Board Chairperson feel they have
sufficient knowledge, information and understanding of the project
and application, which decision shall be at the sole discretion of
Board Chairperson. When so appointed to participate, the alternate
member shall possess all the powers and responsibilities of such member
of the Board. Such designation shall be entered into the minutes of
the Planning Board or Zoning Board of Appeals meeting at which the
substitution is made.
H.
All provisions of this section relating to Board of
Appeals member training and continuing education, attendance, conflict
of interest, compensation, eligibility, vacancy in office, removal
and service on other boards shall also apply to alternate members.
In its quasi-judicial role, the Board of Appeals
shall act in strict accordance with the procedure specified by § 267-a
of the Town Law and this chapter.
A.
Meetings. Meetings shall be held at the call of the
Chairman or at such other times as the Board of Appeals may determine.
A quorum shall consist of three 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. A
favorable vote of a majority plus one, i.e., of at least four members,
shall also be required if the action taken by the Board of Appeals
is contrary to an advisory recommendation received from the Saratoga
County Planning Board 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 of the Board of Appeals
shall be open to the public, except in accordance with the executive
session of the Open Meetings Law.[1]
[1]
Editor's Note: See Public Officers Law § 101
et seq.
B.
Application and fee. All appeals and applications
made to the Board shall be in writing, on forms prescribed by the
Board, within 62 days of the 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. 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, or DEIS, as required by the Environmental Conservation
Law.
C.
Public notice and hearing.
(1)
The Board shall fix a reasonable time and place for
a public hearing on any such appeal or application, of which hearing
date the appellant shall be given notice and at which hearing he shall
appear in person or by agent. The Board shall additionally provide
notice as follows:
(a)
By publishing at least five business days prior
to the date thereof a legal notice in the official newspaper of the
Town.
(b)
By requiring that the Secretary of the Board
of Appeals provide notice at least five business days prior to the
date thereof of the substance of every appeal for a variance, together
with a notice of the hearing thereon, by mailing such to the owners
of all property abutting that of the applicant and all other owners
within 300 feet, or such additional distances as the Board of Appeals
may deem advisable, of the boundaries of the land involved in the
appeal. Compliance with this notification procedure shall be certified
to by the Secretary.
(2)
The names and addresses of owners notified shall be
taken as such appear on the last completed tax roll of the Town.
(3)
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.
(4)
If the land involved in the appeal lies within 500
feet of the boundary of any other municipality, the Secretary of the
Board of Appeals shall also submit at least five business 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.
D.
Required referral. 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 Saratoga County Planning Board for its
review. No action shall be taken by the Board of Appeals on such appeal
until an advisory recommendation has been received from said County
Planning Board or 30 days have elapsed since the County Planning Board
received such full statement.
E.
Decisions. Every decision of the Board of Appeals
on an appeal or request shall be made within 62 days of the close
of the hearing by the Board of Appeals, shall be recorded in accordance
with standard forms adopted by the Board of Appeals and shall fully
set forth the circumstances of the case and contain a full record
of the findings on which the decision is based. Every decision shall
be by resolution of the Board of Appeals, with such decision being
filed in the office of the Town Clerk within five business days thereof.
The Board of Appeals shall also notify the Zoning Enforcement Officer
or Code Enforcement Official, the Secretary of the Town 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 days thereof with the Saratoga County Planning
Board.
F.
Attachment of conditions. In all cases where the Board of Appeals grants a variance from the strict application of the requirements of this chapter, it shall be the duty of the Board of Appeals to attach such conditions and safeguards as may be required in order that the result of its action shall be as nearly as possible in accordance with the spirit and intent of this chapter and the criteria for granting relief stated in § 180-74C.
G.
Expiration of approval. Construction of use must be
commenced within one year from the date of granting a variance, and
all work must be completed within two years. If work is not completed
within two years, the applicant must apply for an extension not to
exceed one year from the Board of Appeals. No additional filing fee
will be charged.
H.
Strict construction. All provisions of this chapter
pertaining to the Board of Appeals shall be strictly construed. The
Board of Appeals, 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.
An appeal shall stay all proceedings in furtherance
of the action appealed from, unless the administrative official charged
with the enforcement of this chapter, from whom the appeal is taken,
certifies to the Board of Appeals, after the notice of appeal is filed,
that by reason of facts stated in the certificate a stay would, in
his or her opinion, cause imminent peril to life or property, in which
case proceedings shall not be stayed other than by a restraining order
which may be granted by the Board of Appeals or by a court with jurisdiction
on application, with notice to the administrative official from whom
the appeal is taken, and on due cause shown.
Any person or persons jointly or severally aggrieved
by any decision of the 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 provision of Article
78, except that the action must be initiated as therein provided within
30 days after the filing of the Board's decision in the office of
the Town Clerk.
