A.
Establishment and membership. There shall be a Board
of Appeals of seven members as set forth in § 267 of the
Town Law of the State of New York (except as herein amended under
the Municipal Home Rule Law). The Town Board shall appoint the members,
shall designate a Chairman and may remove any member of the Zoning
Board of Appeals for cause after public hearing. Pursuant to the authority
granted the Town Board under the provisions of the Municipal Home
Rule Law, the members of the Zoning Board of Appeals shall be appointed
for a term of five years, which term of office shall expire on the
31st day of December of the fifth year of the term.
[Amended 3-20-1995 by L.L. No. 1-1995]
(1)
Upon the death, resignation or removal of any member
of the Zoning Board of Appeals who had been appointed prior to the
effective date of this chapter, his/her successor or reappointment
shall either:
(2)
Upon the expiration of the term of a member of the
Zoning Board of Appeals who had been appointed prior to the effective
date of this chapter, his/her reappointment or the appointment of
his/her successor shall be for a term of five years.
(3)
For all members appointed after the effective date
of this chapter, if a vacancy shall occur otherwise than by expiration
of the term (e.g., through death, resignation or removal from office),
it shall be filled by the Town Board by appointment for the unexpired
term.
B.
Procedure. Meetings shall be held at the call of the
Chairman or at other such times as the Zoning Board of Appeals may
determine. A quorum shall consist of four members, but in order to
reverse a decision of the Building and Code Enforcement Officer, authorize
a variance or grant a special permit, an affirmative vote of at least
three members shall be required. The Zoning Board of Appeals shall
keep minutes of its proceedings showing the vote of each member upon
each question and shall keep records of its examinations and other
official actions.
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, provided that none of the
following provisions shall be deemed to limit any power of the Zoning
Board of Appeals that is conferred by law:
A.
Interpretation. To determine on appeal from an order,
requirement, decision or determination made by an administrative official
or, on a request by any official board or agency of the Town, any
of the following matters:
(1)
The meaning of any portion of the text of this chapter
or of any condition or requirement specified or made under the provisions
of this chapter.
B.
Variances.
(1)
To authorize, upon appeal of a decision of the Building
and Code Enforcement Officer and the Chairman of the Planning Board,
such variances from the terms of this chapter as will not be contrary
to the public interest where, owing to exceptional and extraordinary
circumstances, there are unnecessary hardships or practical difficulties
in the way of carrying out of the strict letter of this chapter, subject
to terms and conditions to be fixed by the Zoning Board of Appeals;
provided, however, that no such variance shall be granted unless the
Zoning Board of Appeals finds:
(a)
That there are special circumstances or conditions
fully described in the findings of the Board applying to the land
or building for which the variance is sought, which circumstances
or conditions are unique to such land or building and do not apply
generally to land or buildings in the neighborhood and have not resulted
from any act of the appellant or applicant subsequent to the adoption
of this chapter, whether in violation of the provisions hereof or
not.
(b)
That for reasons fully set forth in the findings
of the Board, the aforesaid circumstances or conditions are such that
the strict application of the provisions of this chapter would deprive
the appellant or applicant of the reasonable use of such land or building
and the granting of the variance is necessary for the reasonable use
of the land or building and that the variance which is granted by
the Board is the minimum variance that will accomplish this purpose.
(c)
That the granting of the variance will be in
harmony with the general purposes and intent of this chapter and will
not be injurious to the neighborhood or otherwise detrimental to the
public welfare.
(2)
Where the Zoning Board of Appeals grants a use variance
for a use permitted in another district, the area standards shall
be that of the district in which the use is permitted. In granting
any variance, the Zoning Board of Appeals shall prescribe any appropriate
safeguards and conditions applying thereto that it may deem to be
necessary or desirable in the public interest, and such determination
shall be recorded on the building permit or the certificate of occupancy,
as the case may be, issued pursuant to such variance.
C.
Recommend zoning amendments. To call to the attention
of the Planning Board conditions where the Zoning Board of Appeals
finds the zoning classification of a particular property is conducive
to the deprivation of the reasonable use of the land or buildings
by the owners thereof and where the Zoning Board of Appeals deems
the same condition to apply generally to other land or buildings in
the same neighborhood or district.
D.
Special permits. To grant special permits for uses where required in Article IV or in any other case as set forth in this chapter where the Zoning Board of Appeals finds that the proposed use complies with the following:
(1)
General standards.
(a)
Each special permit use shall be of such character,
intensity, size and location that in general it will be in harmony
with the orderly development of the district in which the property
concerned is situated and will not be detrimental to the orderly development
of adjacent districts.
(b)
Each special permit use sought in a residence
district shall be so located on the lot involved that it shall not
impair the use, enjoyment and value of adjacent residential properties.
(c)
The nature and intensity of a special permit
use sought in a residence district and the traffic generated by it
shall not be hazardous or detrimental to the prevailing residential
character of the neighborhood.
(d)
Each special permit use in a business district
shall be harmonious with the district in which its location is sought,
shall not create undue pedestrian or vehicular traffic hazards and
shall not include any display of signs, noise, fumes or lights that
will hinder normal development of the district or impair the use,
enjoyment and value of adjacent land and buildings.
(2)
Further conditions. Upon finding that such general standards and any specific standards otherwise set forth in Article IV and the district regulations of this chapter have been fully met, the Zoning Board of Appeals (ZBA) may grant such special permit and in so doing may impose any conditions that it may deem necessary to accomplish the reasonable application of said standards. The ZBA may deny any application for a special permit which, in its judgment, is not in accordance with said general or special standards. The ZBA may require as a condition of the granting of any special permit that it shall be periodically renewed, or the ZBA may grant a temporary special permit, subject to adequate guaranties that the use covered will be terminated at the end of the period specified or such extension thereof as may be granted by the ZBA, provided that any such renewal of extension shall be subject to the same procedure as specified herein for the original granting of the special permit involved and in conformity with the aforesaid general and special standards.
(3)
Preexisting uses deemed to be conforming. Any lawful
use existing at the time of the effective date of this chapter or
any amendment thereof which, if newly created under this chapter,
would require a special permit in the district in which it is situated
may be continued and shall be deemed to be a conforming use, but any
modification, change or extension thereof shall be subject to the
granting of a special permit as provided in this chapter.
The powers and duties of the Zoning Board of
Appeals shall be exercised with the following procedure:
A.
Public hearings.
[Amended 4-1-2013 by L.L. No. 2-2013]
(1)
The Zoning Board of Appeals shall not grant any appeal
or variance or issue any special or temporary permit or interpretation
without first holding a public hearing, notice of which hearing and
of the substance of the appeal or application shall be given by publication
in the official newspaper of the Town at least five days before the
date of such hearing. In addition to such published notice, notice
shall be given of the substance of every appeal and variance and of
every application for a special permit or interpretation, together
with notice of the hearing thereon, by notices thereof being mailed
at least 10 days before the date of said hearing to the owners of
all property abutting that held by the applicant in the immediate
area (whether or not involved in such appeal or application) and to
all other owners within 500 feet, or such additional distance as the
Zoning Board of Appeals may deem advisable, from the exterior boundaries
of the land involved in such appeal or application, as the names of
such owners appear on the last completed assessment roll of the Town.
Such notice shall be by first-class mail in envelopes which have been
addressed and on which required first-class postage has been paid
for and affixed by the applicant, to be mailed by the Secretary of
the Zoning Board of Appeals or another employee or officer of the
Town, who shall complete and file an affidavit of mailing with the
Board listing each address to which the notice was sent. Any or all
of the notices required by this section for the Zoning Board of Appeals
shall be issued by the Secretary of the Zoning Board of Appeals on
order of the Zoning Board of Appeals. The notice shall identify both
the street address of the lot(s) and the section, block and lot number(s)
assigned on the Orange County Tax Map for the Town to the land involved
in the application or appeal. An eleven-inch-by-seventeen-inch copy
of the notice shall also be posted at the property for which the application
is made. The notice must be posted on or near a front property line
within view of the nearest adjacent street right-of-way. If the property
fronts on two or more streets, notices shall be posted on all the
front property lines. The notice must not obstruct traffic visibility.
The applicant shall submit a notarized affidavit of posting and photograph
of the posting to the Secretary of the Zoning Board of Appeals prior
to or on the 10th day prior to the public hearing date. The posted
notice must be maintained and updated with amended information if
there is any change to the information contained in the original notice
until after the public hearing is closed. An applicant shall not be
deemed to have violated the requirement to maintain the notice if
the notice is removed or destroyed by an unrelated party or natural
force and replaced within a reasonable period of time. The notice
must be removed and properly disposed of within 10 days of the close
of the public hearing.
(2)
Provided that due notice shall have been published
as above set forth and that there shall have been substantial compliance
with the remaining provisions of the preceding subsection, the failure
to give notice in exact conformance herewith shall not be deemed to
invalidate action taken by the Zoning Board of Appeals in connection
with the granting of any appeal or variance or issuance of any special
or temporary permit pursuant thereto.
(3)
For those applications to the Planning Board to which the mailing
and posting requirements of this section apply, the words "Planning
Board" shall be substituted for "Zoning Board of Appeals."
B.
Additional notices. Where applicable, notices shall
be given as required by the General Municipal Law, §§ 239-l
and 239-m.
C.
Referral to the Planning Board. At least 10 days before
the date of any public hearing, the Secretary of the Zoning Board
of Appeals shall transmit to the Secretary of the Planning Board a
copy of any appeal or application, together with a notice of such
hearing. The Planning Board may submit to the Zoning Board of Appeals
an advisory opinion on said application or appeal at any time prior
to the rendering of a decision.
D.
Expiration. Unless construction is commenced and diligently
prosecuted within six months of the granting of a variance or special
permit, such variance or special permit shall become null and void.
The six-month period may be extended by the Board for one additional
six-month period.
E.
Forms and fees. All appeals and applications made to the Zoning Board of Appeals shall be in writing, on forms prescribed by the Board, and shall be accompanied by a fee as prescribed by Chapter 104, Fees, of this Code. Fees shall not apply to applications and requests made to the Zoning Board of Appeals by an official, board or agency of the Town.
[Amended 6-16-2014 by L.L. No. 6-2014]
F.
Required information in appeal or application. Each
appeal or application shall fully set forth the circumstances of the
case. Each application for a special permit shall be accompanied by
a proposed plan showing the size and location of the lot and a site
plan showing the location of all buildings and proposed facilities,
including access drives, parking areas, landscaping and all streets
within 200 feet. Every appeal or application shall refer to the specific
provision of this chapter involved and shall exactly set forth, as
the case may be, the interpretation that is claimed, the details of
the variance that is applied for and the grounds on which it is claimed
that the same should be granted or the use for which the special permit
is sought.
G.
Decision.
(1)
Every decision of the Zoning Board of Appeals shall
be recorded in accordance with the standard forms adopted by the Zoning
Board of Appeals and shall set forth the circumstances of the case.
In addition, each decision shall contain a full record of findings
on which the decision is based and any such conditions and safeguards
as may be required in order that the result of its action may be as
nearly as possible in accordance with the spirit and intent of this
chapter. Every decision of the Zoning Board of Appeals shall be by
resolution and shall be filed in the office of the Town Clerk by case
number under one of the following headings: interpretations, variances
or special permits, as the case may be.
(2)
The Zoning Board of Appeals shall notify the Building
and Code Enforcement Officer and each member of the Town Board, the
Secretary of the Planning Board and the Municipal Clerk of any affected
municipality given notice of the hearing as required by law of its
decision in each case.
H.
Strict construction. All the provisions of this chapter
relating to the Zoning Board of Appeals shall be strictly construed.
The Zoning 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.
I.
Conflict with state laws. In case of conflict with
state laws, particularly § 267 of the Town Law and §§ 239-l
and 239-m of the General Municipal Law, any provision of this section
shall be superseded by such provisions. It is intended that this section
shall be interpreted to be in harmony with such state law, and any
requirements set forth in this section are intended to be in addition
to those required by state law.
