Castelton On Hudson Village
City Zoning Code
City Zoning Code
ARTICLE XIII
Board of Appeals
§ 210-82 Creation, appointment and organization.
A.
Creation. Pursuant to § 7-712 of the Village Law, the Mayor shall appoint a five-member Board of Appeals, subject to approval by the Board of Trustees, to interpret and judge the application of provisions of this chapter and to grant or deny variances.[1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).
B.
Term of office.
(1)
Pursuant to § 7-712, the term of the five members shall expire at the end of the official year as follows:
One member | 3 years | |
One member | 3 years | |
One member | 2 years | |
One member | 2 years | |
One member | 1 year |
(2)
At the expiration of these terms, successors shall be appointed for terms of five years.
(3)
Vacancies shall be filled by appointment of the Mayor, subject to approval by the Village Board, for the unexpired term.
(4)
The Mayor, subject to the approval of the Village Board, shall appoint the Chairperson and Vice Chairperson of the Board of Appeals.[2]
[2]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).
C.
Organization.
(1)
General operations.
(a)
Subject to Village Board approval, the Board of Appeals has the power to make, promulgate and adopt written rules, procedures and bylaws or forms necessary for the proper execution of its duties and securing the intent of this chapter.
(b)
The Village Board shall provide operating expenses for the Board of Appeals. Board of Appeals expenditures shall not exceed the amount of appropriations.
(c)
The Board of Appeals may employ the clerical or other staff necessary for the proper function of the Board.
(2)
Meetings.
(a)
The Board of Appeals shall hold meetings at the call of the Chairperson or at other times the Board may determine.
(b)
All meetings shall be subject to the Open Meetings Law.
(c)
The Chairperson, or Vice Chairperson in the absence of the Chairperson, has the power to administer oaths and compel the attendance of witness.[3]
[3]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).
(3)
Minutes.
(a)
The Board of Appeals shall keep proper minutes of its meetings and records of its examinations and other official actions.
(b)
The minutes shall show how each member voted on every question. The minutes shall also indicate if a member is absent or fails to vote.
(c)
The Board of Appeals shall file a record of all determinations with the Village Clerk for the public record.
§ 210-83 Powers and duties.
The Board of Appeals shall have all the powers and duties prescribed by law and more particularly specified by this chapter. However, none of the following provisions shall be deemed to limit any power of the Board that is conferred by law.
A.
Interpretation. Upon appeal from a decision, order, requirement or determination made by an administrative official, to decide any of the following questions:
(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.
(2)
The exact location of any district boundary shown on the Zoning Map.
B.
Variances.
[Amended 10-27-1997 by L.L. No. 6-1997]
(1)
Use variances.
(a)
The Board of Appeals, on appeal from the decision or determination of the Building Inspector, shall have the power to grant use variances.
(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 and 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 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.
(2)
Area variances.
(a)
The Zoning Board of Appeals shall have the power, upon an appeal from a decision or determination of the Building Inspector, to grant area variances.
(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.
[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.
(3)
In no case shall a variance be granted solely for reasons of additional financial gain to the owner of the land or building involved. The fact that the improvements already existing at the time of the application are old, obsolete, outmoded or in disrepair, or the fact that the property is then unimproved, shall not be deemed to make the plight of the property unique or to contribute thereto.
(4)
Where the Board of Appeals finds the zoning classification of a particular property to be conducive to the deprivation of the reasonable use of the land or buildings, and where the Board finds the same condition to apply generally to other land or buildings in the same neighborhood or zoning district, the Board of Appeals shall call this condition to the attention of the Village Board.
(5)
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 to attach 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.
(6)
Unless construction is commenced and diligently pursued within six months of the date of the granting of a variance, such variance shall become null and void.
C.
Procedure. The powers and duties of the Board of Appeals shall be exercised in accordance with § 7-712 of the Village Law, the procedures specified by this chapter and their own bylaws.
(1)
All appeals and applications made to the Board of Appeals shall be in writing in a form prescribed by the Board of Appeals and shall be accompanied by a fee as set forth in the fee schedule established by the Village Board, payable to the Village Clerk for not less than the actual and necessary costs of advertising and holding a public hearing. The Board of Appeals may, in its discretion, recommend a refund to the applicant for part or all of the fee paid by him in the event that his appeal under Subsection A, Interpretation, is partially or wholly successful. The fee filed in connection with applicants under Subsection B, Variances, shall not be returnable regardless of the disposition of the case by the Board.
(2)
The Board of Appeals shall not decide upon any appeal for a variance or an interpretation of this chapter without first holding a public hearing, notice of which, including the substance of the appeal or application, shall be given by publication in the official newspaper of the Village at least five days prior to the date of the hearing. In addition to the published notice, the Board of Appeals shall notify by mail at least five days before the hearing all owners of property which lie adjacent to the property for which relief is sought and to such other owners as the Board of Appeals may deem advisable.[1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).
(3)
The Board of Appeals shall schedule a hearing on each appeal for a variance or interpretation of this chapter within 45 days from receipt of the appeal. The Board of Appeals shall render its decision on each appeal within 62 days after the final hearing.
(4)
Fifteen days prior to the date of any public hearing, the Secretary of the Board of Appeals shall transmit to the Secretary of the Planning Board a copy of any appeal or application, together with a notice of the hearing. The Planning Board shall submit to the Board of Appeals an advisory opinion on the appeal or application at any time prior to the rendering of a decision by the Board of Appeals.
(5)
Referral to Rensselaer County Bureau of Budget, Research and Planning.
(a)
In accordance with §§ 239-l and 239-m of Article 12B of the General Municipal Law, the Board of Appeals shall refer any appeal for a variance or application for interpretation involving the provisions of this chapter to the Rensselaer County Bureau of Budget, Research and Planning when the action affects property located within 500 feet of:
[1]
A municipal boundary.
[2]
The boundary of any existing or proposed county or state park or other recreation area.
[3]
The right-of-way of any existing or proposed county or state parkway, thruway, expressway, road or highway.
[4]
The 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.
[5]
The existing or proposed boundary of any county- or state-owned land on which a public building or institution is situated.
(b)
Such referral shall be made 30 days prior to the date of the public hearing. If the Rensselaer County Planning Advisory Board recommends modification or disapproval, the Board of Appeals may act contrary to the recommendation only by a vote of a majority plus one of the entire Board and by adopting a resolution fully setting forth reasons for such contrary action.
(c)
In addition, the Board of Appeals shall send notification of any pending variance or interpretation action within 500 feet of a municipal boundary to the Clerk of that municipality not later than 10 days prior to the date of the public hearing.
(6)
Relief from decisions of the Board of Appeals. An appellant aggrieved by any decision of the Board of Appeals may apply to the New York State Supreme Court for relief under Article 78 of the Civil Practice Law and Rules of New York State, pursuant to § 7-712 of the Village Law.