East Greenbush City Zoning Code
ARTICLE V
Zoning Board of Appeals
§ 57-65 General provisions.
A.
Establishment. There is hereby established a Board of Appeals pursuant to Town Law which shall consist of five members appointed by the Town Board, who shall designate one member as Chairman. A member of the Board of Appeals shall not at the same time be a member of the Town Board. The Town Board may fix the compensation of such members and provide for the payment thereof. The Town Board shall have the power to remove any member of the Board of Appeals for cause and after public hearing.
[Amended 3-17-2021 by L.L. No. 2-2021]
B.
Terms of successor appointments. The terms of the successor appointments to the five current Board members shall be as follows:
[Amended 3-17-2021 by L.L. No. 2-2021]
(1)
Term expiring December 31, 2021: five-year terms thereafter.
(2)
Term expiring December 31, 2022: five-year terms thereafter.
(3)
Term expiring December 31, 2022: three-year term; followed by five-year terms thereafter.
(4)
Term expiring December 31, 2023: five-year terms thereafter.
(5)
Term expiring December 31, 2024: five-year terms thereafter.
C.
Rules of procedure, bylaws, forms. The Board of Appeals shall have the power to make, adopt, and promulgate such written rules of procedure, bylaws and forms as they may deem necessary for the proper execution of their duties and to secure the intent of this chapter. Such rules, bylaws and forms shall not be in conflict with, nor have the effect of waiving, any provisions of this chapter or any other ordinances, laws or regulations of the Town of East Greenbush. Such rules, bylaws, and forms, and any subsequent amendments of supplements thereto, shall be submitted to the Town Board by the Board of Appeals for approval and filing for public view. The Town Board shall move to approve, reject, or modify such rules, bylaws, and forms within 30 days after submission. Failure of the Town Board to so move shall be construed to constitute approval thereof.
D.
Staff. The Board of Appeals may employ such clerical or other staff assistance as may be necessary, and prescribe their duties, provided it shall not at any time incur expenses beyond the amount of the appropriation made and then available for that purpose.
§ 57-66 Authority.
A.
Governance; functions.
(1)
The Board of Appeals is governed by and shall act in strict accordance with procedures specified by Town Law, this chapter, and its own duly adopted rules, bylaws, and forms, and shall perform the following functions:
(a)
Decide any question properly brought before it involving the interpretation of any provision of this chapter;
(b)
Hear and decide appeals from any decision, determination, act, or failure to act of the Code Enforcement Official, and all matters properly referred to it by the Code Enforcement Official;
(2)
The Chairman of the Board of Appeals, and in their absence the Acting Chairman, may administer oaths and compel the attendance of witnesses at meetings and hearings.
B.
Public hearing notice.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
(1)
The Board of Appeals shall after due notice hold a public hearing on every appeal or application for a variance or for a special use permit referred or taken to said Board or upon which it is required to pass, in accordance with this chapter and the Town Law.
(2)
The Board of Appeals shall have published a notice of each such hearing in a newspaper of general circulation in the Town of East Greenbush at least 10 days prior to such hearing. The applicant shall be responsible for payment of this notice.
C.
Property owner notification. At least seven days prior to such public hearing, the Board of Appeals shall have sent by registered mail the notice of such hearing and an explanation of the variance sought to all property owners within 200 feet of the subject property. Such notices shall be sent to the last-known address as shown by the most recent Town tax records. The applicant shall be responsible for costs associated with property owner notifications issued in accordance with this section.
[Added at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
D.
Findings and conclusions. After such public hearing and after considering the application, the Board of Appeals shall either grant or deny the variance or special use permit and shall make written findings of fact and conclusions concerning the subject matter of such hearing, including the reasons for the granting or denial of the relief sought. As to any proposed use, such findings of fact and conclusions shall be made concerning such use as described and represented by the applicant.
E.
Reporting and filing and decisions, permits, and variances. Every official and final decision of the Board of Appeals shall be by written resolution, each of which shall contain a full record of its findings in the particular case, and each of which shall be filed in the office of the Town Clerk together with all pertinent documents. The Board of Appeals shall notify the Town Board and the Planning Board, in writing, of each special use permit and variance issued or granted under provisions of this chapter.
F.
Rehearing and reversal. Upon motion initiated by any member and adopted by a unanimous vote of all members present, the Board of Appeals may vote to give notice and hold one rehearing to review any order, decision, or determination previously made. After such rehearing, the Board upon the concurring vote of all members present, and provided it shall then appear that the rights vested prior thereto in persons acting in good faith in reliance upon the order, decision, or determination reviewed will not be subject to prejudice thereby, may reverse, modify, or annul its original order, decision, or determination.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
§ 57-67 Interpretation.
A.
The Board of Appeals shall upon proper request interpret any provision of this chapter about which there is uncertainty, lack of understanding or misunderstanding, ambiguity, or disagreement and shall determine the exact location of any zoning district boundary about which there may be uncertainty or disagreement.
B.
Every request for an interpretation shall be made in the form and manner prescribed by rules of procedure adopted by the Board of Appeals and shall set forth exactly the interpretation which is claimed or sought.
§ 57-68 Variances.
The Board of Appeals shall receive applications for and have the power to grant a variance in the applications of any of the provisions of this chapter to a particular property, relating to the area, bulk, construction, or alteration of buildings, or any part thereof, in such a way that the spirit of this chapter shall be observed and maintained; public health, safety, and welfare secured; and substantial justice done.
A.
Application. Application for such variance may be made on an appropriate form by any property owner in the Town of East Greenbush allegedly aggrieved by the strict application of any of the provisions or requirements of this chapter or who may desire to deviate therefrom.
B.
Statement by applicant. Such application shall clearly state the specific provisions of this chapter from which variance is sought, the special circumstances which allegedly justify such variance, and the interpretation or ruling which is desired.
C.
Criteria for granting variance.
(1)
Use variances.
(a)
The Board of Appeals, on appeal from the decision or determination of the administrative official charged with the enforcement of such ordinance or local law, shall have the power to grant use variances, as defined herein.
(b)
No such use variance shall 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.
[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; and
[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 such ordinance or local law, to grant area variances as defined herein.
(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.
D.
Financial gain not a criterion. In no case shall a variance be granted solely for reasons of additional financial gain on the part of the owner of the land or building involved.
E.
Conditions. In granting any variance, the Board of Appeals may prescribe any conditions that it deems necessary or desirable.
F.
Compliance with rest of chapter. The granting of a variance to any provisions of this chapter shall not obviate the necessity of complying in every other respect with the other provisions of this chapter.
G.
Fee. Each application to the Board of Appeals for variance shall be accompanied by the applicable fee in accordance with the fee schedule established and annually reviewed by the Town Board.
§ 57-69 Review of applications for special use permits.
See § 57-55.
§ 57-70 Appeals.
A.
Any persons allegedly aggrieved by a decision, determination, act, or refusal to act the Code Enforcement Official may file an appeal with the Board of Appeals.
B.
All appeals shall be made in the form and manner prescribed by rules of procedure adopted by the Board of Appeals and shall state the decision, determination, act, or failure to act of the Code Enforcement Official from which the appeal is taken.
C.
The Board of Appeals may reverse, affirm, wholly or partly, or may modify any order requirement, decision or determination appealed from and shall make such order, requirement, decision, or determination as in its opinion ought to be made in any case referred to it, and to that end shall have all the powers of the Code Enforcement Official from who the appeal is taken.
D.
The concurring vote of four members of the Board of Appeals shall be necessary to reverse any order, requirement, decision, or determination of the Code Enforcement Official or to decide in favor of the applicant any matter upon which such Board is required to pass.
E.
Any appeal from a decision of the Code Enforcement Official properly filed with the Board of Appeals shall stay all proceedings in furtherance of the action appealed from, unless the Code Enforcement Official certifies to the Board of Appeals that by reason of facts stated in the certification a stay would, in their opinion, cause imminent peril to life and property.
F.
The Board of Appeals shall have the power to grant a restraining order to stay all proceedings in furtherance of the action appealed from, over any action by the Code Enforcement Official from whom the appeal is taken, upon notice to the Code Enforcement Official and on due cause shown.