Fishkill Village City Zoning Code
ARTICLE XIV
Zoning Board of Appeals
§ 171-143 Establishment; membership.
[Amended 8-14-1989 by L.L. No. 3-1989]
There is hereby established a Zoning Board of Appeals, which shall consist of five members appointed by the Village Board. No person who is a member of such Village Board shall be eligible for membership on the Board of Appeals. The Mayor shall have the power to remove any member of the Board of Appeals for cause and after a public hearing.
[Amended 11-13-1995 by L.L. No. 3-1995]
Board of Appeals members shall complete, within 12 months of their appointment and at Village expense, approved courses in the planning process and the State Environmental Quality Review (SEQR) process. Subsequently, all Board of Appeals members shall complete a formal training program or review of planning law and procedures, at Village expense, at least once every two years. Records of all such training shall be kept in the minutes of the Board of Appeals. Failure to complete such courses shall constitute cause for dismissal from the Board of Appeals.
§ 171-144 Terms of office; vacancies.
[Amended 8-14-1989 by L.L. No. 4-1989]
In the event of a vacancy in office or the expiration of a term of office, the Village Board shall appoint a successor who shall serve for the unexpired term of the member whose place has become vacant. At a duly convened meeting of the Village Board, the Mayor shall present the name of at least one candidate per vacancy not less than one week prior to the date on which the Village Board will vote on the appointment. The Village Board may waive the one-week prior notice by a unanimous vote of the Board members present.
[Amended 11-13-1995 by L.L. No. 3-1995]
The term of each Board of Appeals member shall be defined to begin on June 1 of the year of appointment and to end on May 31, five years from the date of appointment. Only one term shall expire in any calendar year. The members of the Board of Appeals in office at the time of the adoption of this chapter shall be assigned by the Village Board to the term which most closely matches the sequence of planned expiration dates of their current terms and shall continue in office until the end of the term for which they were appointed and until their successors have been appointed as herein provided.
§ 171-145 Organization and staff.
The Village Board shall designate a member of said Board of Appeals to act as Chairman thereof, or, upon failure so to do, the Board of Appeals shall elect a Chairman from its own members. The Board of Appeals shall also elect one of its own members as Acting Chairman to serve in the absence of the Chairman and shall designate one of its members as Secretary. The Board of Appeals may employ such clerical or other staff assistance as may be necessary and prescribe their duties, provided that it shall not at any time incur expenses beyond the amount of the appropriation made and then available for that purpose.
§ 171-146 Promulgation of rules of procedure, bylaws and forms.
The Board of Appeals shall have the power to make, adopt and promulgate such written rules of procedure, bylaws and forms as it may deem necessary for the proper execution of its duties and to secure the intent of this chapter. Such rules, bylaws and forms shall not be in conflict with or have the effect of waiving any provisions of this chapter or any other ordinances or local laws of the Village of Fishkill. Such rules, bylaws and forms and any subsequent amendments or supplements thereto shall be submitted to the Village Board by the Board of Appeals for approval and filing for public inspection. The Village Board shall move to approve, reject or modify such rules, bylaws and forms within 30 days after submission. Failure of the Village Board to so move shall be construed to constitute approval thereof.
§ 171-147 Powers and duties.
[Amended 11-13-1995 by L.L. No. 3-1995]
The Zoning Board of Appeals shall have all the powers and duties prescribed by law, which powers and duties are summarized and more particularly specified hereinafter; provided, however, that none of the following provisions shall be deemed to limit any power of the Board of Appeals conferred by §§ 7-712, 7-712-a and 7-712-b of the Village Law:
Appeals. Upon application by any person aggrieved or by an officer, department, board or bureau of the Village, the Board of Appeals shall hear and decide appeals from and review any order, requirement, decision or determination made by an administrative official charged with the enforcement of this chapter.
Interpretation. Upon appeal from a decision of an administrative officer, the Board of Appeals shall decide any question involving the interpretation of any provision of this chapter, including determination of the exact location of any district boundary, if there is uncertainty with respect thereto.
Variances. The Board of Appeals shall have the power to vary or modify the application of any of the regulations or provisions of this chapter relating to the use, construction or alteration of buildings or structures or the use of land, upon application by an appellant.
§ 171-148 Criteria for decisions.
General standards. In each matter before it, in addition to the more specific standards applicable thereto, if any, as hereinafter set forth, the Board of Appeals shall take into consideration the public health, safety and general welfare and in all cases shall exercise its powers subject to appropriate conditions and safeguards so that the spirit of this chapter shall be observed, public safety and welfare secured and substantial justice done.
Variances.
[Amended 11-13-1995 by L.L. No. 3-1995]
Upon appeal, after due notice and hearing, the Zoning Board of Appeals shall have the power to vary or modify the application of any of the regulations relating to the use, construction, structural changes in, equipment or alteration of buildings or structures or the use of land so that the spirit of this chapter and any local law hereafter adopted or any other code or regulation over which the Board may hereafter be granted original or appellate jurisdiction by the Village Board shall be observed, public safety and welfare secured and substantial justice done in accordance with § 7-712-b of the Village Law.
The Zoning Board of Appeals, in the granting of use and area 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, the health, safety and welfare of the community and the general purpose of this chapter applicable thereto.
Before granting a use variance by the Zoning Board of Appeals, an applicant shall demonstrate that applicable regulations and restrictions of this chapter 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 regulations of this chapter for the particular district where the property is located:
The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence.
The alleged hardship relating to the property in question is unique and does not apply to a substantial portion of the district or neighborhood.
That the requested use variance, if granted, will not alter the essential character of the neighborhood.
That the alleged hardship has not been self-created.
Before granting an area variance, 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:
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.
Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance.
Whether the requested area variance is substantial.
Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.
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.
The Zoning Board of Appeals shall, in the granting of use and area variances, have the authority to impose such reasonable conditions and restrictions as are directly related 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 neighborhood or community.
§ 171-149 Meetings; minutes; decisions.
All meetings of the Board of Appeals shall be held at the call of the Chairman and at such other times as such Board may determine. The Chairman or, in his absence, the Acting Chairman may administer oaths and compel the attendance of witnesses. All meetings of such Board shall be open to the public.
The Board shall keep minutes of its proceedings, showing the vote of each member upon every question or, if absent or failing to vote, indicating such fact. The concurring vote of a majority of the Board shall be necessary for a decision. The Board shall arrive at a decision or determination only after notice and hearing as prescribed by law or by the terms of this chapter.
§ 171-150 Manner of filing appeals and applications to Board.
[Amended 11-13-1995 by L.L. No. 3-1995]
All appeals and applications to the Zoning Board of Appeals shall be taken in the manner prescribed by law. Appeals shall be taken within such time as required in § 7-712-a, Subdivision 5, of the Village Law. All such appeals and applications shall be in writing, on forms (if any) prescribed by the Board, and shall state the relief requested and the grounds upon which the request is based. Reference shall be made to the specific provision or provisions of this chapter which may be applicable, and the applicant shall set forth, as the case may be, the order, requirement, decision or determination to be reviewed, the exact interpretation that is claimed or the details of the variance applied for. In each case, the grounds for the appeal or application must be specified. An appeal shall stay all proceedings as provided by law and as provided in § 7-712-a, Subdivision 6, of the Village Law.
§ 171-151 Public hearings; notice.
[Amended 11-13-1995 by L.L. No. 3-1995]
The Zoning Board of Appeals shall hold a public hearing on every appeal or application within a reasonable time after receipt thereof. The Board shall duly notify the parties and publish a notice of such hearing in the official newspaper of the Village not less than 15 days prior to the hearing. The notice shall state the time and place of the hearing, the address or location of the subject premises, the name of the applicant and a brief description of the nature of the application. In addition, at least 15 days prior to such hearing, the Board of Appeals shall, insofar as practicable, send copies of such notice by first class mail to all property owners within a radius of 200 feet of the subject premises, as such adjacent owners may appear upon the latest completed assessment roll of the Village. Such notices shall be mailed to the street address of the properties within said radius, regardless of whether or not the owner resides there, unless the Board has definite knowledge of other addresses of absentee owners. Any of the foregoing to the contrary notwithstanding, because of practical difficulties in determining lot lines, title to property and the names and addresses of adjacent owners, the mailing of such notices shall not be a condition precedent to proper legal notice of hearing, and no hearing or action taken at such hearing shall be deemed to be invalid or illegal because of failure to mail any such notice or failure of any addressee to receive the same. The cost of sending or publishing any notices relating to such appeal or application or a reasonable fee relating thereto shall be paid by the appealing party or applicant and shall be paid to the Zoning Board of Appeals prior to the hearing of such appeal or application.
§ 171-152 Referral of appeals and applications to governing body and Planning Board.
At least 20 days before the date of each public hearing, the Secretary of the Board of Appeals shall transmit to the Village Board and the Planning Board a copy of said application or appeal, together with a copy of the notice of the aforesaid hearing, and the Planning Board may submit to the Board of Appeals an advisory opinion on said application or appeal.
§ 171-153 Referral of variance applications to county.
[Amended 11-13-1995 by L.L. No. 3-1995]
Applications for variances within a specified distance of certain areas and facilities as described in § 239-m of the General Municipal Law shall be referred to the County Planning Board and action taken only in accordance with said section of the General Municipal Law. The County Planning Board shall have a maximum of 30 days after receipt of a full statement of the proposed variance to report its recommendations and reasons for such recommendations to the Zoning Board of Appeals. Should the County Planning Board recommend modification or disapproval of the variance, the Board of Appeals shall not act contrary to such recommendation except by a vote of a majority plus one of all the members thereof and after the adoption of a resolution fully setting forth the reasons for such contrary action. Within 30 days after final action, the Zoning Board of Appeals shall file a report of its final action with the County Planning Board. If the Zoning Board of Appeals acts contrary to the county's recommendation of modification or disapproval, the report shall set forth the reasons for the contrary action.
§ 171-154 Decisions on applications and appeals.
[Amended 11-13-1995 by L.L. No. 3-1995]
Time limit for decisions; filing of copies. The Zoning Board of Appeals shall decide each application or appeal within 62 days after the close of the hearing thereon. Every rule, regulation, order, requirement, decision, interpretation or determination of the Board shall be filed in the office of the Board and with the Village Clerk within five business days after the day such decision is rendered and a copy thereof mailed to the applicant and shall be a public record. A copy of each decision shall also be filed with the Planning Board and the Code Enforcement Officer.
[Amended 5-24-2010 by L.L. No. 6-2010]
Form of decision, interpretation or determination. All decisions of the Board of Appeals shall be by written resolution and shall set forth the reasons for the granting or denial of the relief sought or for the interpretation or determination made in the form of findings of fact and conclusions. Each decision shall also state in detail the conditions and safeguards, if any, which the Board deems to be required and accordingly imposes.
Rehearing. If it shall appear to the satisfaction of the Board of Appeals that a substantial change in facts, evidence or conditions warrants such action, a motion may be made by any member of the Board and a unanimous vote of all members of the Board then present is required for such rehearing to occur. Upon such rehearing, the Board of Appeals may reverse, modify or annul its original order, decision, interpretation or determination upon the unanimous vote of all members then present, provided the Board finds that the rights vested in persons acting in good faith in reliance upon the reviewed order, decision, interpretation or determination will not be prejudiced thereby. Any rehearing shall be conducted upon the same notice provisions and in the same manner as an original hearing.
§ 171-155 Existing variances.
Any variance granted prior to the effective date of this chapter or of any amendment of this chapter shall be continued only if a certificate of occupancy has been issued or if a building permit for the authorized construction or use has been issued prior to such effective date and if said construction or use may be completed or continued under the provisions of § 171-121 hereof.
§ 171-156 Time limit for establishment of use or completion of construction.
Whenever a variance is granted or a determination is made under this chapter by the Board of Appeals, the use or construction authorized thereby shall be established or completed within a period of two years from the date of resolution of the Board of Appeals. The variance granted or the determination made shall become null and void in the event of failure to establish such use or complete such construction. One extension of such period for an additional period not to exceed one year may be granted by the Board of Appeals after public hearing for good cause shown.[1]
[1]
Editor's Note: Original Sections 448 and 449, which immediately followed this section, were deleted as duplicating §§ 171-75C and D and 171-76.