Halfmoon City Zoning Code
ARTICLE XIV
Board of Appeals
§ 165-77 Creation, appointment and organization.
A.
The Town Board shall appoint a Board of Appeals pursuant to § 267 of the Town Law. Said Board shall consist of five members, to serve for overlapping five-year terms. The Chairman of the Board shall be one of the five members and shall be designated as such by the Town Board. Vacancies shall be filled in like manner; provided, however, an unexpired term shall be filled for such unexpired term only. The Board shall elect a Vice Chairman from its membership, shall appoint a Secretary and shall establish rules for the conduct of its officers.
B.
The Board of Appeals shall have the duties, rights, powers and functions conferred upon it by § 267 of Article 16 of the Town Law and any other provisions of law applicable thereto, including the following.
§ 165-78 Procedure.
A.
The Board of Appeals shall act in strict accordance with the procedure specified by law. All appeals and applications made to the Board shall be in writing, on forms prescribed by the Board. Every appeal or application shall refer to the specific provision of the law involved, and shall exactly set forth the interpretation that is claimed, the use for which the special permit is sought, or the details of the variance that is applied for and the grounds on which it is claimed that the variance should be granted, as the case may be.
B.
Every decision of the Board of Appeals shall be by resolution, each of which shall contain a full record of the findings of the Board in the particular case. Each resolution, together with all documents pertaining thereto, shall be filed in the office of the Town Clerk, by case number under one of the following headings: "Interpretations," "Special Permit" or "Variance." The Board of Appeals shall notify the Town Board, Enforcement Officer, and the Town Planning Board of each special permit and each variance granted under the provisions of this chapter.
§ 165-79 Powers and duties.
[Amended 3-4-2015 by L.L. No. 3-2015]
The Board of Appeals shall exercise all the powers and duties in the manner now and hereafter prescribed by law, including the following:
A.
Interpretation: On appeal from a determination of the Enforcement Officer or Zoning Enforcement Officer, or on referral or upon request from the Town Planning Board or Town Board, may hear and decide questions involving the interpretation of any provision of this chapter.
B.
Variances. On appeal from a determination of the Planning Board or the Zoning Enforcement Officer, may hear and decide variances as detailed below:
(1)
Use variances:
(a)
The Board of Appeals, on appeal from the decision or determination of the Enforcement Officer or Zoning Enforcement Officer, shall have the power to grant use variances, as defined herein.
(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 the following to the Board of Appeals:
[1]
That for each and every permitted use under the zoning regulations 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.
[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 Enforcement Officer or Zoning Enforcement Officer, 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.
(3)
Imposition of conditions: The Board of Appeals shall, in the granting of both use variances and 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 neighborhood or community.
§ 165-80 Hearing and determination.
[Amended 6-17-2008 by L.L. No. 2-2008]
The Board of Appeals shall fix a reasonable time for the public hearing of the appeal or other matters referred to it and give public notice thereof by the publication in the official paper of a notice of such hearing, at least five days prior to the date thereof, and shall, at least five days before such hearing, mail notices thereof to the parties and to the regional state park commission having jurisdiction over any state park or parkway within 500 feet of the property affected by such appeal. The Board shall decide the appeal or other matter referred to it within 62 days after the final hearing. The ZBA shall notify, personally or by certified or registered mail at least 10 days prior to such hearing, all owners of property who abut, are adjacent to or are situated across an established road from the proposed boundary lines of the property which is the subject of the hearing and shall also notify such other persons as the ZBA may determine. Upon the hearing, any party may appear in person or by agent or by attorney. The Board of Appeals may reverse or affirm, wholly or partly, or may modify the 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 the premises and, to that end, shall have all powers of the officer from which the appeal is taken.