Hillsdale City Zoning Code
ARTICLE XI
Appeals and Variances
§ 245-77 General.
In addition to granting special permits pursuant to Article VI, the Zoning Board of Appeals shall perform all the duties and powers prescribed by the Laws of New York State and by this chapter in connection with appeals to review any order, requirement, decision, interpretation, or determination made by an administrative official charged with the enforcement of this chapter, generally the Zoning Officer or Building Inspector. An appeal may be taken by any person aggrieved or by any officer, department, board, or bureau of the Town.
§ 245-78 Appeals of orders, requirements, decisions, interpretations, or determinations.
The Zoning Board of Appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, interpretation, or determination appealed from, and shall make such order, requirement, decision, interpretation, or determination as in its opinion ought to have been made in the matter by the administrative official charged with the enforcement of this chapter. In so doing, the Zoning Board of Appeals shall have all the powers of the administrative official from whose order, requirement, decision, interpretation or determination the appeal is taken.
§ 245-79 Appeals for variance.
A.
Where there are practical difficulties or unnecessary hardships imposed by the strict letter of this chapter, the Zoning Board of Appeals shall have the power, upon appeal from a determination by the Zoning Officer and after public notice and hearing, to vary or modify the application of any of the provisions of this chapter relating to the use, construction, or alteration of structures or the use of land, so that the spirit of this chapter is observed, public safety and welfare secured, and substantial justice done.
B.
All applications for variances shall be accompanied by three copies of a plot plan, drawn to scale with accurate dimensions, showing the location of all existing and proposed structures on the lot. An application for a use variance may require submission of an agricultural data statement pursuant to § 245-45C. The Zoning Board of Appeals may, if circumstances require, also request submission of a site plan that satisfies some or all of the requirements of 245-37B.
C.
Any variance which is not exercised within one year of the date of issuance shall automatically lapse without further hearing by the Zoning Board of Appeals.
D.
Use variances.
(1)
The Zoning Board of Appeals, on appeal from a decision or determination of the Zoning Officer, shall have the power to grant use variances, authorizing a use of the land which otherwise would not be allowed by this chapter.
(2)
No use variance shall be granted without a showing by the applicant that applicable zoning regulations and restrictions, as applied to him, have caused unnecessary hardship. In order to prove unnecessary hardship, the applicant shall demonstrate that:
(a)
Under applicable provisions of this chapter, the applicant is deprived of all economic use or benefit from the property in question, which deprivation must be established by competent financial evidence;
(b)
The alleged hardship relating to the property in question is unique and does not apply to a substantial portion of the district or neighborhood;
(c)
The requested use variance, if granted, will not alter the essential character of the neighborhood; and
(d)
The alleged hardship has not been self-created.
(3)
The Zoning Board of Appeals, in granting use variances, shall grant the minimum variance that it deems 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.
E.
Area variances.
(1)
The Zoning Board of Appeals shall have the power, upon an appeal from a decision or determination of the Zoning Officer, to grant area variances from the area or dimensional requirements contained in Article IV.
(2)
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 of such grant. In making such determination, the Board shall also consider whether:
(a)
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;
(b)
The benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;
(c)
The requested area variance is substantial;
(d)
The proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and whether
(e)
The alleged difficulty was self-created, which shall be relevant to the decision of the Board, but which shall not necessarily preclude the granting of the area variance.
(3)
The Board, in the granting of area variances, shall grant the minimum variance that it deems necessary and adequate, while preserving and protecting the character of the neighborhood and the health, safety, and welfare of the community.
F.
Imposition of conditions. The Board shall, in granting use variances and area variances, 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 the variance may have on the neighborhood or community.
§ 245-80 Appeal procedures.
A.
Application. Appeals shall be taken by filing a written notice of appeal and any required plans with the Zoning Officer and the Zoning Board of Appeals, within 60 days after the filing of the order, requirement, decision, interpretation, or determination of that is being appealed, on forms prescribed by the Zoning Board of Appeals. Such application shall refer to the specific provision of this chapter involved and shall specify the grounds for the variance requested, the interpretation claimed, or for the reversal of an order, requirement, decision, or determination of an administrative official. The Zoning Officer shall forthwith transmit all the papers constituting the record of the appeal to the Zoning Board of Appeals.
B.
Referral to County Planning Board.
(1)
Requests for variances affecting real property within 500 feet of the boundary of the Town of Hillsdale, or the boundary of any existing or proposed county or state park or other recreational area, or the boundary of any existing or proposed county or state roadway, or the boundary of any existing or proposed right-of-way for a stream or drainage channel owned by the county for which the county has established channel lines, or the boundary of any existing or proposed county- or state-owned land on which a public building or institution is situated shall be referred to the Columbia County Planning Board pursuant to General Municipal Law, Article 12-B, §§ 239-l and 239-m, as amended.
(2)
No action shall be taken on variances referred to the County Planning Board until its recommendation has been received or 30 days have elapsed after its receipt of the full statement of the proposed variance unless the county and Town agree to an extension beyond the thirty-day requirement for the County Planning Board's review.
(3)
County disapproval. A majority-plus-one vote shall be required to approve any variance which receives a recommendation of disapproval from the County Planning Board because of the referral process specified above, along with a resolution setting forth the reasons for such contrary action.
C.
Referrals to the Town Planning Board. The Zoning Board of Appeals may, at its discretion, refer an appeal to the Town Planning Board for an advisory opinion. If the Zoning Board of Appeals requests such an advisory opinion, the appeal shall be transmitted to the Planning Board at least 30 days prior to the public hearing. The Planning Board shall submit to the Zoning Board of Appeals its advisory opinion prior to the public hearing. The failure of the Planning Board to submit such opinion shall be interpreted as a favorable opinion for the appeal. This § 245-80C shall in no way obligate the Zoning Board of Appeals to obtain the opinion of the Planning Board on any appeal. It shall only offer the option of obtaining such an opinion.
D.
Hearing and public notice. The Zoning Board of Appeals shall set a reasonable time (within 45 days after receipt of a complete application) for the hearing of appeals. At least five days prior to the date of such hearing, the appellant shall give public notice by causing the publication of a notice of such hearing in the official newspaper and by mailing a notice thereof to the Planning Board, to any other property owners in the affected area that the Zoning Board of Appeals may require to be notified, and to the regional park commission having jurisdiction over any state park within 500 feet of the property affected. At the hearing, any party may appear in person or by agent or by attorney. The Zoning Board of Appeals may adjourn the hearing for a reasonable period in order to cause such further notice as it deems proper to be served upon such other property owners as it decides may be interested in said appeal.
E.
Action. The Zoning Board of Appeals may, in conformity with the provisions of this chapter, reverse, affirm, or modify, wholly or in part, the order, requirement, decision, or determination of the Zoning Officer in accordance with the provisions of this chapter.
F.
Filing. Every order, requirement, decision, or determination of the Zoning Board of Appeals shall be filed in the office of the Town Clerk within five business days after the day such decision is rendered, and shall be a public record, and a copy thereof shall be mailed to the applicant.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
G.
Rehearing and review of prior decisions. Upon motion initiated by any member and adopted by the unanimous vote of the members present, but not less than a majority of all the members, the Zoning Board of Appeals shall review, at a rehearing held upon notice given as upon an original hearing, any order, decision, or determination of the Zoning Board of Appeals not previously reviewed. Upon such rehearing, 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 prejudiced thereby, the Zoning Board of Appeals may, upon the concurring vote of all the members then present, reverse, modify, or annul its original order, decision, or determination.
H.
Court review of board decisions. Any person or persons, jointly or severally aggrieved by any decision of the Zoning Board of Appeals may apply to the Supreme Court for review by a proceeding under Article Seventy-eight of the Civil Practice Law and Rules and § 267-c of the Town Law.
I.
Expiration of appeal decision. Unless otherwise specified by the Zoning Board of Appeals, a decision on any appeal shall expire if the applicant fails to obtain any necessary building permit within six months of the date of such decision.
J.
Stay of proceedings. An appeal shall stay all proceedings in furtherance of the action appealed from unless the Zoning Officer certifies for the Zoning Board of Appeals, after the notice of appeal has been filed, that such a stay of proceedings would, in his opinion, cause imminent peril to life or property by reason of facts stated in the certificate. In such a case, proceedings shall not be stayed except by a restraining order granted by the Zoning Board of Appeals or by the Supreme Court on application, on notice to the Zoning Officer for due cause shown.