Kinderhook City Zoning Code
ARTICLE VIII
Zoning Board of Appeals
§ 250-52 Establishment; terms; organization; meetings.
Pursuant to the Town Law, the Town Board shall appoint a Zoning Board of Appeals consisting of five members, shall designate its Chairman and also provide for such expenses as may be necessary and proper. A member of the Board of Appeals shall not at the same time be a member of the Town Board. The Town Board shall have the power to remove any member of the Board of Appeals for cause and after public hearing.
A.
Term of appointment.
(1)
Of the members of the Board of Appeals first appointed, one shall hold office for the term of one year, one for the term of two years, one for the term of three years, one for the term of four years and one for the term of five years from and after his appointment.
(2)
Their successors shall be appointed for the term of five years from and after the expiration of the terms of their predecessors in office. If a vacancy shall occur otherwise than by expiration of term, it shall be filled by the Town Board by appointment for the unexpired term.
(3)
No member of the Board of Appeals who has completed a full five-year term shall be eligible for reappointment to the Board of Appeals for a period of one year.
[Added 7-12-2004 by L.L. No. 10-2004]
B.
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 appropriations made by the Town Board and then available for that purpose.
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 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, nor have the effect of waiving, any provisions of this chapter or any other sections of the Town Code. Such rules, bylaws and forms and any subsequent amendments or 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.
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 concurring vote of a majority of all members of the Board of Appeals shall be necessary to reverse any order, requirement, decision or determination of the Building Inspector or to decide in favor of an applicant in any matter upon which said Board is required to pass under any section, or to effect any variation in the section, of this chapter. The Board of Appeals shall decide an appeal or any other matter referred to it within 60 days after the final hearing.
E.
The Board of Appeals shall keep minutes of its proceedings, showing the vote of each member on every question. If a member is absent or fails to vote, the minutes shall indicate such fact. Every rule, regulation, every amendment or repeal thereof and every order, requirement, decision or determination of the Board of Appeals shall immediately be filed in the office of the Town Clerk and shall be a public record.
F.
Referrals to the Planning Board. At least 45 days before the date of hearing held in connection with any appeal or application submitted to the Board of Appeals, said Board shall transmit to the Planning Board a copy of said appeal or application and shall request that the Planning Board submit to the Board of Appeals its advisory opinion on said appeal or application. The Planning Board shall submit a report of such advisory opinion prior to the date of said public hearing. The failure of the Planning Board to submit such report shall be interpreted as a favorable opinion for the appeal or application.
G.
The Town Board shall appoint alternate members of the Zoning Board of Appeals to serve as provided in this section. The number of alternate members appointed pursuant to this section shall not exceed three. The Town Board shall appoint alternate members who shall hold membership for a term of two years. The Chairperson of the Zoning Board of Appeals shall randomly assign the available alternate members to substitute for regular members who are absent or who are unable to participate for reasons of conflict of interest. Alternate members must attend all regular and special meetings of the Zoning Board of Appeals, unless excused by the Board. An alternate member assigned to sit and participate as a member of the Zoning Board of Appeals as provided herein shall possess all of the powers and responsibilities of a regular member of the Planning Board. Any determination by the Planning Board consisting of alternate members shall have the same force and effect at law as a determination made by the Zoning Board of Appeals consisting of only regular members. Alternate members appointed pursuant to this section shall be entitled to receive such expenses as fixed by resolution of the Town Board. (This subsection amends § 271, Subdivision 15, of the New York State Town Law.)
§ 250-53 Public notice of hearings.
Public notice of any required hearing by the Board of Appeals shall be given in accordance with the Town Law as follows:
A.
By publishing a notice of any appeal or application and the time and place of the public hearing in the official newspaper of the Town not less than 10 days prior to the date of such hearing.
B.
By giving written notice of the hearing to any appellant or applicant and any other such notice to property owners in an affected area as may be required by the Board of Appeals and to the Planning Board not less than five days prior to such hearing.
C.
By giving written notice of the hearing to any required municipal, county, metropolitan, regional, state or federal agency in the manner prescribed by law.
§ 250-54 Appeals.
The Board of Appeals shall hear and decide appeals from and review any order, requirement, decision or determination made by the Building Inspector under this chapter in accordance with the procedure set forth herewith:
A.
Notice of appeal shall be filed with the Building Inspector and the Secretary to the Board of Appeals in writing, in a form required by such Board, within 60 days of the date of the action appealed from, specifying the grounds thereof.
B.
Upon the filing of a notice of appeal and payment of a filing fee of $50 by the appellant or applicant, the Building Inspector shall forthwith transmit to the Board of Appeals all the papers constituting the record upon which the action appealed from was taken.
C.
The Board of Appeals shall set a reasonable date for the hearing of each appeal, of which hearing date the appellant shall be given notice and at which hearing he shall appear in person or by agent or by attorney.
D.
An appeal stays all proceedings in furtherance of the action appealed from, unless the Building Inspector certifies to the Board of Appeals, after notice of appeal shall have been filed with him, that, by reason of facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order, which may be granted by the Board of Appeals or by a court of record on application, on notice to the Building Inspector and on due cause shown.
E.
Following public notice and hearing, 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 the power of the Building Inspector. If the action by the Board of Appeals is to reverse the action of the Building Inspector in whole, the filing fee shall be refunded to the appellant. The Board of Appeals shall decide the same within 60 days following the final hearing.
§ 250-55 Variances.
A.
Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this chapter, the Board of Appeals shall have the power, after public notice and hearing, 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, so that the spirit of this chapter shall be observed, public safety and welfare secured and substantial justice done.
B.
All applications for variances shall be filed with the Secretary to the Board of Appeals, in writing, shall be made in a form required by the Board of Appeals and shall be accompanied by payment of a filing fee consistent with the fee schedule and a plot plan, drawn to scale and accurately dimensioned, showing the location of all existing and proposed buildings and structures on the lot.
C.
Any variance which is not exercised within one year from the date of issuance is hereby declared to be revoked without further hearing by the Board of Appeals.
D.
Criteria for granting variances.
(1)
Use variance. The Board of Appeals, on appeal from the decision or determination of the Building Inspector, shall have the power to grant use variances according to the following criteria:
(a)
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, 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.
(b)
The Board of Appeals, in the granting of use variances, shall grant the minimum variance that it shall deem necessary 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. The Zoning Board of Appeals shall have the power, upon an appeal of a decision or determination of the Building Inspector, to grant area variances in accordance with the following criteria:
(a)
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 a 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.
(3)
A variance from the provisions of this chapter shall be granted by the Board of Appeals in order to vary or adapt the strict application of any of the requirements of this chapter in the case of exceptionally irregular, narrow, shallow or steep lots or other exceptional physical conditions, whereby such strict application would result in practical difficulty or unnecessary hardship that would deprive the owner of the reasonable use of the land or building involved, but in no other case. No variance from the strict application of this chapter shall be granted by the Board of Appeals except by the adoption of a resolution fully setting forth the reasons for the following findings:
(a)
That there are special circumstances or conditions applying to such land or buildings and not applying generally to land or buildings in the vicinity and under identical district classification, and that said circumstances or conditions are such that strict application of the provisions of this chapter would deprive the applicant of the reasonable use of such land or buildings or privileges enjoyed by other properties in the vicinity and under identical district classification.
(b)
That the granting of the variance is necessary for the reasonable use of the land or building and that the variance as granted by the Board of Appeals is the minimum variance that will accomplish this purpose.
(c)
That the granting of the variance will be in harmony with the general purpose and intent of this chapter and will not be injurious to the vicinity or otherwise detrimental to the public welfare.
(d)
That any variance granted shall be subject to such conditions as will assure that the adjustment thereby authorized shall not constitute a grant of special privilege inconsistent with the limitations upon other properties in the vicinity and district in which subject property is situated.
(4)
In no case shall a variance be granted solely for the reason of additional financial gain on the part of the owner of the land or building involved.
§ 250-56 Relief from decisions.
Any person or persons jointly or severally aggrieved by a decision of the Board of Appeals may apply to the Supreme Court for relief by a proceeding under Article 78 of the Civil Practice Law and Rules of the State of New York. Such proceeding shall be governed by the provisions of Article 78 of the Civil Practice Law and Rules, except that it must be instituted as therein provided within 30 days after the filing of a decision in the office of the Town Clerk; that the Court may take evidence or appoint a referee to take such evidence as it may direct and report the same with his findings of fact and conclusions of law, if it shall appear that testimony is necessary for the proper disposition of the matter; and that the Court at special term shall itself dispose of the cause on the merits, determining all questions of § 7803 of said Article. Costs shall not be allowed against the Board of Appeals unless it shall appear to the Court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from.