Kingston Town City Zoning Code
ARTICLE X
Zoning Board of Appeals
§ 425-66 Creation; appointment; organization.
A Zoning Board of Appeals is hereby created in accordance with § 267, Article 16, of the Town Law. Said Board shall consist of three members appointed by the Town Board. The Town Board, by resolution, shall fix the members terms so that one member's term shall expire at the end of each year for three calendar years. At the expiration of each original member's appointment, the replacement member shall be appointed for a term of three years. The Town Board shall annually designate the Chairman of the Board of Appeals, while the Board of Appeals shall annually designate its Secretary and may prescribe reasonable rules in addition to those provided herein for the conduct of its affairs. All members are subject to removal by the Town Board for cause after public hearing.
§ 425-67 Training. [1]
§ 425-68 Powers and duties.
The Board of Appeals shall have all the powers and duties prescribed by law and by this chapter which are more particularly specified as follows:
A.
Purpose. The purpose of this article is to allow for a process to hear and decide on questions where it is alleged there is an error in any order, requirement, decision or determination made by the Code Enforcement Officer involving the interpretation of any provision of this chapter or on request by an administrative official, board or agency of the Town, to decide any of the following questions:
B.
Variances. To authorize, upon appeal from a decision of the Code Enforcement Officer charged with the enforcement of the Zoning Ordinance, variances from the terms of this chapter.
(1)
Use variances.
(a)
Except as otherwise provided herein, when the literal application of this chapter pertaining to the use of land will result in unnecessary hardship, the Zoning Board of Appeals shall have the power to vary the use requirements of this chapter.
(b)
No 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.
(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)
Except as otherwise provided herein, where there are practical difficulties in carrying out the strict letter of the area requirements of this chapter, the Zoning Board of Appeals shall have the power to vary or modify yard requirements, setbacks, lot coverage, frontage requirements, height requirements and density regulations.
(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 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, and/or the period of time such variance shall be in effect. Such conditions shall be consistent with the spirit and intent of the Zoning Ordinance, and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.
§ 425-69 Procedures. [1]
The Zoning Board of Appeals shall act in strict accordance with the procedure specified by § 267-a of the Town Law and this chapter.
A.
Meetings. Meetings shall be held at the call of the Chairperson or at such other times as the Board of Appeals may determine. A quorum shall consist of two members, and in order to issue an interpretation, reverse a decision of the Code Enforcement Officer or authorize a variance, an affirmative vote of at least two members shall be required. A favorable vote of a majority, plus one (i.e., all three members) shall also be required if the action taken is contrary to an advisory recommendation received from the Ulster County Planning Board, under the provisions of § 239-m of the General Municipal Law. The Board shall keep minutes of its proceedings showing the vote of each member upon each question and shall keep records of its examinations and other official actions. All meetings of the Board of Appeals shall be open to the public.
B.
Application and fee. All appeals and requests made to the Board shall be in writing, on forms prescribed by the Board. All appeals shall be filed within 60 days of the action appealed from and shall be accompanied by the applicable fee in accordance with the fee schedule established and annually reviewed by the Town Board. Every appeal or request shall refer to the specific provision of this chapter that is involved and shall precisely set forth either the interpretation that is claimed or the details of the variance that is applied for and the grounds on which it is claimed that such variance should be granted.
C.
Public notice and hearing. The Board shall fix a reasonable time and place for a public hearing on any such appeal or request of which hearing date the appellant shall be given notice and at which hearing he shall appear in person or by agent. Additionally, notice shall be provided as follows:
(1)
By publishing at least five calendar days prior to the date thereof a legal notice in the official newspaper of the Town.
(2)
By requiring the applicant to provide notice of the public hearing and data regarding the substance of the appeal to the owners of all property abutting that held by the applicant and all other owners within 300 feet, or such additional distances that the Board of Appeals may deem advisable, of the land involved in such appeal. Notice shall be provided by certified mail at least 10 calendar days prior to the hearing, with compliance with this notification procedure certified to by a U.S. Postal Service receipt. The names of owners notified shall be taken as such appear on the last completed tax roll of the Town.
(3)
By requiring the Secretary of the Board of Appeals to transmit to the Secretary of the Planning Board a copy of any appeal for a variance, together with a copy of the notice of such hearing at least 30 calendar days prior to the date thereof. The Board of Appeals shall request that the Planning Board submit to the Board of Appeals an advisory opinion prior to the date of such hearing. Upon failure of the Planning Board to submit such report, said Board shall be deemed to have recommended approval of the application of appeal.
(4)
If the land involved in the appeal lies within 500 feet of the boundary of any other municipality, the Secretary of the Board of Appeals shall also submit, at least 10 calendar days prior to the public hearing, to the Municipal Clerk of such other municipality or municipalities, a copy of the notice of the substance of every appeal, together with a copy of the official notice of such public hearing.
D.
Required referral. A full statement of any appeal that meets the referral requirements of § 239-m of the General Municipal Law shall also be referred not less than five days prior to the public hearing to the Ulster County Planning Board. No action shall be taken by the Board of Appeals on such appeal until an advisory recommendation has been received from said Board or 30 calendar days have elapsed since the Board received such full statement.
E.
Decisions. Every decision of the Board of Appeals on an appeal or request shall be made within 62 days of the close of the hearing by the Board, shall be recorded in accordance with standard forms adopted by the Board, shall fully set forth the circumstances of the case and shall contain a full record of the findings on which the decision is based. Every decision shall be by resolution of the Board, with each such decision being filed in the Office of the Town Clerk within five business days thereof, and a copy thereof mailed to the applicant. The Board shall also notify the Code Enforcement Officer, the Secretary of the Planning Board and any affected municipality given notice of hearing of its decision in each case. If applicable, a report on the action taken shall also be filed within seven calendar days of said action with the Ulster County Planning Board.
F.
Attachment of conditions. In all cases where the Board of Appeals grants a variance from the strict application of the requirements of this chapter, it shall be the duty of such Board to attach such conditions and safeguards as may be required in order that the result of its action shall be as nearly as possible in accordance with the spirit and intent of this chapter.
G.
Effect of appeal. Unless the Code Enforcement Officer finds there to be an imminent peril to either life or property, an appeal stays all proceedings in furtherance by either the Town or appellant related to the action which is the subject of the appeal.
H.
Expiration of approval. Unless construction or use is commenced and diligently pursued within one calendar year from the date of the granting of a variance, such variance shall become null and void without further hearing by the Board of Appeals.
I.
Strict construction. All the provisions of this chapter relating to the Board of Appeals shall be strictly construed. The Board of Appeals, as a body of limited jurisdiction, shall act in full conformity with all provisions of law and of this chapter and in strict compliance with all limitations contained therein; provided, however, that if the procedural requirements set forth in this chapter have been substantially observed, no applicant or appellant shall be deprived of the right of application or appeal.
§ 425-70 Compliance with State Environmental Quality Review Act.
The Zoning Board of Appeals shall comply with the provisions of the State Environmental Quality Review Act (SEQRA).
§ 425-71 Appeals.
Any person or persons, jointly or severally aggrieved by any decision of the Board of Appeals, may apply to the Supreme Court of the State of New York for relief through 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 specific provisions of Article 78, except that the action must be initiated as therein provided within 30 days after the filing of the Board's decision in the office of the Town Clerk.