Marbletown City Zoning Code
ARTICLE IX
Zoning Board of Appeals
§ 200-71 Establishment and duties.
[Amended 12-13-1989; 11-16-2004 by L.L. No. 4-2004; 12-15-2015 by L.L. No. 3-2015]
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. 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, one for the term of five years from and after his appointment. Their successors shall be appointed for terms 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.
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 or procedures, 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 local laws or ordinances of the Town of Marbletown. 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.
Meetings. 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 Code Enforcement Officer or to decide in favor of an applicant in any matter upon which the Board is required to pass under any ordinance or local law to effect any variation in this chapter. The Board of Appeals shall decide an appeal or any other matter referred to it within 62 days after close of the public hearing.
E.
Official minutes. 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 be filed in the office of the Town Clerk within five business days and shall be a public record.
F.
Referrals to the Planning Board. The Board of Appeals shall submit a copy of its agenda to the Planning Board prior to the Planning Board's regular meeting. The Planning Board may request a copy of any appeal or application before the Board of Appeals and submit its advisory opinion prior to the Board of Appeals public hearing on the matter. The Board of Appeals may request an advisory opinion from the Planning Board regarding any appeal or application before it. The Planning Board shall submit a report of such advisory opinion prior to the date of said public hearings. The failure of the Planning Board to submit such report shall be interpreted as a favorable opinion for the appeal or application.
G.
Alternate members.
(1)
Pursuant to Municipal Home Rule Law § 10(1)(ii)(a), the provisions of Subdivision 11 of § 267 of the Town Law are hereby superseded to provide that the Town of Marbletown is authorized to establish alternate Zoning Board of Appeals member positions for the purpose of substituting for a member in the event such member is unable to participate because of a conflict of interest, or because of illness or absence for any reason. The alternate members of the Zoning Board of Appeals shall be appointed by resolution of the Town Board for terms of one year.
(2)
The Chairperson of the Zoning Board of Appeals may designate an alternate member to substitute for a member when such member is unable to participate because of a conflict of interest on an application or matter before the Board, or for absence or illness of a member. When so designated, the alternate member shall possess all of the powers and responsibilities of such member of the Board. Such designation shall be entered into the minutes of the Zoning Board of Appeals meeting at which the substitution is made.
§ 200-72 Public notice and hearing.
Public notice of any required hearing by Board of Appeals shall be given in accordance with 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 of Marbletown, not less than five days prior to the date of such hearing.
[Amended 12-15-2015 by L.L. No. 3-2015]
B.
By giving written notice of 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 hearing to any required municipal, county, metropolitan, regional, state, or federal agency in the manner prescribed by law.
§ 200-73 Appeals.
The Board of Appeals shall hear and decide appeals from and review any order requirement, decision, or determination made by the Code Enforcement Officer under this chapter in accordance with the procedure set forth herewith:
A.
A notice of appeal shall be filed with the Code Enforcement Officer and the Secretary to the Board of Appeals in writing, in a form required by such Board, within 30 days of the date of the action appealed from, specifying the grounds thereof.
B.
Upon filing of a notice of appeal and payment of a filing fee by the appellant or applicant the Code Enforcement Officer 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 Code Enforcement Officer certifies to the Board of Appeals, after a 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 Code Enforcement Officer 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 Code Enforcement Officer. If the action by the Board of Appeals is to reverse the action of the Code Enforcement Officer in whole, the filing fee shall be refunded to the appellant. The Board of Appeals shall decide the same within 62 days following close of the public hearing.
[Amended 12-15-2015 by L.L. No. 3-2015]
§ 200-74 Variances.
[Amended 3-21-2006 by L.L. No. 1-2006]
A.
The Board, upon an appeal from a decision or determination of the Code Enforcement Officer, may grant or deny requests for variances of two types: area variance and use variance as defined in this chapter.
B.
The Board shall follow the following procedures in its review of variance requests:
(1)
Area variances.
(a)
In making its determination regarding a request for an area variance, the Board 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.
[5]
Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the Board but shall not necessarily preclude the granting of the area variance.
(b)
The Board, when granting an area variance, shall grant the minimum variance that it shall deem necessary and adequate to alleviate the difficulty shown by the applicant and that also will preserve and protect the character of the neighborhood and the health, safety and welfare of the community.
(2)
Use variances.
[Amended 8-20-2013 by L.L. No. 4-2013]
(a)
If a use variance is granted, the applicant shall obtain site plan review approval from the Planning Board prior to commencing the use and prior to obtaining a building permit.
(b)
No use variance shall be granted unless, in addition to satisfying all other applicable provisions of law and this chapter, the Board of Appeals finds that otherwise applicable zoning regulations and restrictions have caused unnecessary hardship.
[1]
Unnecessary hardship. In order to prove such unnecessary hardship the applicant is required to clearly demonstrate to the Board of Appeals that, with respect to every permitted use under the zoning regulations for the particular district where the property is located, each and every of the following four criteria is satisfied:
[a]
The applicant cannot realize a reasonable return on the entire parcel of property, and such lack of return is substantial as demonstrated by competent financial evidence;
[b]
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 involved;
[c]
That the requested use variance, if granted, will not alter the essential character of the neighborhood; and
[d]
That the alleged hardship has not been self-created.
(c)
The Board of Appeals, in the granting of use variances, shall grant only the minimum variance that it shall deem necessary and adequate to allow an economically beneficial use of the property, and at the same time preserve and protect the essential character of the neighborhood and the health, safety and welfare of the community.
(d)
The Board of Appeals, in the granting of use variances, shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed project. 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 use variance may have on the neighborhood or community. Such conditions may include, but are not limited to, landscaping, lighting, access and egress, signs, screening, architectural features, location and layout of buildings, limitations upon the use or characteristics of the use which are reasonably related to the public health, safety and general welfare and as may be necessary to carry out the intent of this chapter. If the applicant refuses to accept such requirements and conditions, the use variance shall be denied.
C.
Board action on a variance request.
(1)
The Board may reverse or affirm (wholly or in part) 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 Code Enforcement Officer. To this end, the Board shall have all the powers of the Code Enforcement Officer.
(2)
The Board shall, in the granting of both area and use 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 the community.
(3)
In rendering its decision on an application for an area or use variance, the Board shall state the relevant considerations and any conditions to be imposed.
§ 200-75 Special use permits.
A.
The Zoning Board of Appeals shall have the authority to issue special use permits pursuant to the provisions of Town Law § 274-b and with regard to said authority is empowered to waive requirements subject to the criteria set forth in Paragraph 5 of said § 274-b. In the event of any conflict between the provisions of Town Law § 274-b and the provisions of this Article IX, the provisions of § 274-b shall control.
[Amended 2-8-1995 by L.L. No. 1-1995]
B.
All applications for special use permits shall be filed with the Secretary to the Board of Appeals in writing, shall be made in a form required by the Board, and shall be accompanied by payment of a filing fee and a plot plan, drawn to scale and accurately dimensioned, as required by § 200-46.
C.
Whenever the Board of Appeals grants a special use permit, appropriate conditions and safeguards and/or time limitations may be attached thereto. In addition, the Board of Appeals shall utilize the objectives of site plan review set forth in § 200-68B and the guidelines set forth in § 200-50 and Appendix A, Design Standards and Guidelines for Business Districts[1] as a basis for its review and determination in addition to those criteria set forth in § 200-46.
[Amended 2-24-1998 by L.L. No. 1-1998; 5-25-1999 by L.L. No. 1-1999]
[1]
Editor's Note: Appendix A is included at the end of this chapter.
D.
Any special use permit 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.
§ 200-76 Relief from decisions.
Any person or persons, jointly or severally aggrieved by any 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 proceedings shall be governed by the provisions of Article 78 of the Civil Practice Law and Rules, except that (a) it must be instituted as therein provided within 30 days after the filing of a decision in the office of the Town Clerk, (b) 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 (c) the Court at special term shall itself dispose of the cause on the merits, determining all questions which may be presented for determination under the provisions of § 1296 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.
§ 200-77 Fees, escrows and reimbursable costs.
[Added 11-3-2004 by L.L. No. 3-2004]
A.
An application for a special permit or variance shall be accompanied by a fee as established by the Town Board and amended from time to time.
B.
The applicant shall be responsible for the Town's special consulting costs for engineers, planning consultants, and attorneys retained by the Town, as required by the Zoning Board of Appeals, to process the application. Payment of the costs is to be accomplished by the Zoning Board of Appeals setting up, and the applicant paying into, an escrow account with the Supervisor, and the Town paying the consultants. The escrow amount shall be set by the Zoning Board of Appeals, after solicitation of estimates from the consultants, engineers and attorneys for the Town. No final approval shall be granted until such costs are paid in full.