Milton City Zoning Code
ARTICLE XIII
Zoning Board of Appeals
§ 180-74 Powers and duties.
A.
Appeals. The Board of Appeals shall perform the duties and powers prescribed by the laws of New York State and by this chapter in connection with requests for variances from this chapter and appeals to review any order, requirement, decision, interpretation or determination made by officials charged with the enforcement of this chapter. Unless otherwise provided by this chapter, the jurisdiction of the Board of Appeals shall be appellate only and shall be limited to hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation or determination made by the administrative officials charged with the enforcement of this chapter.
B.
Administrative review. The concurring vote of a majority of the members of the Board of Appeals shall be necessary to reverse any order, requirement, decision, interpretation or determination of any such administrative official or to grant a use variance or area variance. Such appeal may be taken by any person aggrieved or by an officer, department, board or bureau of the Town. The Board of Appeals may reverse or affirm, wholly or in part, or may modify any order, requirement, decision, interpretation or determination made by officials charged with the enforcement of this chapter. In so doing, the Board of Appeals shall have all of the powers of such officials in granting relief in the form of reversal, modification, affirmation, interpretation or determination.
C.
Variances.
(1)
The Board of Appeals shall have the power to vary or modify the application of this chapter. Upon appeal for a variance and after public notice and hearing, the Board of Appeals may grant such variances relating to the use, area, construction or alteration of structures or use of land so that the spirit of this chapter is observed, public safety and welfare secured and substantial justice done.
(a)
Use variances.
[1]
Use variances shall not be granted by a 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:
[a]
The applicant cannot realize a reasonable return, provided that 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.
[c]
That the requested use variance, if granted, will not alter the essential character of the neighborhood.
[d]
That the alleged hardship has not been self-created.
[2]
The Board of Appeals, in the granting of use variances, shall grant the minimum variance that it deems necessary and adequate to address the unnecessary hardship proved 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.
(b)
Area variances.
[1]
In its consideration of area variances, the Board of Appeals shall take into account 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 of Appeals shall also consider:
[a]
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.
[b]
Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance.
[c]
Whether the requested area variance is substantial.
[d]
Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.
[e]
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.
[2]
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.
(2)
Imposition of conditions. The Board of Appeals shall, in the granting of use variances and/or 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 Town of Milton.
§ 180-75 Creation, appointment and organization.
A.
The Town Board, pursuant to the powers granted by this chapter, shall appoint a Board of Appeals consisting of five members and shall designate the Chairperson thereof. In the absence of a Chairperson, the Board of Appeals may designate a member to serve as Acting Chairperson. All meetings of the Board of Appeals shall be held at the call of the Chairperson and at such other times as such board may determine. Such chairperson, or in his or her absence, the Acting Chairperson, may administer oaths and compel the attendance of witnesses.
(1)
The Town Board may provide for the compensation of Board of Appeals members.
(2)
The Town Board may provide for compensation to be paid to experts, clerks and a Secretary and provide for such other expenses as may be necessary and proper.
(3)
The Town Board shall require Board of Appeals members to complete training and continuing education courses in accordance with requirements for the training of such members.
B.
Terms of members first appointed.
(1)
In the creation of a new Board of Appeals, or the reestablishment of terms of an existing Board, the appointment of members to the Board shall be for terms so fixed that one member's term shall expire at the end of the calendar year in which such members were initially appointed. The remaining members' terms shall be so fixed that one member's term shall expire at the end of each year thereafter. At the expiration of each original member's appointment, the replacement member shall be appointed for a term which shall be equal in years to the number of members of the Board.
(2)
Members now holding office for terms which do not expire at the end of a calendar year shall, upon the expiration of their term, hold office until the end of the year and their successors shall then be appointed for terms which shall be equal in years to the number of members of the Board.
(3)
If a vacancy shall occur otherwise than by expiration of term, the Town Board shall appoint the new member for the unexpired term.
C.
Minimum attendance requirements. No member of the Board of Appeals shall be absent from more than two meetings in any one calender year. Meetings shall include regular and special meetings of the Board. Legitimate medical and personal excuses communicated to the Board Chair prior to the meeting shall be excused.
D.
Training and continuing education. Every member of the Board of Appeals shall annually attend one or more training or continuing education course, or the equivalent of four hours, related to the work of the Board of Appeals. The Chair of the Zoning Board of Appeals shall approve and document all training and continuing education. The Town Board shall pay the reasonable expense of such training or continuing education.
E.
Decreasing membership. The Town Board may, by local law or ordinance, decrease the number of members of the Board of Appeals to three to take effect upon the next two expirations of terms. However, no incumbent shall be removed from office except upon the expiration of his or her term.
F.
Removal of members. The Town Board shall have the power to remove, after public hearing, any member of the Board of Appeals for cause. Any Board of Appeals member may be removed for noncompliance with minimum requirements relating to meeting attendance and training as established by the Town Board by local law or ordinance.
G.
Alternate members.
[Amended 12-18-2019 by L.L. No. 2-2019]
(1)
The Chairperson of the Planning Board or Zoning Board of Appeals may ask the designated alternate, approved and appointed by the Town Board, to substitute for a member when such member is unable to participate on an application or matter before said Board. Situations in which the Chairperson may ask the alternate to participate may include, but are not limited to, sickness, family emergencies, travel and conflict of interest.
(2)
In cases where the alternate participates due to conflict of interest, the alternate shall see the application through completion of the matter before the Board. In cases other than conflict of interest, the member shall resume responsibility when they return from their leave, so long as the member and the Board Chairperson feel they have sufficient knowledge, information and understanding of the project and application, which decision shall be at the sole discretion of Board Chairperson. When so appointed to participate, the alternate member shall possess all the powers and responsibilities of such member of the Board. Such designation shall be entered into the minutes of the Planning Board or Zoning Board of Appeals meeting at which the substitution is made.
H.
All provisions of this section relating to Board of Appeals member training and continuing education, attendance, conflict of interest, compensation, eligibility, vacancy in office, removal and service on other boards shall also apply to alternate members.
§ 180-76 Procedures.
In its quasi-judicial role, the 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 Chairman or at such other times as the Board of Appeals may determine. A quorum shall consist of three members, but in order to reverse a decision of the Zoning Enforcement Officer or authorize a variance, an affirmative vote of at least three members shall be required. A favorable vote of a majority plus one, i.e., of at least four members, shall also be required if the action taken by the Board of Appeals is contrary to an advisory recommendation received from the Saratoga County Planning Board under the provisions of § 239-m of the General Municipal Law. The Board shall keep accurate minutes of its proceedings, documenting fully all findings and showing the vote of each member upon each question. All meetings of the Board of Appeals shall be open to the public, except in accordance with the executive session of the Open Meetings Law.[1]
[1]
Editor's Note: See Public Officers Law § 101 et seq.
B.
Application and fee. All appeals and applications made to the Board shall be in writing, on forms prescribed by the Board, within 62 days of the action appealed from and shall be accompanied by the applicable fee in accordance with the fee schedule annually reviewed and established by the Town Board. Five print and one digital (pdf) copies of the entire application are required at submission. Every appeal or application 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 ground on which it is claimed that such variance should be granted. Each application shall also be accompanied by a short or full environmental assessment form, or DEIS, as required by the Environmental Conservation Law.
[Amended 2-18-2024 by L.L. No. 2-2024]
C.
Public notice and hearing.
(1)
The Board shall fix a reasonable time and place for a public hearing on any such appeal or application, of which hearing date the appellant shall be given notice and at which hearing he shall appear in person or by agent. The Board shall additionally provide notice as follows:
(a)
By publishing at least five business days prior to the date thereof a legal notice in the official newspaper of the Town.
(b)
By requiring that the Clerk of the Board of Appeals provide notice at least five business days prior to the date thereof of the substance of every appeal for a variance, together with a notice of the hearing thereon, by mailing such to the owners of all property abutting that of the applicant and all other owners within 300 feet, or such additional distances as the Board of Appeals may deem advisable, of the boundaries of the land involved in the appeal. Compliance with this notification procedure shall be certified to by the Clerk.
[Amended 2-18-2024 by L.L. No. 2-2024]
(2)
The names and addresses of owners notified shall be taken as such appear on the last completed tax roll of the Town.
(3)
Provided that there has been substantial compliance with this provision, the failure to give notice in exact conformance herewith shall not be deemed to invalidate an action taken by the Board of Appeals in either granting or denying an appeal for a variance from a specific provision of this chapter.
(4)
If the land involved in the appeal lies within 500 feet of the boundary of any other municipality, the Clerk of the Board of Appeals shall also submit at least five business 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.
[Amended 2-18-2024 by L.L. No. 2-2024]
D.
Required referral. A full statement of any appeal that meets the specific referral requirements of §§ 239-l and 239-m of the General Municipal Law shall also be referred prior to the public hearing to the Saratoga County Planning Board for its review. No action shall be taken by the Board of Appeals on such appeal until an advisory recommendation has been received from said County Planning Board or 30 days have elapsed since the County Planning 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 of Appeals, shall be recorded in accordance with standard forms adopted by the Board of Appeals and shall fully set forth the circumstances of the case and contain a full record of the findings on which the decision is based. Every decision shall be by resolution of the Board of Appeals, with such decision being filed in the office of the Town Clerk within five business days thereof. The Clerk of the Board of Appeals shall also notify the Zoning Enforcement Officer or Code Enforcement Official, the Clerk of the Town 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 days thereof with the Saratoga County Planning Board.
[Amended 2-18-2024 by L.L. No. 2-2024]
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 the Board of Appeals 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 and the criteria for granting relief stated in § 180-74C.
G.
Expiration of approval. Construction of use must be commenced within one year from the date of granting a variance, and all work must be completed within two years. If work is not completed within two years, the applicant must apply for an extension not to exceed one year from the Board of Appeals. No additional filing fee will be charged.
H.
Strict construction. All provisions of this chapter pertaining 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.
§ 180-77 Appeal to stay proceedings.
An appeal shall stay all proceedings in furtherance of the action appealed from, unless the administrative official charged with the enforcement of this chapter, from whom the appeal is taken, certifies to the Board of Appeals, after the notice of appeal is filed, that by reason of facts stated in the certificate a stay would, in his or her opinion, cause imminent peril to life or property, in which case proceedings shall not be stayed other than by a restraining order which may be granted by the Board of Appeals or by a court with jurisdiction on application, with notice to the administrative official from whom the appeal is taken, and on due cause shown.
§ 180-78 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 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 provision 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.