Mount Hope City Zoning Code
ARTICLE XIV
Board of Appeals
§ 250-80 Creation, appointment and organization.
A.
Establishment and membership. There shall be a Board of Appeals of five members pursuant to the provisions of Article 16 of the Town Law. The Town Board shall appoint said members, shall designate a Chairman, and may remove any member of the Board of Appeals for cause after public hearing. The members of the Board shall be appointed for a term of five years. If a vacancy shall occur otherwise than by expiration of the term, it shall be filled by the Town Board by appointment for the unexpired term.
B.
Procedure. Meetings shall be held at the call of the Chairman or at other such times as the Board of Appeals may determine. A quorum shall consist of three members, but, in order to reverse a decision of the Building Inspector or authorize a variance, an affirmative vote of at least three members shall be required. 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.
C.
The Town Board of the Town of Mount Hope shall be responsible for appointing an attorney or attorneys to represent the Zoning Board of Appeals and to make all appropriations necessary for the attorney or attorneys.
D.
Alternate members of the Board of Appeals and the Planning Board.
(1)
Board of Appeals. As authorized by Town Law § 267, Subdivision 11, the Town Board hereby establishes up to three positions of alternate member of the Board of Appeals, who may serve on such Board in the event that a regular member is unable to serve. Appointment, terms, training requirements, duties and responsibilities of such alternate members shall be as provided in Town Law § 267, Subdivision 11. The Town Board intends to supersede § 267, Subdivision 11, of the Town Law only to expand the circumstances in which an alternate may serve, so that an alternate may serve when a regular member has a conflict of interest or is absent or where there is a vacancy on the Board of Appeals.
(2)
Planning Board. As authorized by Town Law § 271, Subdivision 15, the Town Board hereby establishes up to three positions of alternate member of the Planning Board, who may serve on such Board in the event that a regular member is unable to serve. Appointment, terms, training requirements, duties and responsibilities of such alternate members shall be as provided in Town Law § 271, Subdivision 15. The Town Board intends to supersede § 271, Subdivision 15, of the Town Law only to expand the circumstances in which an alternate may serve, so that an alternate may serve when a regular member has a conflict of interest or is absent or where there is a vacancy on the Planning Board.
§ 250-81 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, provided that none of the following provisions shall be deemed to limit any power of said Board that is conferred by law:
A.
Interpretation. On appeal from an order, requirement, decision or determination made by an administrative official, or on request by an official, board or agency of the Town, to decide any of the following questions:
B.
Variances. To authorize, upon appeal in specific cases, such variances from the terms of this chapter after public notice and personal notice and after hearing and subject to appropriate safeguards and conditions for the protection of public and of neighboring properties as will not be contrary to the public interest where, due to exceptional and extraordinary circumstances, there are unnecessary hardships in the way of carrying out of the strict letter of this chapter, subject to terms and conditions to be fixed by the Board. The sole purpose of any variance shall be to prevent discrimination, and no variance shall be granted which would have the effect of granting a special privilege not shared by other property in the same vicinity or zone.
(1)
Use variance. The Board of Appeals, on appeal from the decision or determination of the administrative official charged with the enforcement of this chapter, shall have the power to grant use variances, authorizing the use of the land which otherwise would not be allowed or would be prohibited by the terms of this chapter. No such use variance shall be granted by the Board of Appeals without a showing by the applicant that applicable zoning regulations and restrictions create unnecessary hardship. In order to prove such unnecessary hardship, the applicant must demonstrate to the Board and the Board must find that:
(a)
Under applicable zoning regulations 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.
(d)
The alleged hardship has not been self-created.
(2)
Area variance. The Zoning Board shall have the power upon appeal from a decision or determination of an administrative official charged with the enforcement of this chapter, or upon direct application of a property owner, to grant area variances from the area or dimensional requirements of this chapter. In making its determination, the Board 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 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 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.
(3)
Basis for determination of variance.
(a)
That the granting of either an area or use variance under such conditions as the Board may deem necessary or desirable to apply thereto will be in harmony with the general purpose and intent of this chapter, will not represent a radical departure therefrom, will not be injurious to the neighborhood, will not change the character thereof and will not be otherwise detrimental to the public welfare. That for the reasons set forth in the findings of the Board, the granting of the variance is necessary for the reasonable use of the land or building, and that the variance as granted by the Zoning Board is the minimum variance that will accomplish this purpose.
(b)
The needs or desires of a particular owner or tenant or of a particular prospective owner or tenant shall not, either alone or in conjunction with other factors, afford any basis for the granting of a variance. The fact that the improvements already existing at the time of the application are old, obsolete, outmoded or in disrepair or the fact that the property is then unimproved shall not be deemed to make the plight of the property unique or to contribute thereto.
(c)
Where the Board finds the zoning classification of a particular property to be conducive to the deprivation of any economic benefit or reasonable use of the land or building by the owner thereof, and where the Board deems the same condition to apply generally to other land or buildings in the same neighborhood or district, said Board may call this condition to the attention of the Planning Board or Town Board.
(d)
In all cases where the Board of Appeals grants a variance from the strict application of the requirement of this chapter, it shall be the duty of such Board to attach conditions and safeguards as may be required in order that the result of its action may be nearly as possible in accordance with the spirit and intent of this chapter.
§ 250-82 Procedure.
A.
Application for any action by the Board of Appeals shall be submitted in the form required by the Board and filed with the Town Clerk.
B.
The Board shall fix a time and place for a public hearing thereon, and shall provide for giving of notice at least five days prior to the date thereof, as follows:
(1)
By publishing a notice in the official newspaper for at least two consecutive days or editions.
(2)
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.
(3)
By requiring the applicant to give notice of the substance of every appeal for a variance together with notice of the hearing in a form prescribed and approved by the Zoning Board thereon by mailing to the owners of all property abutting that held by the applicant in the immediate area (whether or not involved in such appeal) and all other owners within a 500-foot radius, or such additional distance or persons as the Board of Appeals may deem advisable, from the exterior boundaries of the land involved in such appeal, and to further provide notice may be either by certified or registered mail, return receipt requested.
(a)
The names of said owners shall be taken as they appear on the last completed tax roll of the Town.
(b)
Provided that there shall have been substantial compliance with these provisions, the failure to give notice in exact conformance herewith shall not be deemed to invalidate action taken by the Board of Appeals in connection with the granting of an appeal for a variance.
C.
If the land involved in an appeal lies within 500 feet of the boundary of any other municipality, the applicant shall also mail to the municipal clerk of such other municipality or municipalities, a copy of notice of the substance of every appeal together with a copy of the official notice of the public hearing thereon no later than the day after such notice appears in the official newspaper of the Town. Such notice shall be by registered mail, return receipt requested, and the applicant shall furnish proof of compliance with the notifications procedure.
D.
Areas within 500 feet.
(1)
Where the land involved in any application for a variance lies within 500 feet of:
(a)
The boundary of any other municipality; or
(b)
The boundary of any existing or proposed county or state park or other recreation area; or
(c)
The right-of-way of any existing or proposed county or state road or highway; or
(d)
The right-of-way of any stream or drainage channel owned by the county or for which the county has established channel lines; or
(e)
The existing or proposed boundary of any county- or state-owned land on which a public building is situated; or
(f)
The boundary of a farm operation within an agricultural district as defined by Article 25-AA of the Agricultural and Markets Law.
(2)
In such cases, unless waived by the agreement between the Town of Mount Hope and Orange County, the application, accompanied with the notice of public hearing, shall be transmitted by the Secretary of the Board of Appeals to the Orange County Planning Department for review in accordance with the provisions of §§ 239-1 and 239-m of Article 12-B of the General Municipal Law of the State of New York. No action shall be taken by the Board of Appeals on such application until the Department's recommendation has been received or 30 days have elapsed after the Department received the full statement on the application's proposal.
E.
A variance shall become null and void and shall be deemed abandoned after six months of its issuance in writing unless:
F.
All appeals made to the Board of Appeals shall be in writing, on forms prescribed by the Board, and shall be accompanied by a fee according to the Town fee schedule. In addition, the applicant is responsible for mailing together with the deposit on the day of the hearing of an additional amount to be applied to the payment of the original and one copy of the stenographic minutes and expenses for the benefit of the Town, the applicant to be obligated to pay the entire cost thereof. A refund shall be made of the deposit which is in excess of stenographic expenses.
G.
Each appeal shall fully set forth the circumstances of the case. Every appeal or application shall refer to the specific provision of this chapter involved, and shall exactly set forth, as the case may be, the interpretation that is claimed, the details of the variance that is applied for and the grounds on which it is claimed that the same should be granted.
H.
Every decision of the Board of Appeals shall be recorded in accordance with standard forms adopted by the Board and 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 of the Board shall be by resolution, and each such resolution shall be filed in the office of the Town Clerk by case number, under the heading of either "interpretation" or "variance." The filing shall include all documents pertaining to the decision. The Board of Appeals shall notify the Town Clerk, the Building Inspector, each member of the Town Board, the Secretary of the Planning Board, and the municipal clerk of any affected municipality given notice of hearing set forth in § 250-82C of its decision in each case.
I.
All the provisions of this chapter relating to the Board of Appeals shall be strictly construed. The Board, 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.