New Lebanon City Zoning Code
§ 205-12
Zoning Board of Appeals.
A.
Creation, appointment and organization.
(1)
A Zoning Board of Appeals is hereby established in accordance with Article 16, § 267, of the Town Law. It shall consist of five members, each to serve for a term of five years. The term of office of the members of the Board of Appeals and the manner of their appointment shall be in accordance with the provisions of Article 16, § 267, of the Town Law. Vacancies occurring in said Board shall be filled for such unexpired period only.
(2)
The Zoning Board of Appeals shall have the duties, rights, powers and functions conferred upon it by §§ 267, 267-a and 267-b of Article 16 of the Town Law and any other provisions of the Town Law and any other provisions of law or local law applicable thereto, including the following.
B.
Procedure.
(1)
Meetings; minutes; records. Meetings of the Zoning Board of Appeals shall be open to the public to the extent provided in Article 7 of the Public Officers Law. The Zoning Board of Appeals shall keep minutes of its proceedings, showing the vote of each member upon every question, or, if absent or failing to vote, indicating such fact, and shall also keep records of its examinations and other official actions.
(2)
Filing requirements. Every rule, regulation, every amendment or repeal thereof, and every order, requirement, decision or determination of the Zoning Board of Appeals shall be filed in the office of the Town Clerk within five business days and shall be a public record.
(3)
Assistance to Zoning Board of Appeals. Such Board shall have the authority to call upon any department, agency or employee of the Town for such assistance as shall be deemed necessary and as shall be authorized by the Town Board. Such department, agency or employee may be reimbursed for any expenses incurred as a result of such assistance.
(4)
Hearing appeals. The jurisdiction of the Zoning Board of Appeals shall be appellate and shall include hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation, or determination made by the Zoning Enforcement Officer. An appeal may be taken by any person aggrieved or by an officer, department, board or bureau of the Town.
[Amended 12-14-2021 by L.L. No. 4-2021]
(5)
Filing of administrative decision and time of appeal.
(a)
Each order, requirement, decision, interpretation or determination of the Zoning Enforcement Officer shall be filed in the office of the Town Clerk, within five business days from the day it is rendered, and shall be a public record.
(b)
An appeal shall be taken within 60 days after the filing of any order, requirement, decision, interpretation or determination of the Zoning Enforcement Officer, by filing with such officer and with the Zoning Board of Appeals a notice of appeal, specifying the grounds thereof and the relief sought. The Zoning Enforcement Officer shall transmit to the Zoning Board of Appeals all the papers constituting the record upon which the action appealed from was taken.
(6)
Stay upon appeal. An appeal shall stay all proceedings in furtherance of the action appealed from, unless the Zoning Enforcement Officer certifies to the Zoning Board of Appeals, after the notice of appeal shall have been filed with the Zoning Board of Appeals, 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 otherwise than by a restraining order which may be granted by the Zoning Board of Appeals or by a court of record on application, on notice to the administrative official from whom the appeal is taken and on due cause shown.
(7)
Hearing on appeal. The Zoning Board of Appeals shall fix a reasonable time for the hearing of the appeal or other matter referred to it and give public notice of such hearing by publication in a paper of general circulation in the Town at least five days prior to the date thereof. The cost of sending or publishing any notices relating to such appeal, or a reasonable fee relating thereto, shall be borne by the appealing party and shall be paid to the Board prior to the hearing of such appeal. Upon the hearing, any party may appear in person or by agent or attorney. In addition to the public notice of a hearing, notice shall be given in writing to all property owners of the land included in such proposed change and the land immediately adjacent extending 100 feet therefrom and the land directly opposite thereto extending 100 feet from the street or highway frontage of such opposite land, as said property owners and addresses appear on the latest completed assessment roll of the Town. At the hearing, any party may appear in person or by agent or by attorney.
(8)
Decision. The Zoning 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 powers of the officer from whom the appeal is taken.
(9)
The Zoning Board of Appeals shall decide upon the appeal within 62 days after the close of said hearing. The time within which the Board of Appeals must render its decision may be extended by mutual consent of the applicant and the Board.
(10)
Filing of decision and notice. The decision of the Zoning Board of Appeals on the appeal shall be filed in the office of the Town Clerk within five business days after the day such decision is rendered, and a copy thereof mailed to the applicant.
(11)
Notice to County Planning Board. At least five days before such hearing, the Zoning Board of Appeals shall mail notices thereof to the County Planning Board as required by § 239-m of the General Municipal Law, which notice shall be accompanied by a full statement of the proposed action, as defined in Subdivision 1 of § 239-m of the General Municipal Law.
(12)
Compliance with State Environmental Quality Review Act. The Zoning Board of Appeals shall comply with the provisions of the State Environmental Quality Review Act (Article 8 of the Environmental Conservation Law) and its implementing regulations as codified in Title 6, Part 617, of the New York Codes, Rules and Regulations.
(13)
Rehearing. A motion for the Zoning Board of Appeals to hold a rehearing to review any order, decision or determination of the Board not previously reheard may be made by any member of the Board. A unanimous vote of all members of the Board then present is required for such rehearing to occur. Such rehearing is subject to the same notice provisions as an original hearing. Upon such rehearing, the Board may reverse, modify or annul its original order, decision or determination upon the unanimous vote of all members then present, provided that the Board finds that the rights vested in persons acting in good faith in reliance upon the reheard order, decision or determination will not be prejudiced thereby.
(14)
Voting requirements.
(a)
Decision of the Board. Except as required by Subsection B(13), every motion or resolution of the Zoning Board of Appeals shall require for its adoption the affirmative vote of a majority of all the members as fully constituted regardless of vacancies or absences. Where an action is the subject of a referral to the county planning agency, the voting provisions of § 239-m of the General Municipal Law shall apply.
(b)
Default denial of appeal. In exercising its appellate jurisdiction only, if an affirmative vote of a majority of all members of the Board is not attained on a motion or resolution to grant a variance or reverse any order, requirement, decision or determination of the Zoning Enforcement Officer within the time allowed by Subsection B(9), the appeal is denied. The Board may amend the failed motion or resolution and vote on the amended motion or resolution within the time allowed without being subject to the rehearing process as set forth in Subsection B(13) of this section.
C.
Permitted action by Zoning Board of Appeals.
(1)
Orders; requirements; decisions; interpretations; determinations. The Zoning Board of Appeals may reverse or affirm, wholly or partly, 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 Zoning Enforcement Officer and to that end shall have all the powers of the Zoning Enforcement Officer.
(2)
Use variances.
(a)
The Zoning Board of Appeals, on appeal from the decision or determination of the administrative official charged with the enforcement of such ordinance or local law, shall have the power to grant use variances, as defined herein.
(b)
No such use variance shall be granted 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;
[4]
That the alleged hardship has not been self-created; and
[5]
Such other additional or different demonstrations that may be prescribed by § 267-b of the Town Law, as it may be amended from time to time.
(c)
The Zoning Board of Appeals, in granting use variances, shall grant the minimum variance that it deems necessary and adequate to address the 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.
(3)
Area variances.
(a)
The Zoning Board of Appeals shall have the power, upon an appeal from a decision or determination of the administrative official charged with the enforcement of such ordinance or local law, to grant area variances as defined herein.
(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 Zoning Board of Appeals 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 Zoning Board of Appeals but shall not necessarily preclude the granting of the area variance; and
[6]
Such other additional or different considerations that may be prescribed by § 267-b of the Town Law, as it may be amended from time to time.
(c)
The Zoning 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.
D.
Imposition of conditions. The Zoning Board of Appeals, in granting use and area variances, shall 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 the Zoning Law and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.
[Amended 12-14-2021 by L.L. No. 4-2021]