Rosendale City Zoning Code
ARTICLE VIII
Zoning Board of Appeals
§ 75-41 Establishment and duties. [1]
Pursuant to Town Law the Town Board shall appoint a Zoning Board of Appeals consisting of five members, shall designate its Chairman and also may provide for compensation to be paid to said members and provide for such other 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. In the absence of a Chairperson, the Board of Appeals may designate a member to serve as Acting Chairman.
A.
Terms of appointment of the members of the Board of Appeals first appointed shall be as follows: 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 and 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 that 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 and procedure, bylaws, forms. The Board of Appeals shall have the power to make, adopt and promulgate such written rules or procedure, bylaws and forms as they may deem necessary for the proper execution of their 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 ordinances of the Town of Rosendale. 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.
§ 75-42 Procedure and hearing.
A.
General procedure.
(1)
The Board of Appeals is governed by, and shall act in strict accordance with, the procedures specified by Town Law, this chapter, and its own duly adopted rules, bylaws and forms.
(2)
Upon proper request made in the form and manner prescribed by the Board of Appeals and accompanied by a fee in accord with a fee schedule adopted by the Town Board, the Zoning Board of Appeals shall perform the following functions:
(a)
Hear and decide any question properly brought before it involving the interpretation of any provision of this chapter, as provided for in § 75-45;
(b)
Hear and decide appeals from any decision, determination, act or failure to act of the Building Inspector, and all matters properly referred to it by the Building Inspector;
(3)
Required data. All applications to the Zoning Board of Appeals shall be filed with the Secretary of the Board of Appeals and shall be made in a form required by the Board of Appeals and shall be accompanied by payment of a filing fee as adopted and as may be in the schedule of fees as set forth and amended by the Town Board. All applications for variances must be accompanied by a plot plan, drawn to scale and accurately dimensioned, showing the location of all existing and proposed buildings and structures on the lot, and also showing, or accompanied by, any other relevant data and documentation considered by the Zoning Board of Appeals to be necessary and appropriate for the review of such applications.
(4)
In exercising the above-mentioned powers and duties, the Board of Appeals may, in conformity with Town Law, reverse, affirm or modify the order, requirement, decision or determination appealed from and shall make such order, requirement, decision or determination as ought to be made in the case referred to it. The concurring vote of a majority of the Board of Appeals shall be necessary to reverse any order, requirement, decision or determination of the Building Inspector or to grant a variance, or to decide in favor of the applicant any matter upon which such Board is required to pass.
B.
Meetings and procedure.
(1)
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. The Chairperson or, in his or her absence, the Acting Chairperson may administer oaths and compel the attendance of witnesses.
(2)
All meetings of the Board of Appeals shall be open to the public.
(3)
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 and regulation, every amendment or repeal thereof, and every order, requirement, decision or determination of the Board of Appeals shall immediately be filed in the office of the Town Clerk.
(4)
The Board of Appeals 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 shall be reimbursed for any expenses incurred as a result of such assistance. The costs of reimbursing any such expense shall be borne by the appealing party.
C.
Referrals.
(1)
Referrals to the Planning Board. At least 15 days before the date of a hearing held in connection with any appeal or application submitted to the Zoning Board of Appeals, or such longer time as may have been agreed upon by it and the Town Planning Board, said Board shall transmit to the Planning Board a copy of said appeal or application and shall request that the Planning Board submit to the Board of Appeals its advisory opinion on said appeal or application. The Planning Board shall submit a report of such advisory opinion prior to the date of said public hearing. The failure of the Planning Board to submit such report shall be interpreted as a favorable opinion for the appeal or application.
(2)
Referral to the Ulster County Planning Board. The application for a variance from the Zoning Board of Appeals involving real property lying within 500 feet of any of the features listed under § 75-48B(1) shall also be referred to the Ulster County Planning Board in accord with §§ 239-l and 239-m of the General Municipal Law. The Zoning Board of Appeals shall not make a decision until it has received comment from the Ulster County Planning Board or until 30 days have elapsed.
D.
Public hearings.
(1)
The Board of Appeals, on due notice, shall hold a public hearing on every appeal and every application for a variance referred to said Board or upon which it is required to pass under this chapter.
(2)
Notice of each public hearing shall be published in a newspaper of general circulation in the Town of Rosendale at least 10 days prior to such hearing. In addition, the Board of Appeals shall cause a notice of such hearing and an explanation of any change sought to be sent to the owners of all property adjacent to the subject property. Such notices shall be sent to the last known address as shown on the most recent Town tax records and mailed at least 10 days prior to such public hearing.
(3)
At least 10 days before such hearing, the Board of Appeals shall mail notices thereof to the regional state park commission having jurisdiction over any state park or parkway within 500 feet of the property affected by such appeal; and to the county, metropolitan or regional planning agency, if the property affected by such appeal is within 500 feet of any of the features specified in Article IX, § 75-48B, as required by § 239-m of the General Municipal Law, which notice shall be accompanied by a full statement of the matter under consideration, as defined in § 239-m, Subdivision 1, of the General Municipal Law.
(4)
The designated official for purposes of receipt of hearing notices for counties shall be the Clerk of the County Legislature. For cities, towns and villages, the designated receiving official shall be the clerk of the municipality. In the case of the state parks or parkways, the designated receiving office shall be the Palisades Interstate Park Commission.
E.
Findings and conclusions.
(1)
Within 62 days after such public hearing, and after considering the application, the Board of Appeals shall decide upon the appeal and make a written report on the findings and conclusions concerning the subject matter of such hearing, including the reasons for the grant or denial of the relief sought.
(2)
The time within which the Board of Appeals must render its decision may be extended by mutual consent of the applicant and the Board.
(3)
Each decision shall be filed in the office of the Town Clerk within five business days after the day such decision is rendered, and copy thereof mailed to the applicant.
F.
Rehearing.
(1)
A motion for the Zoning Board of Appeals to hold a rehearing to review any order or determination of the Board not previously reviewed 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.
(2)
Such rehearing is subject to the same notice provision as an original hearing.
(3)
Upon such rehearing the Board of Appeals may reverse, modify or annul its original order, decision or determination upon the unanimous vote of all members then present, provided the Board finds that the rights vested in person acting on good faith in reliance upon the reviewed order, decision or determination will not be prejudiced thereby.
§ 75-43 Appeals.
A.
Any person allegedly aggrieved by a decision, determination, act or refusal to act, of the Building Inspector may, within 60 days of such decision, determination, act or failure to act, file an appeal with the Board of Appeals. Such request shall clearly state the decision, determination, act or failure to act, of the Building Inspector from which the appeal is taken.
B.
Any appeal from a decision of the Building Inspector, properly filed with the Board of Appeals, shall stay all proceedings in furtherance of the action appealed from, unless the Building Inspector certifies to the Board of Appeals that by reason of facts stated in the certification, a stay would, in his/her opinion, cause imminent peril to life and property.
C.
The Board of Appeals shall have the power to stay all proceedings in furtherance of the action appealed from, over any action by the Building Inspector from whom the appeal is taken, upon notice to the Building Inspector and on due cause shown.
D.
Considerations in special flood hazard areas. In making a determination on an appeal from § 75-27, Flood damage prevention regulations, the Zoning Board of Appeals shall consider all technical evaluations, standards specified in other sections of this chapter and the following factors:
(1)
The danger to life and property due to flooding or erosion damage.
(2)
The danger that materials may be swept onto other lands to the injury of others.
(3)
The susceptibility of the proposed facility and its contents to flood damage and the effect of the damage on the individual owner.
(4)
The importance of the services provided by the proposed facility to the community.
(5)
The necessity to the facility of a waterfront location.
(6)
The availability of alternative locations for the proposed use which are not subject to flooding or erosion damage.
(7)
The compatibility of the proposed use with existing and anticipated development.
(8)
The relationship of the proposed use to the Comprehensive Plan, floodplain management program and zoning designation for the area.
(9)
The safety of access to the property in times of flood for ordinary and emergency vehicles.
(10)
The expected heights, velocity, duration, rate of rise and sediment transport of the floodwaters expected at the site.
(11)
The costs of providing governmental services during and after flood conditions, including search and rescue operations, maintenance and repair of public utilities and facilities, such as sewer, gas, electrical and water systems, and streets and bridges.
§ 75-44 Variances.
A.
Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this chapter, the Board of Appeals shall have the power, after public notice and hearing, to vary or modify the application of any of the regulations or provisions of the chapter relating to the use, construction or alteration of buildings or structures, or the use of land, so that the spirit of the chapter shall be observed, public safety and welfare secured and substantial justice done.
B.
Criteria for granting variances.
(1)
Use variance. A "use variance," as defined in this chapter, may only be granted if there is a showing by the applicant that the applicable zoning regulations and restrictions have caused unnecessary hardship. In order to prove such unnecessary hardship the applicant shall demonstrate to the Zoning Board of Appeals that, for each and every permitted use under the zoning regulations for the particular district in which the property is located:
(a)
The applicant cannot realize a reasonable return, provided that the lack of return is substantial as demonstrated by competent financial evidence;
(b)
The alleged hardship relating to the property is unique and does not apply to a substantial portion of the district or neighborhood;
(c)
The requested variance, if granted, will not alter the essential character of the neighborhood; and
(d)
The alleged hardship has not been self-created.
(2)
Area variance. Prior to granting an "area variance," as defined in this chapter, the Zoning Board of Appeals shall consider the following:
(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 grant 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 a 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; and
(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)
For reasons fully set forth in the findings, the granting of the variance by the Board of Appeals shall be the minimum variance necessary.
(4)
In no case shall a variance be granted solely for reasons of additional financial gain on the part of the owner of land or building involved.
D.
Conditions and compliance to the law. The Zoning 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 one directly related to and incidental to the proposed use of the property. Such conditions shall be consistent with the spirit and intent of these regulations, and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.
(1)
All the provisions of this chapter relating to the Board of Appeals shall be strictly construed. Said 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.
(2)
Unless construction is commenced and diligently pursued within 12 months of the date of the granting of a variance, such variance shall become null and void.
(3)
If an area variance has been granted for the purpose of subdivision and creation of a lot of nonconforming area, application for such subdivision must be made to the Planning Board within 12 months of the date of when the variance was granted, otherwise such variance shall become null and void.
E.
When the Board of Appeals finds the zoning classification of a particular property to be conducive to the deprivation of the reasonable use of the land or buildings and where said Board finds the same condition to apply generally to other land or buildings in the same neighborhood or zoning district, the Board of Appeals shall call this condition to the attention of the Town Board.
§ 75-45 Interpretation.
The Board of Appeals shall, upon proper request, interpret any provision of this chapter about which there is uncertainty, lack of understanding or misunderstanding, ambiguity or disagreement, and shall determine the exact location of any zoning district boundary about which there may be uncertainty or disagreement.
§ 75-46 Relief from decisions.
A.
Application to Supreme Court by aggrieved persons.
(1)
Any person or persons, jointly or severally aggrieved by any decision of the Board of Appeals or of any officer, department, board or bureau of the Town, may apply to the Supreme Court for review by a proceeding under Article 78 of the Civil Practice Law and Rules of the State of New York.
(2)
Such proceeding shall be instituted after the filing of a decision of the Board in the office of the Town Clerk or in the office designated by resolution of the Town Board.
B.
Costs of appeal. Costs shall not be allowed against the Board of Appeals unless it shall appear to the court that the Board acted with gross negligence or bad faith or with malice in making the decision appealed from.
C.
Preference of appeal to court. All issues in any proceeding under this section shall have preference over all other civil actions and proceedings.
D.
Power of court. If, upon the hearing at Supreme Court, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his or her findings of fact and conclusions of the law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.