Tivoli Village City Zoning Code
ARTICLE X
Board of Appeals
§ 231-69 Creation, composition and appointment.
Creation. A Board of Appeals is hereby established in accordance with § 7-712 of the Village Law.
Composition. The Board of Appeals shall consist of five members.
Appointment. The Board of Trustees of the Village shall appoint the members of the Board of Appeals, each to be appointed for three years. No person who is a member of the Village Board or a Police Justice or a member of the Village Planning Board shall be eligible for membership on such Board of Appeals.
Removal. The Board of Trustees shall have the power to remove any member of the Board for cause after public hearing.
Vacancies. Vacancies shall be filled for the unexpired term of the member whose place has become vacant.
Alternate members.
[Added 3-16-2005 by L.L. No. 2-2005]
Applicability. This section shall apply to the appointment, terms, functions and powers of alternate members appointed to serve on the Village of Tivoli Zoning Board of Appeals.
Declaration of policy. It is sometimes difficult to maintain a quorum on the Board of Appeals because members are ill, unable to attend, on extended vacation, or find they have a conflict of interest on a specific matter before the Board of Appeals. In such instances, official business cannot be conducted, which may delay or impede adherence to required timelines. The use of alternate members in such instances is hereby authorized pursuant to the provisions of this subsection.
Appointment of alternate members.
The Mayor, subject to the approval of the Board of Trustees, shall appoint alternate members of the Board of Appeals to serve as provided in this subsection. The number of alternate members appointed shall not exceed two. Alternate members of the Board of Appeals shall be appointed for a terms of two years.
The Chairperson of the Board of Appeals may designate an alternate to substitute for a member when such a member is not present or is unable to participate on an application or matter before the Board of Appeals. When so designated, the alternate member shall possess all the powers and responsibilities of such member of the Board of Appeals. Such designation shall be entered into the minutes of the initial Board of Appeals meeting at which the substitution is made.
All provisions of state law relating to Board of Appeals member eligibility, vacancy in office, removal, compatibility of office and service on other boards, as well as any provisions of a local law relating to training, continuing education, compensation and attendance, shall also apply to alternate members.
Supersession of Village Law. This subsection is hereby adopted pursuant to the provisions of § 10 of the Municipal Home Rule Law. Pursuant to § 10 of the Municipal Home Rule Law, it is the intent of the Village Board of the Village of Tivoli to supersede the provisions of § 7-712, Subsection 11, of the Village Law relating to the appointment of alternate members to the Zoning Board of Appeals.
§ 231-70 General procedures.
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. All meetings of such Board shall be open to the public.
Oaths. The Chairman, or in his absence the Acting Chairman, may administer oaths and compel the attendance of witnesses.
Minutes. The 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 examination and other official actions. Every rule, regulation, every amendment or repeal thereof and every order, requirement, decision or determination of the Board shall immediately be filed in the office of the Board and with the Village Clerk and shall be a public record.
Hearing. The Board of Appeals shall fix a reasonable time for the hearing of any application for variance or the hearing of an appeal for administrative review.
[Amended 11-18-2009 by L.L. No. 1-2009]
Notice. The Board of Appeals shall give due notice to the parties and, not less than 10 days prior to the hearing date, publish such notice at least once in the official newspaper of the Village or, if there is no official newspaper designated, the newspaper designated by the Village Board of Trustees for such purposes. The applicant shall give notice of any application for a variance by certified mail at least five days prior to the date of the hearing to all persons, firms or corporations owning property or residing within 200 feet of the location of the property upon which its use is proposed to be established. Proof of such notifications shall be given to the Board on or before the date of the hearing. Upon the hearing, any party may appear in person, or by agent or by attorney. All costs of publication and notice shall be paid by the applicant.
[Amended 11-18-2009 by L.L. No. 1-2009]
Decision. The Board of Appeals shall decide the application for variance or appeal for administrative review within 62 days after the final hearing as provided by Village Law § 7-712. The concurring vote of a majority of the members of the Board of Appeals shall be necessary to grant a variance.
[Amended 11-18-2009 by L.L. No. 1-2009]
Fees. Fees for administrative review and variances shall be determined by the Village Board of Trustees.
[Amended 11-18-2009 by L.L. No. 1-2009]
§ 231-71 Powers.
The Board of Appeals shall have the following powers:
Administrative review.
To hear and decide appeals from and review any order, requirement, decision or determination made by the Zoning Enforcement Officer or other administrative officer carrying out or enforcing any provision of this chapter.
The Board 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.
Appeal. An appeal to the Board of Appeals for administrative review may be taken by any person, firm or corporation aggrieved, or by any governmental officer, department, board or bureau affected by any decision of the Zoning Enforcement Officer based in whole or in part upon the provisions of this chapter. Such appeal shall be taken by filing with the Board of Appeals a notice of appeal specifying the grounds thereof. The Zoning Enforcement Officer shall forthwith transmit all papers constituting the record upon which the action appealed from was taken to the Board of Appeals.
Stay of proceedings. An appeal stays all proceedings in furtherance of the action appealed from, unless the Zoning Enforcement Officer from whom the appeal is taken certifies to the Board of Appeals after the 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 Zoning Enforcement Officer and on due cause shown.
[1]Variance. To hear applications for variance from the terms of this chapter as will not be contrary to public interest where, owing to unique conditions, a literal enforcement of the provisions of this chapter will result in unnecessary hardship, while adhering to the spirit of this chapter and doing substantial justice.
Area variance. An area variance is one which does not involve a use which is prohibited by this chapter. When the variance requested would vary the required yard, setback, height or similar regulations, the Zoning Board of Appeals may grant said variance upon finding that the variance sought would meet the requirements of Village Law § 7-712-b, Subdivision 3.
[Amended 5-11-1998 by L.L. No. 1-1998]
Use variance. A use variance would allow an applicant to utilize land for a use not allowed in the district's regulations. The Zoning Board of Appeals may grant said variance upon finding that the variance sought would meet the requirements of Village Law § 7-712-b, Subdivision 2.
[Amended 5-11-1998 by L.L. No. 1-1998]
§ 231-72 Recourse.
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. It must be instituted within 30 days after the filing of a decision in the office of the Village Clerk.
§ 231-73 Referral to Dutchess County Department of Planning and Development.
[Amended 11-18-2009 by L.L. No. 1-2009]
Variance applications shall be referred to the Dutchess County Department of Planning and Development pursuant to § 239-m of the General Municipal Law for review, as required.
Within 30 days after final action by the Zoning Board of Appeals on a matter referred to it pursuant to Subsection A, or such shorter period as may be prescribed by the General Municipal Law, the Zoning Board shall file a report of the final action it has taken with the Dutchess County Department of Planning and Development.
§ 231-74 Amendments; referral to Dutchess County Department of Planning and Development.
[Amended 11-18-2009 by L.L. No. 1-2009]
The regulations, restrictions and boundaries established by this chapter may from time to time be amended, supplemented, changed or modified or repealed. However, pursuant to § 239-m of the General Municipal Law, proposed zoning amendments shall be referred to the Dutchess County Department of Planning and Development for review, as required.
Within 30 days after final action by the Village Board of Trustees on a matter referred to it pursuant to Subsection A, or such shorter period as may be prescribed by the General Municipal Law, the Village Board shall file a report of the final action it has taken with the Dutchess County Department of Planning and Development.