Union Vale City Zoning Code
ARTICLE X
Zoning Board of Appeals
§ 210-77 Creation, appointment and organization.
A.
A Zoning Board of Appeals shall be maintained in accordance with § 267 of the Town Law. Said Board of Appeals shall consist of five regular members appointed by the Town Board for staggered terms of five years. An alternate member, who may serve in the absence or requirement for recusal of a member in the consideration of a particular matter before the Board, may as authorized by Town Law also be appointed at the discretion of the Town Board pursuant to L.L. No. 1-2002, as adopted on May 30, 2002.
B.
The Town Board shall annually designate the Chairperson of the Zoning Board of Appeals from among the regular members, while the Board shall annually designate its Secretary and may prescribe reasonable rules, in addition to those provided herein, for the conduct of its business.
C.
No person who is a member of the Town Board shall be eligible for membership on such Board of Appeals.
D.
Members and alternates shall be residents of the Town of Union Vale.
[Added 1-8-2004 by L.L. No. 1-2004]
§ 210-78 Powers and duties.
The Zoning Board of Appeals shall have all the powers and duties prescribed by Town Law and by this chapter, which are more particularly specified as follows:
A.
Interpretation. The Zoning Board of Appeals may reverse or affirm, wholly or partially, 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 by the administrative official, i.e., the Town Code Enforcement Officer, charged with the administration and enforcement of this chapter and to that end shall have the power of the administrative official from whose order, requirement, decision, interpretation or determination the appeal is taken.
B.
Use variances.
(1)
The Zoning Board of Appeals, upon appeal from the decision or determination of the Code Enforcement Officer, shall have the power to grant use variances authorizing a use of land which otherwise would not be allowed or would be prohibited within the specific zoning district by the terms of this chapter.
(2)
No such use variance shall be granted by the Zoning Board of Appeals without a showing by the applicant that the applicable regulations and restrictions imposed by this chapter have caused unnecessary hardship. In order to prove such unnecessary hardship, the applicant shall demonstrate to the Board of Appeals compliance with each of the following criteria:
(a)
That under the applicable regulations and restrictions imposed by this chapter the applicant cannot realize a reasonable return, provided that the 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 district or neighborhood.
(d)
That the alleged hardship has not been self-created.
(3)
The Board of Appeals, in the granting of a use variance, shall grant the minimum variance that is deemed necessary and adequate to address the unnecessary 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.
C.
Area variances.
(1)
The Zoning Board of Appeals, upon appeal from the decision or determination of the Code Enforcement Officer, shall have the power to grant area variances from the area and bulk requirements of this chapter.
(2)
In making its determination, the Zoning Board of Appeals shall take into consideration the benefit to the applicant if the area 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 explicitly consider each of the following factors:
(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 other method or means feasible for the applicant to pursue, other than an area variance.
(c)
Whether the requested variance is substantial.
(d)
Whether the requested area variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or zoning district.
(e)
Whether the alleged practical 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)
The Board of Appeals, in the granting of an area variance, 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.
§ 210-79 Procedures.
In its quasi-judicial role, the Zoning Board of Appeals shall act in strict accordance with the procedure specified by § 267 of the Town Law and this chapter.
A.
Meetings, quorum and records.
(1)
Meetings shall be held at the call of the Chairperson or at such other times as the Zoning Board of Appeals may determine. All meetings and deliberations of the Board of Appeals shall be open to the public to the extent provided in Article 7 of the Public Officers Law.
(2)
A quorum shall consist of a simple majority, i.e., three, of the members, of the Board of Appeals but in order to reverse a decision of the Zoning Enforcement Officer, grant a variance or otherwise a change of use, an affirmative vote of at least three members shall be required. An affirmative vote of a majority plus one, i.e., of at least four members, shall further be required if the action taken by the Board of Appeals is contrary to an advisory recommendation received from the Dutchess County Department of Planning pursuant to the provisions of § 239 of the General Municipal Law.
(3)
The Board of Appeals shall keep accurate minutes of its proceedings documenting fully all findings and showing the vote of each member upon each question.
B.
Application and fee.
(1)
All applications made to the Zoning Board of Appeals shall be in writing, on forms prescribed by the Board, within 60 calendar 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. 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 (EAF) as required by the Board of Appeals pursuant to SEQRA, Article 8 of the Environmental Conservation Law and Title 6 Part 617 NYCRR.
(2)
Any application for an area variance from a dimensional requirement set forth within this chapter shall be accompanied by a drawing prepared by a licensed land surveyor documenting the specific area variance requested by depicting, through precise dimension, the proposed improvement and both the minimum setback or other requirement as established by this chapter and the setback or other requirement that would apply were the requested area variance granted.
[Added 3-11-2010 by L.L. No. 12-2010]
C.
Public notice and hearing. The Zoning Board of Appeals shall convene a public hearing within 62 calendar days on any such appeal or application, of which hearing date the appellant or applicant shall be given notice and at which hearing he shall appear in person or be represented by attorney or other agent. Any interested party may appear at such public hearing in person, or be represented by attorney or other agent, or submit comments in writing for timely receipt prior to the public hearing. The Board shall additionally provide notice as follows:
(1)
By publishing at least five calendar days prior to the date thereof a legal notice in the official newspaper of the Town, which notice shall set forth the location and the substance of the appeal or application.
(2)
By requiring the Secretary of the Board of Appeals provide notice not less than five calendar days prior to the date thereof of the substance of every appeal for a variance together with a notice of the hearing thereon by certified mail, return receipt requested, to the owners of all property abutting, lying directly opposite or otherwise lying within 300 feet of the land involved in the appeal.
(a)
The Secretary shall certify compliance with this notification procedure.
(b)
In accordance with the fee schedule established by the Town Board, the Town shall charge the appellant either a flat rate or a stated amount per notice for satisfying this requirement.
(c)
The names and addresses of owners notified shall be taken as such appear on the last completed tax roll of the Town.
(d)
Provided that there has been substantial compliance with this extraordinary notification requirement, 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.
(3)
If the land involved in the appeal lies within 500 feet of the boundary of any other municipality, the Secretary of the Board of Appeals shall also submit at least five calendar 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 notice of such public hearing as submitted to the official newspaper of the Town.
(4)
In the case of either an appeal for use variance or a request for determination with respect to the conversion of a nonconforming use to another nonconforming use under §§ 210-78B and D, respectively, of this article, by causing any parcel affected by the requested use variance or request for determination to be conspicuously posted on each road frontage for at least 10 calendar days prior to the public hearing.
D.
Referrals.
(1)
A full statement of any appeal meeting 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 Dutchess County Department of Planning for its review. The Zoning Board of Appeals shall take no action on such appeal until an advisory recommendation has been received from said County Planning Department or 30 calendar days have elapsed since the Planning Department received such full statement. Such actions shall include those affecting property located within 500 feet of any of the following:
(a)
Municipal boundary.
(b)
Boundary of any existing or proposed county or state park or other recreation area.
(c)
Right-of-way of any existing or proposed county or state road or highway.
(d)
Existing or proposed boundary of any county- or state-owned land on which a public building or institution is situated.
(2)
The Zoning Board of Appeals shall additionally refer to the Town Planning Board both all applications for use variances and requests for change in nonconforming uses and may refer to the Planning Board any other matters it deems pertinent for review and recommendation. The Board of Appeals shall defer decision on any such application for a period of 30 calendar days to permit a report thereon to be issued by the Planning Board. Upon its failure to submit such report to the Board of Appeals within the 30 calendar days, the Planning Board shall be deemed to have waived any rights concerning the matter being referred.
E.
Consultant review. In its review of an application for variance or request for interpretation, the Zoning Board of Appeals may, in addition to referral as may be required to the Dutchess County Department of Planning or either required or deemed appropriate to the Town Planning Board, consult with the Town's designated private planning, legal and engineering consultants.
[Added 3-11-2010 by L.L. No. 12-2010[1]]
F.
Decisions. Every decision of the Zoning Board of Appeals on an appeal or other request shall be made within 62 calendar days of the close of the public hearing by the Board, shall be recorded in accordance with standard forms adopted by the Board and shall fully set forth the circumstances of the case and contain a full record of the findings on which the decision is based, including record of compliance with the applicable provisions of SEQRA, Article 8 of the Environmental Conservation Law and Title 6 Part 617 NYCRR. Every decision shall be by resolution of the Board, with such decision being filed in the office of the Town Clerk within 10 calendar days thereof. The Board of Appeals shall also notify the Code Enforcement Officer, the Clerk of the Planning Board and any affected municipality given notice of the public hearing of its decision in each case. Should an action be taken contrary to a recommendation made by the Dutchess Court Department of Planning pursuant to § 239 of the General Municipal Law, report thereof shall be filed within seven calendar days with said Department.
G.
Attachment of conditions. The Zoning Board of Appeals shall, in the granting of either area variances or use variances, have the authority to impose reasonable conditions and restrictions as are directly related to and incidental to the proposed use of the property or the period of time such variance will be in effect. 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 neighborhood or community.
H.
Expiration of approval. Unless construction or use is diligently commenced within one calendar year from the date of the Zoning Board of Appeals' granting of a variance, such variance shall become null and void without further hearing or action by the Board.
§ 210-80 Other administrative provisions.
A.
Strict construction. All provisions of this chapter pertaining to the Zoning 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 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 appellant or other applicant shall be considered to have been deprived of the right of appeal or other application.
B.
Effect of appeal. Unless the Code Enforcement Officer finds there to be an imminent threat either to life or to property, an appeal stays all proceedings by either the Town or appellant in furtherance of the action which is the subject of the appeal.
C.
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 reviewed may be made by any member of the Board. A unanimous vote of all members of the Board then present and constituting not less than a quorum is required for such rehearing to be scheduled. Upon such rehearing, the Board may reverse, modify or annul its original order, decision or determination by 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 reviewed order, decision or determination will not be prejudiced thereby.
D.
Relief from decisions. Any person or persons jointly or severally aggrieved by any decision of the Zoning 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 otherwise be governed by the specific provisions of Article 78, but must be initiated as therein provided within 30 calendar days after the filing of the Board's decision in the office of the Town Clerk.