Valatie City Zoning Code
ARTICLE VIII
Zoning Board of Appeals
§ 345-41 Definitions; establishment and duties; general provisions.
A. AREA VARIANCE USE VARIANCE
Definitions. As used in this article, the following terms shall have the meanings indicated:
The authorization by the Zoning Board of Appeals for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations.
The authorization by the Zoning Board of Appeals for the use of land for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations.
B.
Establishment; membership. Pursuant to the Village Law, the Mayor, subject to the approval of the Village Board, shall appoint a Zoning Board of Appeals consisting of five members and shall designate its Chairman. The Board of Trustees shall 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 Village Board.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
C.
Term of appointment; vacancies; removal of members.
(1)
Of those members of the Board holding office on the first day of January 1992, the Village Board of Trustees shall appoint one member who 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 the first day of January 1992. Their successors shall be appointed for the term of five years from and after the expiration of the term of their predecessors in office.
(2)
If a vacancy shall occur otherwise than by expiration of term, the Mayor shall appoint the new member for the unexpired term.
(3)
Removal of members. The Mayor shall have the power to remove, after public hearing, any member of the Zoning Board of Appeals for cause. Any Zoning Board of Appeals member may be removed for noncompliance with minimum requirements relating to meeting attendance and training as established by the Village Board of Trustees by local law.
(4)
The terms of office for the members of the Zoning Board of Appeals shall commence on January 1 of the first year of the term of office to which the member was appointed and shall end on December 31 of the last year of the term of office to which the member was appointed.
[Added 9-9-2008 by L.L. No. 4-2008]
D.
Alternate members.
[Added at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
(1)
The Village Board of Trustees may, by local law or as a part of the local law creating the Zoning Board of Appeals, establish alternate Zoning Board of Appeals member positions for purposes of substituting for a member in the event such member is unable to participate because of a conflict of interest. Alternate members of the Zoning Board of Appeals shall be appointed by the Mayor, subject to the approval of the Board of Trustees, for terms established by the Village Board of Trustees.
(2)
The Chairperson of the Zoning Board of Appeals may designate an alternate member to substitute for a member when such member is unable to participate because of a conflict of interest on an application or matter before the board. When so designated, the alternate member shall possess all the powers and responsibilities of such member of the Board. Such designation shall be entered into the minutes of the initial Zoning Board of Appeals meeting at which the substitution is made.
(3)
All provisions of this section relating to Zoning Board of Appeals member training and continuing education, attendance, conflict of interest, compensation, eligibility, vacancy in office, removal, and service on other boards, shall also apply to alternate members.
E.
Assistance to Board of Appeals. The Board of Appeals shall have the authority to call upon any department, agency or employee of the Village for such assistance as shall be deemed necessary and as shall be authorized by the Village Board of Trustees. Such department, agency or employee may be reimbursed for any expenses incurred as a result of such assistance.
F.
Rules of procedure; bylaws; forms. The Board of Appeals shall have the power to make, adopt and promulgate such written rules or procedures, bylaws and forms as it may deem necessary for the proper execution of its 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 ordinance of the Village of Valatie. Such rules, bylaws and forms, and any subsequent amendments or supplements thereto, shall be submitted to the Village Board by the Board of Appeals for approval and filing for public view. The Village Board shall move to approve, reject or modify such rules, bylaws and forms within 30 days after submission. Failure of the Village Board to so move shall constitute approval thereof.
G.
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. The Chairman, or in his absence the Acting Chairman, may administer oaths and compel the attendance of witnesses. All meetings of such Board shall be open to the public.
H.
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 Village Clerk and shall be a public record.
I.
Referrals to Planning Board. At least 15 days before the date of a hearing held in connection with any appeal or application submitted to the Board of Appeals, 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 hearings. The failure of the Planning Board to submit such report shall be interpreted as a favorable opinion for the appeal or application.
[Amended 11-13-2001 by L.L. No. 5-2001]
§ 345-42 Public notice and hearing.
[Amended 11-13-2001 by L.L. No. 5-2001; at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
A.
Hearing on appeal. The 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 Village 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.
B.
Notice to County Planning Agency. At least five days before such hearing, the Board of Appeals shall mail notices thereof to the parties and to the County Planning Agency 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 Subdivision 1 of § 239-m of the General Municipal Law.
§ 345-43 Appeals.
The jurisdiction of the Board of Appeals shall be appellate only and shall be limited to hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation or determination made by the Code Enforcement Official. The concurring vote of a majority of the members of the Board of Appeals shall be necessary to reverse any order, requirement, decision or determination of the Code Enforcement Official or to grant a use variance or area variance. Such appeal may be taken by any person aggrieved, or by an officer, department, board or bureau of the Village.
A.
Time for appeal. An appeal shall be taken within 60 days after the filing in the Village Clerk's office of any order, requirement, decision, interpretation or determination of the Code Enforcement Official by filing with the Code Enforcement Official and the Secretary of the Board of Appeals a notice of appeal, specifying the grounds thereof and the relief sought and paying a fee in an amount established by resolution of the Board of Trustees. The Code Enforcement Official shall forthwith transmit to the Board of Appeals all the papers constituting the record upon which the action appealed from was taken.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
B.
Determination of completeness. Upon receipt of an appeal, the Chairman of the Board of Appeals shall review the application and papers submitted by the applicant in support of the appeal for completeness. If the Chairman of the Board of Appeals makes a determination of completeness, it will schedule the appeal for a public hearing. If the Chairman of the Board of Appeals determines the application or papers to be incomplete, the application shall not be scheduled for a public hearing until such time as the Chairman of the Board of Appeals makes a determination of completeness. If the Chairman of the Board of Appeals fails to make a determination of completeness for two consecutive regularly scheduled meetings after the filing of the appeal, the applicant may petition the Zoning Board of Appeals to accept the application as complete. In the event that the applicant fails to do so at least 10 days prior to the third consecutive meeting of the Board of Appeals, the application shall be deemed abandoned.
[Amended 11-13-2001 by L.L. No. 5-2001]
C.
An appeal stays all proceedings in furtherance of the action appealed from, unless the Code Enforcement Official certifies to the Board of Appeals, after 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 Code Enforcement Official and on due cause shown.
D.
Following public notice and hearing, the 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 power of the Code Enforcement Official. If the action by the Board of Appeals is to reverse the action of the Code Enforcement Official in whole, the filing fee shall be refunded to the appellant. The Board of Appeals shall decide the same within 62 days following the final hearing.
§ 345-44 Use variances.
The Board of Appeals, on appeal from the decision or determination of the administrative officer charged with the enforcement of this chapter, shall have the power to grant use variances, as defined herein.[1]
A.
All applications for variances shall be filed with the Secretary to the Board of Appeals, in writing, shall be made in a form required by the Board of Appeals and shall be accompanied by payment of a filing fee in an amount established by resolution of the Board of Trustees and a plot plan, drawn to scale and accurately dimensioned, showing the location of all existing and proposed buildings and structures on the lot and stating the area of the lot.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
B.
Any variance which is not exercised within one year from the date of issuance is hereby declared to be revoked without further hearing by the Board of Appeals.
C.
No such use variance shall be granted by the Board of Appeals 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)
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)
The requested use variance, if granted, will not alter the essential character of the neighborhood; and
(4)
The alleged hardship has not been self-created.
D.
The Board of Appeals, in the granting of use variances, shall grant the minimum variance that it shall deem necessary and adequate to address the unnecessary hardship proved 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.
E.
Imposition of conditions. The Board of Appeals shall, in the granting of use variances, 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 this chapter, and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.
§ 345-45 Area variances.
The Board of Appeals shall have the power, upon an appeal from a decision or determination of the Code Enforcement Official, to grant area variances as defined herein.[1]
A.
Criteria for granting area variances. In making its determination, the 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 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; and
(5)
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.
B.
Scope of area variance. The Board of Appeals, in 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.
C.
Imposition of conditions. The Board of Appeals shall, in granting of both use variances and area variances, 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 this chapter, and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.
§ 345-46 Special use permits.
A.
The Board of Appeals shall have the power, after public notice and hearing, to grant special use permits for the conditional uses specified in this chapter.
B.
All applications for special use permits shall be filed with the Secretary to the Board of Appeals, shall be made in a form required by the Board and shall be accompanied by payment of a filing fee in an amount established by resolution of the Board of Trustees, and a plot plan, drawn to scale, accurately dimensioned and stating the area of the lot, as required in § 345-27.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
C.
Whenever the Board of Appeals grants a special use permit, appropriate conditions and safeguards and/or time limitations may be attached thereto.
D.
Any special use permit which is not exercised within one year from the date of issuance is hereby declared to be revoked without further hearing by the Board of Appeals.
§ 345-47 Relief from decisions.
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 of the State of New York. Such proceeding shall be governed by the provisions of Article 78 of the Civil Practice Law and Rules, except that it must be instituted as therein provided within 30 days after the filing of a decision in the office of the Village Clerk.