The Zoning Board of Appeals shall consist of five members. Town Board members are ineligible for membership on the Zoning Board of Appeals.

The Board of Appeals shall have the duties, rights, powers, and functions conferred upon it by § 267 of Article 16 of the Town Law and as per § 161-39 and any other provisions of law or ordinance applicable thereto.

The terms of office of the members of the Zoning Board of Appeals and the manner of their appointment shall be in accordance with the provisions of the Town Law.

Alternate members. Alternate members of the Zoning Board of Appeals may be appointed by the Town Board pursuant to Chapter 4 of the Town of Waterford Code.

Vacancies occurring in the Zoning Board of Appeals shall be filled for such unexpired period only.

Removal of members. The Town Board 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 Town Board by local law.

Officers.

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 Board 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.

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.

Assistance to Zoning Board of Appeals. Such Board shall have the authority to call upon any department, agency, or employee of the Town for 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.

Quorum and voting.

Appeals. The Zoning Board of Appeals shall hear and decide appeals from and review any order, requirement, decision or determination made by an administrative official charged with the enforcement of any ordinance or law adopted pursuant to Article 16 of the Town Law. The Zoning Board of Appeals may reverse, 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 administrative official charged with the enforcement of such local law, and to that end shall have all the powers of the administrative official from whose order, requirement, decision, interpretation or determination the appeal is taken.

Filing of appeals. An appeal must be made within 60 days of the action of the administrative official appealed from. The applicant must file a notice of appeal with the administrative official from whom the appeal is taken and with the Secretary of the Board of Appeals. Such notice shall be made on the form provided for that purpose. The administrative official from whom the appeal is taken shall be responsible, at the direction of the Board, for providing any applicant with the proper forms and for instructing the parties concerned on the proper manner for completing and filing said forms. All information required thereon shall be complete before an appeal is considered filed. Seven copies of the proper appeal form shall be filed with the Board. The administrative official from whom the appeal is taken shall transmit to the Zoning Board of Appeals all papers constituting the record upon which the action appealed from was taken.

A fee in the amount as established by the Town Board shall be chargeable and shall accompany all applications or petitions of appeal. Any fee so paid shall be refunded if the person bringing the appeal shall obtain the relief sought; provided, however, that this refund provision shall not be applicable where the issue is a variance or special permit application.

Stay upon appeal. An appeal shall stay all proceedings in furtherance of the action appealed from, unless the administrative official charged with the enforcement of the local law from whom the appeal is taken certifies to the Zoning Board of Appeals, after the notice of appeal shall have been filed with the administrative official, 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 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.

Amendments to appeals. Appeals may be amended 15 days prior to the public hearing thereon.

Notice to applicant. The applicant shall be notified by letter within five days of the hearing on his application or of his failure to complete his application properly. See also § 161-41(A).

Interpretation. On appeal from a determination of the Zoning Inspector/Building Inspector to hear and decide on questions where it is alleged that there is an error in any order, requirement, decision, or determination made by the Zoning Inspector/Building Inspector involving the interpretation of any provision of this chapter.

Variance. The Zoning Board of Appeals is authorized to issue use and area variances. The Zoning Board of Appeals shall prescribe appropriate conditions and safeguards to carry out the requirements of this subsection and shall not grant any variance unless it shall make a finding of fact based upon the evidence as presented to it in each specific case that the criteria of § 161-41D and E have been met.

When required. Public hearings shall be held on all requests for variances or special permits. The Zoning Board of Appeals shall give public notice of any hearing by publication in a paper of general circulation in the Town at least five days prior to the date established for the hearing. The cost of sending or publishing any notices related to an appeal, or a reasonable fee related thereto, shall be borne by the appealing party, and shall be paid to the Board prior to the hearing of such appeal. The Zoning Board of Appeals shall also notice adjacent municipalities at least 10 days prior to when a hearing is held related to the granting of a use variance on a property that is within 500 feet of an adjacent municipality as per GMU § 239-nn.

Time of hearing. The Board of Appeals shall schedule a hearing on all appeals or applications within 45 days of the filing of the appeal or application.

Notices.

Form of notice. Such notice shall state the location of the building or lot, the general nature of the question involved, the date, time and place of the hearing and the nature of the relief sought.

The order of business at a hearing shall be as follows:

General rules. Any party may appear in person or by agent or by attorney.

Administering oaths; witnesses. The Chairman or, in his absence, the Secretary may administer oaths and compel the attendance of witnesses.

Rehearing.

Zoning referrals. All matters requiring referral as specified by any ordinance or law enacted under Article 16 of the Town Law shall be so referred to the proper agency for its recommendations. Within 30 days, or as specified in the particular ordinance or law, after receipt of a full statement of such referred matter, said agency shall report its recommendations thereon to the Board with a full statement of the reasons for such recommendations. If such agency fails to respond within the prescribed time, the Board may act without such report. The Board shall not act contrary to any of said agency's recommendations without first fully setting forth in the Official Record the reasons for such contrary action. The Chairman shall read all such reports at the hearing on the matter under review.

County zoning referrals.

SEQRA. The Zoning Board of Appeals shall comply with the provisions of the New York State Environmental Quality Review Act.[1]

Time of decisions. Decisions by the Board shall be made not later than 62 days from the date of the close of the final hearing. The time within which the Zoning Board of Appeals must render its decision may be extended by mutual consent of the applicant and the Board.

Voting requirements. All matters shall be decided by roll call vote. Every motion or resolution of the board of appeals shall require for its adoption the affirmative vote of the majority of all the members of the board of appeals 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.

Form of decision. The final decision on any matter before the Board shall be made by written order signed by the Chairman or Secretary. Such decision shall state the findings of fact which were the basis for the Board's determination. After such determination, the Board may reverse or affirm, wholly or partly, or may modify the order or requirements of the administrative official appealed from. The decision shall also state any conditions and safeguards necessary to protect the public interest.

Basis for decisions. The Board, in reaching said decision, shall be guided by standards specified in the applicable ordinance or law as well as by the community goals and policies as specified in a comprehensive plan, if any, and by the findings of the Board in each case.

Area variance. 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 Board shall also consider:

Use variance. The Zoning Board of Appeals, on appeal from the decision or determination of the administrative official charged with the enforcement of such local law or ordinance, shall have the power to grant use variances. 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 this Zoning Chapter for the particular district where the property is located:

Imposition of conditions. The Zoning Board of Appeals shall, in the granting of both use 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 or other local law or ordinance and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.

Conflicts with other laws or regulations. In reviewing an application on any matter, the standards in any applicable local law or ordinance or state statute shall take precedence over the standards of these rules whenever a conflict occurs. In all other instances, the more restrictive rule shall apply.

Expiration of permits. Unless otherwise specified, any order or decision of the Board for a permitted use shall expire if a building or occupancy permit for the use is not obtained by the applicant within 90 days from the date of the decision; however, the Board may extend this time an additional 90 days.

Decisions on rehearings. After a rehearing, other than one based on a substantial change in conditions, the original order may be changed only by a concurring vote of all the members then present, but not less than a majority of the Board, and in conformance with § 161-41H(1).

Filing of decisions. Decisions of the Board shall be filed in the office of the Town Clerk within five business days after the day such decision is rendered and shall be a public record. The date of filing of each decision shall be entered in the official records and minutes of the Board.

Notice of decision. Copies of the decision shall be forwarded to the applicant, the Municipal Planning Board, and the county planning agency when referral to the county planning agency was required in the particular case.

Certification of decision. A certified copy of the Board's decision, including all terms and conditions, shall be transmitted to the municipal administrative official and shall be binding upon and observed by him, and he shall fully incorporate such terms and conditions of the same in the permit to the applicant or appellant whenever a permit is authorized by the Board.