Woodstock City Zoning Code
ARTICLE XI
Zoning Board of Appeals ZBA
§ 260-102 Creation, appointment and organization.
[Amended 11-18-2008 by L.L. No. 2-2008]
A Zoning Board of Appeals is hereby created and maintained in accordance with § 267 of the Town Law. Said Board shall consist of five members appointed by the Town Board for staggered terms of five years. One or more alternates to the Zoning Board of Appeals may be appointed for terms determined by the Town Board. In addition to said alternates' duties as specified by Town Law, alternates shall serve at meetings in which a quorum would not otherwise exist. Any member is subject to removal by the Town Board for cause after public hearing. The Town Board shall annually designate the Chairperson of the Zoning Board of Appeals and shall designate its Secretary. The Zoning Board of Appeals shall elect from its membership a Vice Chairperson to serve in the absence of the Chairperson and may further designate a member as Acting Chairperson for a meeting in which both the Chairperson and the Vice Chairperson are absent. The Zoning Board of Appeals may prescribe reasonable rules, in addition to those provided herein, for the conduct of its affairs. All members and alternate members of the Zoning Board of Appeals shall complete the training required by Subdivision 7-a of § 267 of the Town Law.
§ 260-103 Powers and duties.
[Amended 11-6-2012 by L.L. No. 4-2012; 7-3-2013 by L.L. No. 1-2013]
The jurisdiction of the Zoning Board of Appeals shall be appellate only and shall be limited to hearing and deciding on appeals from and reviewing any written order, requirement, decision, interpretation or determination made by the Zoning Enforcement Officer charged with the enforcement of the chapter. The Zoning Board of Appeals is without authority to act except on appeal from a specific action of said Zoning Enforcement Officer in a specific case involving a specific property. An officer, department, board or commission of the Town, or any person or entity jointly or severally aggrieved may make such appeal. Notwithstanding that the Zoning Enforcement Officer is an officer of the Town, said officer is logically precluded from appealing his or her own determination. Notwithstanding the above provision, upon a determination by the Planning Board that a plat or site plan contains one or more features which do not comply with the dimensional requirements of this chapter, application may be made to the Zoning Board of Appeals for an area variance without the necessity of a decision or determination by the Zoning Enforcement Officer.
A.
Appeals and interpretations. The Zoning Board of Appeals is without authority to render an advisory opinion concerning the meaning of any provision of this chapter or its application to a particular set of circumstances except upon appeal from any order, requirement, decision or determination of the Zoning Enforcement Officer involving the enforcement or interpretation of this chapter or of any condition or requirement specified or made hereunder. The Zoning 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, interpretation or determination as in its opinion ought to have been made in the matter by the Zoning Enforcement Officer and to that end shall have all the powers of said officer.
B.
Area variances. The Zoning Board of Appeals, on appeal in specific cases, shall have the power to grant area variances, as defined in § 260-123 herein, from the terms of this chapter. Such appeal shall be from a decision or determination of the Zoning Enforcement Officer or, where a proposed plat or site plan contains one or more features which do not comply with dimensional requirements of this chapter, application may be made to the Zoning Board of Appeals without the necessity of a decision or determination of the Zoning Enforcement Officer. Where such application involves a proposed subdivision, the Zoning Board of Appeals shall request the Woodstock Planning Board to provide a written recommendation concerning the area variance sought.
(1)
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 the following five factors in balancing these interests:
(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 method, feasible for the applicant to pursue, other than an area variance.
(c)
Whether the requested area variance is substantial.
(d)
Whether the proposed area variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.
(e)
Whether the alleged difficulty was self-created. (The consideration of whether the alleged difficulty was self-created shall be relevant to the decision of the Zoning Board of Appeals but shall not necessarily preclude the granting of the area variance.)
(2)
The Zoning Board of Appeals, in the 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.
Use variances. The Zoning Board of Appeals, on appeal in specific cases from a decision or determination of the Zoning Enforcement Officer, shall have the power to grant use variances, as defined in § 260-123 herein, from the terms of this chapter.
(1)
No such use variance shall be granted 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 Zoning Board of Appeals that, for each and every permitted use under this chapter for the particular district where the property is located, all of the following factors exist:
(a)
The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence.
(b)
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)
The requested use variance, if granted, will not alter the essential character of the neighborhood.
(d)
The alleged hardship has not been self-created.
(2)
The Zoning 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 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.
D.
Imposition of conditions. The Zoning Board of Appeals shall, in the granting of both area variances and 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 this chapter and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.
E.
Reimbursable costs. Reasonable costs incurred by the Zoning Board of Appeals for private consultation fees, fees for technical and engineering services, legal fees, or other expenses in connection with its consideration of applications for the granting of area and/or use variances shall be charged to the applicant. Such reimbursable costs shall be in addition to the fee required in § 260-104B below. The Zoning Board of Appeals shall make a reasonable estimate of the amount of expenses that it expects to incur during the course of each application for an area and/or use variance. The applicant shall deposit the amount so determined by the Zoning Board of Appeals in escrow with the Town Clerk prior to the Zoning Board of Appeal's commencing any review of the application. If the amount so deposited is exhausted or diminished to the point that the Zoning Board of Appeals determines that the remaining amount will not be sufficient to complete the review of the application, then the Zoning Board of Appeals shall notify the applicant of the additional amount that must be deposited with the Town Clerk. If the applicant fails to replenish the escrow account or there are unpaid amounts for which the applicant is responsible pursuant to this provision, the Zoning Board of Appeals, at its discretion, may cease review of the application until such amounts are paid or deny the application. In no event, however, shall any variance approval be made until all such sums have been paid in full.
§ 260-104 Procedure.
The Zoning Board of Appeals shall act in strict accordance with the procedures specified in § 267-a of the Town Law and this chapter.
A.
Meetings and keeping of records. All meetings of the Zoning Board of Appeals shall be held after proper notice at the call of the Chairperson and at such other times as the Board may determine and shall be open to the public to the extent provided in Article 7 of the Public Officers Law. A quorum shall consist of three members. The Zoning Board of Appeals shall keep minutes of its proceedings.
B.
Time of appeal, application and fee. An appeal to the Zoning Board of Appeals shall be filed within 60 calendar days of the issuance of any order, requirement, decision or determination of the Zoning Enforcement Officer by filing with said Officer and with the Zoning Board of Appeals a notice of appeal, specifying the grounds thereof, the relief sought and the specific provision or provisions of this chapter that are involved. Such appeal shall be in writing on forms prescribed by the Zoning Board of Appeals and shall be accompanied by the applicable fee in accordance with the fee schedule established and annually reviewed by the Woodstock Town Board. Applications originating directly from site plan review or subdivision review shall be filed with the same persons on the same forms as prescribed above. The Zoning Enforcement Officer or the Woodstock Planning Board, as may be applicable, shall forthwith transmit to the Zoning Board of Appeals all papers constituting the record upon which the action appealed from was taken.
[Amended 7-3-2013 by L.L. No. 1-2013]
C.
Hearing, notice and publication. The Zoning Board of Appeals shall fix a reasonable time and place for a public hearing, of which hearing date the applicant shall be given at least five calendar days' notice and at which hearing he or she shall appear in person or by duly authorized agent or attorney. Such authorization shall be in writing. The Chairperson or, in his or her absence, the Vice Chairperson or the Acting Chairperson may administer oaths and compel the attendance of witnesses.
(1)
At least five calendar days prior to the date thereof, the Zoning Board of Appeals shall additionally provide notice of the public hearing as follows:
(a)
By publishing a legal notice in the official newspaper or newspapers of the Town, as designated by the Town Board. Such notice shall give sufficient information as will inform any interested person of the nature of the application and of the land which is involved.
(b)
By mailing a copy of such notice to the owners of all properties abutting the boundaries of the land involved in the application. The names of owners notified shall be taken as such appear on the last completed tax roll for the Town.
(c)
By transmitting a copy of such notice to the Woodstock Planning Board.
(d)
By transmitting a copy of any application together with a copy of the official notice of such public hearing to the municipal clerk of any municipality or municipalities which lie within 500 feet of the boundary of the land involved in the application and to the regional state park commission having jurisdiction over any state park or parkway within 500 feet of the property affected by such appeal.
(e)
By transmitting, as required by § 239-m of the General Municipal Law, to the Ulster County Planning Board a copy of the official notice of such public hearing together with a copy of any application involving property located within 500 feet of the following:
[1]
A municipal boundary.
[2]
A boundary of any existing or proposed county or state park or other recreation area.
[3]
A right-of-way of any existing or proposed county or state road, highway, parkway, thruway or expressway.
[4]
An existing or proposed right-of-way of any stream or drainage channel owned by Ulster County, or for which the county has established channel lines.
[5]
An existing or proposed boundary of any county- or state-owned land on which a public building or institution is situated.
[6]
A boundary of a farm operation located in an agricultural district as defined by Article 25-AA of the Agriculture and Markets Law (except for area variances).
(2)
No action shall be taken by the Zoning Board of Appeals on such application until an advisory recommendation has been received from the Ulster County Planning Board or 30 calendar days have elapsed since the County Planning Board received said transmittal.
D.
Stay upon appeal. An appeal shall stay all proceedings in furtherance of the action appealed from unless the Zoning Enforcement Officer from whom the appeal is taken certifies to the Zoning Board of Appeals, after the notice of appeal shall have been filed with said Officer, 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 Zoning Board of Appeals or by a court of record on application, on notice to the Zoning Enforcement Officer and on due cause shown.
E.
Environmental review. The Zoning Board of Appeals shall comply with the provisions of the New York State Environmental Quality Review Act (SEQRA) under Article 8 of the Environmental Conservation Law and its implementing regulations as codified in Title 6, Part 617, of the New York Codes, Rules and Regulations (NYCRR), and with the provisions of Local Law No. 1 of the Year 1990, the Town of Woodstock Environmental Quality Review (TWEQR) Law.[1]
F.
Decisions and voting requirements.
[Amended 11-18-2008 by L.L. No. 2-2008; 7-3-2013 by L.L. No. 1-2013]
(1)
The Zoning Board of Appeals shall decide upon the appeal within 62 calendar days after the close of the public hearing of said appeal, except that 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.
(2)
Every decision shall fully set forth the circumstances of the case and contain a full record of the findings on which the decision is based, except that the Zoning Board of Appeals, in reaching its decision, may not rely on reports received after the close of the public hearing nor on evidence not adduced at said hearing. Every decision shall be by resolution of the Board and shall show the vote of each member or, if a member is absent or fails to vote, indicating such fact.
(3)
In order to reverse an order, requirement, decision, interpretation, or determination made by the Zoning Enforcement Officer, or to authorize a variance, the concurring vote of at least three members shall be required, except that the concurring vote of at least four members shall be required in order to approve an application where the Ulster County Planning Board has recommended disapproval or modification.
(4)
If, for whatever reason (e.g., tie vote, no timely vote), there is no clear approval that conforms to the provisions of this subdivision, such result shall be deemed a denial of the application.
G.
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 after the day such action is taken and shall be a public record. A copy of the filed decision shall be mailed to the applicant. The Zoning Board of Appeals shall also notify the Zoning Enforcement Officer, the Woodstock Planning Board, and any affected municipality which was given notice of a public hearing of the final action. If applicable, a report on the action taken shall also be filed with the Ulster County Planning Board within 30 calendar days of the filing of such report in the office of the Town Clerk.
H.
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 reheard 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. Such rehearing is subject to the same notice provisions as an original hearing. Upon such rehearing, the Board may reverse, modify or annul its original order, decision or determination upon the 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 reheard order, decision or determination will not be prejudiced thereby.
§ 260-105 Expiration of approval.
Provided that no time limitation has been set as a condition of the granting of a variance, the variance shall run with the land, except that, unless a building permit has been issued when applicable and substantial work has been done in execution of a variance within 12 months from the date of the filing of the decision granting such variance in the office of the Town Clerk, the variance shall become null and void without further hearing by the Zoning Board of Appeals.
§ 260-106 Strict construction.
In rendering its determination on any application, the Zoning Board of Appeals shall strictly construe all provisions of this chapter, avoiding extension of those provisions by implication, and shall resolve any ambiguity in the language of this chapter in favor of the property owner and against the municipality, provided that such determination shall be consistent with the legislative intent and general objectives of this chapter. If the procedural requirements set forth in this chapter have been substantially observed, no applicant or appellant shall be deprived of the right of application or appeal.
§ 260-107 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 review by a proceeding under Article 78 of the Civil Practice Law and Rules (CPLR) of the State of New York. Such proceeding shall be instituted within 30 calendar days after the filing of a decision of the Zoning Board of Appeals in the office of the Town Clerk.