Rules and Procedures for Zoning Board of Appeals

RULES AND PROCEDURES
FOR
ZONING BOARD OF 
APPEALS
TOWN OF BEEKMANTOWN

Zoning Board of Appeals

Town of Beekmantown, Clinton County, New York

SECTION 1
GENERAL GOVERNING RULES

1.1              The Zoning Board of Appeals of the Town of Beekmantown shall be governed by the provisions of all applicable state statutes, local laws, ordinances, and these roles.

1.2              The term "Board" as used in these rules shall mean the duty appointed five (5) members of the Zoning Board of Appeals of the Town of Beekmantown and any duly appointed alternate Board members.

1.3              The Board shall become familiar with all duly enacted ordinance and laws of the Town under which it may be expected to act as well as with the applicable state statutes.

1.4              The Board shall become familiar with the community goals, desires, and policies as expressed in the master plan, and grant the minimum relief, which will insure that the goals and policies of the plan are preserved and substantial justice is done.

1.5        Board members shall review the Town Law entitled Code of Ethics.

 

SECTION 2

OFFICERS AND DUTIES

2.1             The Officers of the Board shall consist of a chairperson, and an acting chairperson.

2.2             CHAIRPERSON. The chairperson shall be designated by the Town Board and shall perform all duties required by law, ordinance, and these rules. The chairperson shall also preside at all meetings of the Board. The chairperson shall rule on all points of order and procedure, subject to these rules, unless directed otherwise by a majority of the Board members present. The chairperson shall appoint any committees, if necessary, to carry out the business of the Board. The chairperson's signature shall be the official signature of the Board and shall appear on all decisions of the Board.

2.3             ACTING CHAIRPERSON. The acting chairperson shall have all the powers of the chairperson during the chairperson's absence, disability, or disqualification. The acting chairperson shall be that person who is most senior on the Board and who is present at a meeting when the chairperson is absent or disqualified.

2.4             VACANCIES. Should a vacancy on the Board occur for any reason, the chairperson shall give immediate notice thereof to the Town Clerk

  1. Should the office of chairperson become vacant, the acting chairperson shall provide the notice required in section 2.4 of these rules. The acting chairperson shall handle all duties of the chairperson until such time as the Town Board shall appoint a new chairperson.

2.5 ALTERNATES.

  1. A town board may, by local law or ordinance, or as part of the local law or ordinance 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 resolution of the town board, for terms established by the town board.
  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.

SECTION 3

MEETINGS

3.1         REGULAR MEETINGS. The regular meeting of the Board shall be held on the fourth Wednesday of each month at 7:30 p.m. at the Town Hall with the exception of November and December. There shall be a work session of the Board held at 7:00 p.m. on the same date as the regular meeting.

3.2         ANNUAL MEETING. The annual organizational meeting of the Board shall be held at the last regular meeting of the year.

3.3         SPECIAL MEETINGS. Special meetings of the Board may be called by the chairperson. At least forty-eight (48) hours written notice of the time, place, and business of the meeting shall be given to each member of the Board and to the media, pursuant to Section 104 of the Open Meetings Law.

3.4         The chairperson shall call a special meeting within ten (10) days of receipt of a written request from any three (3) members of the Board; such request shall specify the matters to be considered at the special meeting.

3.5         CANCELLATION OF MEETINGS. Whenever there are no appeals, applications or other business to be transacted at a regular board meeting, the chairperson may dispense with such meeting by notice to all members no less than forty-eight (48) hours prior to the time set for such meeting.

3.6      PROCEEDINGS. The order of business at regular meetings shall be as follows:

  1. Roll Call (ascertainment of a quorum), minutes approved, reading of all public hearings;
  2. Action on held cases;
  3. New business;
  4. Other business;
  5. Adjournment.

    SECTION 4

VOTING

4.1                    QUORUM. A quorum shall consist of three (3) of the five (5) board members including any alternate members substituting for a disqualified or absent board member.

  1. No hearing or meeting of the Board shall be held, nor any action taken, in the absence of a quorum; however, those members present shall be entitled to request the chairperson to call a special meeting to be held on a future date. All subsequent hearings shall be re-advertised in accordance with the requirements of all applicable laws.

4.2                    VOTING. All matters shall be decided by a roll call vote. Decisions on any matter before the Board shall require the affirmative vote of three (3) members of the Board.

  1. A tie vote or affirmative vote by a number less than the required majority shall be considered a disapproval of the application under consideration.
  2. No member of the Board shall sit in a hearing or vote on any matter in which he is personally or financially interested. Said member shall not be counted by the Board in establishing the quorum for such matter.
  3. No member shall vote on the determination of any application requiring a public hearing unless he has attended the public hearings held thereon; however, where such member has familiarized himself with such application by reviewing the established record in the matter, he/she shall be qualified to vote on same.

SECTION 5

APPEALS AND PROCEDURES

5.1         APPEALS. The Board shall review, hear and decide appeals from any order, requirement, decision, or determination made by the Zoning Enforcement Officer charged with the enforcement of any ordinance or local law adopted pursuant to Article 16 of the Town Law. It shall also bear and decide all matters referred to it, upon which it is required to consider or by authority granted to the Board under any other law of the Town or State.

5.2         FILING OF APPEALS. An appeal must be made within sixty (60) days of the filing of the order, decision or interpretation of the administrative official. The applicant must file a notice of appeal/application with the Board Secretary with the form provided for that purpose. The Board Secretary shall be responsible, at the direction of the Board, for providing the applicant with the proper forms for filing said application.

 

SECTION 6 HEARINGS

6.1         TIME OF HEARING. The Board shall schedule a hearing on all appeals or applications within sixty (60) days of its receipt of a complete appeal/application. The decision as to whether or not an appeal/application is complete shall be left at the sole discretion of the Zoning Enforcement Officer.

6.2         NOTICE OF HEARING-ZONING APPEALS. The Board shall give notice of the hearing at least five (5) days prior to the date thereof by publication in the official paper. The Board shall mail notice of the hearing to the parties and other municipalities within five hundred (500) feet of the property affected (if applicable) by the appeal at least five (5) days prior to the hearing.

6.3         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.

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

  1. The chairperson shall give a statement of the case and read correspondence and reports received thereon;
  2. The applicant shall present his case;
  3. Those opposed shall present their arguments;
  4. Rebuttal by both sides;
  5. Close public hearings -deliberation by the Board;
  6. Vote -or continuation for finalization of hearing at another date;
  7. Next appeal -Back to A.;
  8. Adjournment of hearings when all are complete.

6.5         GENERAL RULES. Any party may appear in person or be represented by an agent or attorney with written authorization from the party appealing being presented to the Board.

 

SECTION 7

REFERRALS/SEOR

7.1         ZONING REFERRALS. All matters requiring referral, as specified by any statute, ordinance or local law enacted under Article 16 of the Town Law, shall be referred to the proper agency for its recommendations. Within sixty (60) days (or as specified in the particular law or ordinance) after receipt 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 agency's recommendations without first fully setting forth in the official record the reasons for such reports at the hearing on the matter under review.

7.2         COUNTY ZONING REFERRALS. Prior to taking action on any application as specified in Section 239-m of the General Municipal Law, the Board shall refer said application to the Clinton County Planning Agency for its consideration. The County Planning Agency shall have thirty (30) days after receipt of said application to file its recommendations/decision with the Board. The Board shall not act contrary to such a modification or disapproval recommendation except by a vote of majority plus one of entire Board for such contrary action. If such a Planning Agency fails to report to the board within said thirty (30) days period, or longer period as may have been agreed upon by the parties, the Board may act without such report.

7.3         SEQRA. The Board shall comply with the requirements of the State Environmental Quality Review Act ("SEQRA") in its review of appeals/applications.

 

SECTION 8 DECISIONS

8.1                   TIME OF DECISIONS. Decisions by the Board shall be made not later than sixty two (62) days from the date of the final hearing.

8.2                   FORM OF DECISIONS. The final decision on any matter before the Board shall be made by written order signed by the chairperson. Such decision shall state the findings of fact, which were the basis for the final determination. After such determination, the Board may reverse or affirm, wholly or partly, or may modify the order or requirement of the administrative official whose action is the subject of appeal. The decision shall also state any conditions and safeguards necessary to protect the public interest.

8.3                   BASIS FOR DECISIONS. The Board, in reaching said decision, shall be guided by standards specified in the applicable ordinance as well as by community goals and policies as specified in a comprehensive plan, if any, and by findings of the Board in each case.

8.4                   FINDINGS OF FACTS FOR USE VARIANCE:

 

The Board shall make the following findings prior to granting a Use Variance for relief from the strict application of the Zoning Law. The applicant must demonstrate to the board of Appeals showing that:

  1. Under the applicable zoning regulation, the applicant is deprived of all economic use or benefit from the property.
  2. The hardship is unique and does not apply to a substantial portion of the district or neighborhood.
  3. The Variance shall not alter the essential character or quality of the neighborhood.
  4. The alleged hardship is not self-created.

All four (4) tests must be met for a Use Variance to be granted and same must meet the intent of the Town Master Plan.

 

8.5     FINDINGS OF FACT FOR TILE AREA VARIANCE

 

When an applicant requests an Area Variance, the Board of Appeals shall balance two (2) elements; the benefit to the applicant from the Variance and the detriment to the health, safety, and welfare of the community or neighborhood that would occur if the Variance would be granted. The provisions set forth five (5) factors for the Board to consider in balancing these interests:

  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 variance.
  2. Whether the benefit sought by the applicant can be achieved by some feasible method other than a Variance.
  3. Whether the requested 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.
  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.

 

An Area Variance shall not include change in the use or density.

 

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 or the period of time such Variance shall be in effect.

 

8.6 FINDINGS –CONTENTS. The finding of the Board and the supporting facts shall be spelled out in detail regardless of whether it is based on evidence submitted or on the personal knowledge of the Board. The Board must ascertain the following:

  1. It has made an intelligent review of the question.
  2. It has considered all of the information or evidence.
  3. It has heard all parties in question.
  4. It has intimate knowledge of the subject under question and it has been taken into account.
  5. It has inspected the parcel in question and from this examination, certain findings were ascertained.

8.7 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.

8.8 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 of the use is not obtained by the applicant within ninety (90) days from the date of the decision; however, the Board may extend this time an additional ninety (90) days.

8.9 FILING OF DECISIONS. Decisions shall be filed in the office of the Town Clerk and shall be made public record. The date of the filing of each decision shall be entered in the official records and minutes of the Board.

8.10     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 is required in the particular use.

8.11     CERTIFICATION OF DECISION. A 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.

SECTION 9

APPEALS

9.1                Applicants desirous of appealing decisions of the Board must appeal by Article 78 proceeding pursuant to the provisions of Section 267-c of the Town Law.

SECTION 10

ADOPTION AND AMENDMENT OF RULES AND REGULATIONS

10.1     ADOPTION. Upon adoption of these rules by the Board, the secretary shall file a copy of these rules with the Town Clerk and they shall be a public record

10.2     AMENDMENT. These rules may be amended by an affirmative vote of not less than five (5) members of the Board Voting on amendments and changes have been presented in written form at a regular or special meeting.

10.3     FILING. All amendments adopted shall be filed in the same manner as provided for the rules in Section 10.1.

AMENDED APRIL 22, 2009