Town of Chester Zoning Ordinance

ARTICLE 10 - ZONING BOARD OF APPEALS

Section 10.01 Membership, Terms of Office.

The Zoning Board of Appeals shall consist of five (5) members, each of whom shall be a resident of the Town of Chester. Members of the Board and the chairperson thereof shall be appointed by the Town Board for staggered five year terms of office, and appointment, succession, removal and filling of vacancies shall be as provided in Chapter 62, Article 16, Section 267(4) and (5) of the Consolidated Laws of the State of New York, as amended. The Town Board shall also appoint a legal counsel and clerk-secretary to the Board and shall provide an office and/or a meeting room for the Board.

Section 10.02 Organization and Procedure.

A. The Zoning Board of Appeals shall hold its meetings, organize and adopt rules of procedure in accordance with the provisions of this Local Law and said Section 267.

B. Meetings shall be held at the call of the chairperson and at such other times as the Zoning Board of Appeals may determine. Meetings shall be held at the said Board's office or at locations convenient and accessible to property owners whose appeals are under consideration by the said Board.

C. The chairperson, or in his or her absence the acting chairperson, may administer oaths and compel the attendance of witnesses. All meetings of the Zoning Board of Appeals shall be open to the public.

D. The Zoning Board of Appeals shall keep minutes of proceedings, showing the vote of each member upon each question or, if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be filed in the offices of the said Board and the Town Clerk within five business days and shall be a public record. All actions by the Zoning Board of Appeals shall be by resolution.

E. The Zoning Board of Appeals may request information or assistance from any officer, agency or department of the Town, and it shall be the duty of such officer, agency or department to furnish such information or assistance as may reasonably be required.

Section 10.04 Powers of the Zoning Board of Appeals.

A. Unless otherwise provided by this Local Law, the jurisdiction of the Zoning 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 administrative official charged with the enforcement of this Local Law. 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 any such administrative official, or to grant a use variance or area variance. Such appeal may be taken by any person aggrieved, or by any officer, department, board or bureau of the Town.

B. The Zoning Board of Appeals is empowered to:

1. Grant use and area variances from the strict application of the provisions of this Local Law pursuant to the standards hereinafter set forth.

2. Hear appeals from decisions of the Zoning Administrator as provided in Town Law.

Section 10.05 Appeals.

A. Appeals shall be taken within sixty (60) days after the filing of any order, requirement, decision, interpretation or determination of the administrative official charged with the enforcement of this Local Law by filing with such administrative official, and with the Board of Appeals a notice of appeal specifying the grounds thereof and the relief sought. The administrative official from whom the appeal is taken shall forthwith transmit to the Board of Appeals all the papers constituting the record upon which the action appealed from was taken.

B. A processing and advertising fee in cash or check payable to the Town of Chester in an amount established by the Town Board shall accompany such application for appeal.

C. In accordance with General Municipal Law §239-m, the Board of Appeals shall furnish the Warren County Planning Board with a full statement of the following proposed actions for its review and recommendation. This requirement shall apply to applications within five hundred feet (500’) of (i) the boundary of any City, Village or Town; (ii) the boundary of any existing or proposed County or State park or any other recreation area; (iii) the right-of-way of any existing or proposed County or State parkway, thruway, expressway, road or highway; (iv) the existing or proposed right-of-way of any stream or drainage channel owned by the County or for which the County has established channel lines; (v) the existing or proposed boundary of any County or State owned land on which a public building or institution is situated; or (vi) the boundary of a farm operation located in an agricultural district, as defined by Article 25-AA of the Agriculture and Markets Law (except for the granting of area variances). Within thirty (30) days after receipt of a full statement of the referred matter, the Warren County Planning Board shall report its recommendations to the Board of Appeals. If the County fails to report within thirty (30) days, the Board of Appeals may act without such report unless it is received at least two (2) days prior to final action by the Board of Appeals. If the County recommends modification or disapproval of a proposed action, the Board of Appeals shall not act contrary to such recommendation except by a vote of a majority plus one of all members and after the adoption of a Resolution fully setting forth the reasons of such contrary action. Within thirty (30) days after final action by the Board of Appeals, a report of its final action shall be filed with the Warren County Planning Board. The referral of projects under this section may be subject to modification as may be mutually agreed upon by the Town Board and the Warren County Board of Supervisors..

Section 10.06 Appeals: Hearing And Decision.

A. 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 Town and posted at the Town Hall at least five (5) 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 of Appeals prior to the hearing of such appeal. Upon the hearing, any party may appear in person, or by agent or attorney.

B. The Board of Appeals shall decide upon the appeal within sixty-two (62) days after the conduct of the hearing, which time period may be extended by mutual consent of the applicant and the Board.

C. The decision of the Board of Appeals on the appeal shall be filed in the office of the Town Clerk within five (5) business days after the day such decision is rendered, and a copy thereof mailed to the applicant.

D. At least five (5) days before such hearing, the Board of Appeals shall mail notices to the parties; to the Regional State Park Commission having jurisdiction over any State Park or Parkway within five hundred (500) feet of the property affected by such appeal; and to the county, metropolitan or regional planning agency, as required by Section 239-m of the General Municipal Law, which notice shall be accompanied by a full statement of the matter under consideration under consideration, as defined in subdivision one of Section 239-m of the General Municipal Law.

E. The Board of Appeals shall comply with the provisions of the State Environmental Quality Review Act, under Article 8 of the Environmental Conservation Law and its implementing regulations.

Section 10.07 Rehearing.

A motion for the 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 shall be 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 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.

Section 10.08 Variances.

A. Application For Variance

1. Variances shall be instituted by filing an application with the Zoning Administrator on behalf of the Zoning Board of Appeals.

2. A variance application provided by the Zoning Administrator shall be used by the applicant, plus any additional information required by the Board of Appeals as necessary to make its findings according to this Section. The Zoning Administrator shall include with the variance application the Variance Checklist as provided by the Board of Appeals.

3. The applicant shall supply the Zoning Board of Appeals with the following:

(a) A legal description of the property.

(b) A map showing the property and all properties within a radius of 500 feet of the exterior boundaries thereof.

(d) A long form EAF or short form EAF if the proposal is subject to the State Environmental Quality Review Act (SEQRA).

(e) Other drawings or information considered necessary by the Zoning Board of Appeals to make an informed decision.

B. Use Variances

1. The Zoning Board of Appeals, upon appeal from the decision or determination of the administrative official charged with the enforcement of this Local Law shall have the power to grant use variances. Use variances are defined as 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 this Zoning Local Law.

2. No such use variance shall be granted by the Board of Appeals without a showing by the applicant that this Zoning Local Law has caused unnecessary hardship. In order to prove such unnecessary hardship the applicant shall demonstrate to the Board of Appeals:

(a) that for each and every permitted use under this Zoning Local Law for the particular district where the property is located the applicant cannot realize a reasonable return, provided that 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 neighborhood and the health, safety and welfare of the community;

(d) that the alleged hardship has not been self-created.

3. 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 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 shall have the power, upon an appeal from a decision or determination of the administrative official charged with the enforcement of this Zoning Local Law to grant area variances. Area variances are defined as 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 this Zoning Local Law.

2. 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:

(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;

(d) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and

(e) 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.

3. The Board of Appeals in the granting of area variances shall grant the minimum variance that it shall deem necessary 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 Board of Appeals in the granting of both use variances and area variances shall have the authority to impose such reasonable conditions and restrictions as are directly related and incidental to the proposed use of the property. Such conditions shall be consistent with the spirit and intent of the Zoning Local Law and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.

E. Jurisdiction of Adirondack Park Agency.

1. The following variances shall be subject to Agency review pursuant to section 808(3) of the Adirondack Park Agency Act, if outside Hamlet areas:

(a) Variances from local shoreline restrictions;

(b) Variances from the local controls governing intensity of development, such as minimum lot areas;

(c) Variances from use restrictions which would allow a use other than those on the classification of compatible use lists in the Adirondack Park Agency Act for the official map land use area in which it would be located; and

(d) Any other variances which involve the provisions of the land use and development plan except variances for front, side or rear yards not involving shoreline.

In reviewing applications for variances which are subject to Agency review, the Board of Appeals shall consider the criteria in Section 808.3 of the Adirondack Park Agency Act in addition to the criteria for variance approval set forth above.

2. The Zoning Board of Appeals shall advise the applicant of the Adirondack Park Agency's review authority as set forth herein and that the variance does not take effect until thirty days from the Agency’s receipt of the Board’s complete record of decision as noted below. The Board shall notify the Adirondack Park Agency, by certified mail, of such decision. The Agency shall be provided a full record of the decision, including at a minimum, a copy of the current recorded deed, the parcel's tax map number, all maps, diagrams and pictures, written statements, minutes of the Zoning Board of Appeals meeting and a copy of the Board decision, including any conditions. Said decision of the Board shall not be final until 30 days after the Agency receives a full record of the decision. If, within such thirty (30) day period, the Agency determines that such variance involves the provisions of the land use and development plan including any shoreline restriction and was not based upon the appropriate statutory basis, the Agency may reverse the local determination to grant the variance.