81. Zoning board of appeals. 1. Appointment of members. The mayor or in a city having a city manager, the city manager of any city to which subdivisions twenty-four and twenty-five of section twenty of this chapter are applicable, shall appoint a board of appeals consisting of three or five members as shall be determined by local law or ordinance and shall designate the chairperson thereof. In the absence of the chairperson the board of appeals may designate a member to serve as acting chairperson. The legislative body may provide for compensation to be paid to experts, clerks and a secretary and provide for such other expenses as may be necessary and proper, not exceeding the appropriation made for such purpose.
2. Legislative body members ineligible. No person who is a member of the legislative body of the city shall be eligible for membership on such board of appeals.
3. Terms of members first appointed. In the creation of a new board of appeals, or the reestablishment of terms of an existing board, the appointment of members to the board shall be for terms so fixed that one member's term shall expire at the end of the official year in which such members were initially appointed. The remaining members' terms shall be so fixed that one member's term shall expire at the end of each official year thereafter. At the expiration of each original member's appointment, the replacement member shall be appointed for a term which shall be equal in years to the number of members of the board.
4. Terms of members now in office. Members now holding office for terms which do not expire at the end of the official year shall, upon the expiration of their term, hold office until the end of the official year and their successors shall then be appointed for terms which shall be equal in years to the number of members of the board.
5. Increasing membership. The legislative body may, by local law or ordinance, increase a three member board of appeals to five members. Additional members shall be first appointed for single terms in order that the terms of members shall expire in each of five successive years and their successors shall thereafter be appointed for full terms of five years. No such additional member shall take part in the consideration of any matter for which an application was on file with the board of appeals at the time of his or her appointment.
6. Decreasing membership. A legislative body which has increased the number of members of the board of appeals to five may, by local law or ordinance, decrease the number of members of the board of appeals to three to take effect upon the next two expirations of terms. Any board of appeals which, upon the effective date of this section has seven members, may continue to act as a duly constituted zoning board of appeals until the legislative body, by local law or ordinance, reduces such membership to three or five. However, no incumbent shall be removed from office except upon the expiration of his or her term.
7. Vacancy in office. If a vacancy shall occur otherwise than by expiration of term, the mayor or in a city having a city manager, the city manager shall appoint the new member for the unexpired term.
7-a. Training and attendance requirements. (a) Each member of the board of appeals in a city, except a city having a population of more than one million, shall complete, at a minimum, four hours of training each year designed to enable such members to more effectively carry out their duties. Training received by a member in excess of four hours in any one year may be carried over by the member into succeeding years in order to meet the requirements of this subdivision. Such training shall be approved by the legislative body and may include, but not be limited to, training provided by a municipality, regional or county planning office or commission, county planning federation, state agency, statewide municipal association, college or other similar entity. Training may be provided in a variety of formats, including but not limited to, electronic media, video, distance learning and traditional classroom training.
(b) To be eligible for reappointment to such board, such member shall have completed the training promoted by the city pursuant to this subdivision.
(c) The training required by this subdivision may be waived or modified by resolution of the legislative body of the city when, in the judgement of such legislative body, it is in the best interest of the city to do so.
(d) No decision of a board of appeals shall be voided or declared invalid because of a failure to comply with this subdivision.
8. Removal of members. The mayor or in a city having a city manager, the city manager 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 non-compliance with any minimum requirements relating to meeting attendance and training as established by the legislative body by local law or ordinance.
9. Compatibility of offices. The municipal officials or employees on such board shall not, by reason of membership thereon, forfeit their right to exercise the powers, perform the duties or receive the compensation of the municipal office or position held by them during such membership. No municipal officer or employee shall be appointed to the zoning board of appeals in the event such officer or employee cannot carry out the duties of his or her position without a conflict in the performance of his or her duties as a member of the zoning board of appeals.
10. Chairperson duties. All meetings of the board of appeals shall be held at the call of the chairperson and at such other times as such board may determine. Such chairperson, or in his or her absence, the acting chairperson, may administer oaths and compel the attendance of witnesses.
11. Alternate members. (a) The legislative body of each city except a city having a population of more than one million 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 the mayor or other duly authorized appointing authority, for terms established by the legislative body of the city.
(b) 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.
(c) 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, compatibility of office and service on other boards, shall also apply to alternate members.
Last modified: February 3, 2019