The Board of Appeals shall have all the powers and duties prescribed
by Article 16 of the Town Law and other provisions of the Code of
the Town of Colden and this chapter, which are more particularly specified
as follows:
A. Appellate jurisdiction.
(1)
Appeals seeking interpretation. The Zoning Board of Appeals,
hereinafter referred to as the "ZBA," shall herein decide appeals
where it is alleged that there is an error or misinterpretation in
an order, requirement, interpretation, decision or determination by
the town's Building Inspector/Code Enforcement Officer (CEO), who
is charged with the enforcement of the provisions of this chapter
of the Code of the Town of Colden. The Zoning Board of Appeals may
reverse, modify or affirm, in whole or in part, any such appealed
order, requirement, interpretation, decision or determination appealed
from and may make such order, requirement, interpretation, decision
or determination as is, in its opinion, ought to be made in strictly
applying and interpreting the provisions of this chapter of the Code
of the Town of Colden and, for such purposes, shall have all the powers
of the Building Inspector/CEO from whom the appeal is taken.
(2)
Appeals seeking variances.
(a)
The Zoning Board of Appeals shall have the power, upon an appeal
from a decision or determination of the Building Inspector/CEO, to
grant area variances. An area variance shall mean 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
chapter of the Code of the Town of Colden.
[1]
In making its decision, the ZBA 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;
[c] Whether the requested area variance is substantial;
[d] Whether the proposed variance shall have an adverse
effect or impact or 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 ZBA but
shall not necessarily preclude the granting of the area variance.
[2]
The ZBA, in the granting of area variances, shall grant the
minimum variance that is 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.
(b)
Use variances. The ZBA, on appeal from the decision or determination
of the Building Inspector/CEO charged with the enforcement of this
chapter of the Code of the Town of Colden, shall have the power to
grant use variances. Use variance shall mean the authorization by
the ZBA for the use of land for a purpose which is otherwise not allowed
or is prohibited by this chapter.
[1]
No such use variance shall be granted by the ZBA 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 ZBA that for each
and every permitted use under this chapter for the particular district
that the property is located:
[a] 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
[d] That the alleged hardship has not been self-created.
[2]
The ZBA, 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 neighborhood.
(c)
Imposition of conditions. The ZBA 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. 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.
B. Original jurisdiction. The original jurisdiction shall be only as pursuant to any relevant provisions in Chapter
108 of the Code of the Town of Colden.