There shall be a Board of Appeals of five members pursuant to the provisions of § 267 of the Town Law.
The Board of Appeals shall have all the powers and duties prescribed by law and by this chapter, which are more particularly specified as follows, provided that none of the following provisions shall be deemed to limit any power of the Board that is conferred by law:
A. 
Meetings, minutes, records. Meetings of the Board of Appeals shall be open to the public to the extent provided in Article 7 of the Public Officers Law. The Board of Appeals shall keep minutes of its proceedings, showing the vote of each member upon every question, or, if absent or failing to vote, indicating such fact, and shall also keep records of its examinations and other official actions.
B. 
Filing requirements. Every rule or regulation, every amendment or repeal thereof and every order, requirement, decision or determination of the Board of Appeals shall be filed in the office of the Town Clerk within five business days and shall be a public record.
C. 
Assistance to Board of Appeals. The Board of Appeals shall have the authority to call upon any department, agency or employee of the Town for such assistance as shall be deemed necessary and as shall be authorized by the Town Board. Such department, agency or employee may be reimbursed for any expenses incurred as a result of such assistance.
D. 
Hearing appeals. Unless otherwise provided by local law or ordinance, the jurisdiction of the Board of Appeals shall be by appellate only and shall be limited to hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation or determination made by an administrative official charged with the enforcement of any ordinance or local law adopted pursuant to this chapter. The concurring vote of the 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 an officer, department, board or bureau of the Town.
E. 
Time of appeal. Such appeal shall be taken within 60 days after the filing of any order, requirement, decision, interpretation or determination of the administrative official charged with the enforcement of such ordinance or 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.
F. 
Stay upon appeal. An appeal shall stay all proceedings in furtherance of the action appealed from, unless the administrative official charged with enforcement of such ordinance or local law, from whom the appeal is taken, certifies to the Board of Appeals, after the notice of appeal shall have been filed with the administrative official, 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 Board of Appeals or by a court of record on application, on notice to the administrative official from whom the appeal is taken and on due cause shown.
G. 
Hearing on appeal. The Board of Appeals shall fix a reasonable time for the hearing of the appeal or other matters referred to it and give public notice of such hearing by publication in a paper of general circulation in the Town at least five 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.
H. 
Time of decision. The Board of Appeals shall decide upon the appeal within 62 days after the conduct of said hearing. The time within which the Board of Appeals must render its decision may be extended by mutual consent of the applicant and the Board.
I. 
Filing of decision and notice. The decision of the Board of Appeals on the appeal shall be filed in the office of the Town Clerk within five business days after the day such decision is rendered, and a copy thereof shall be mailed to the applicant.
J. 
Notice to park commission or planning agency. At least five days before such hearing, the Board of Appeals shall mail notices thereof to the parties; to the regional state park commission having jurisdiction over any state park or parkway within 500 feet of the property affected by such appeal and to the county, metropolitan or regional planning agency, as required by § 239-m of the General Municipal Law, which notice shall be accompanied by a full statement of the matter under consideration, as defined in Subdivision 1 of § 239-m of the General Municipal Law.
K. 
Compliance with State Environmental Quality Review Act. 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 as codified in Title 6, Part 617, of the New York Codes, Rules and Regulations.
L. 
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 is required for such a 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 reviewed order, decision or determination will not be prejudiced thereby.
M. 
Referral to the Town Planning Board. Prior to the date of any public hearing, the Secretary of the Board of Appeals shall transmit to the Secretary of the Town Planning Board a copy of any appeal or application, together with a copy of the notice of such hearing. The Planning Board may submit to the Board of Appeals an advisory opinion on said appeal or application at any time prior to the rendering of a decision by the Board of Appeals.
A. 
Orders, requirements, decisions, interpretations, determinations. The Board of Appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, interpretation 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 administrative official charged with the enforcement of such ordinance or local law and, to that end, shall have all the powers of the administrative official from whose order, requirement or decision the appeal is taken.
B. 
Referrals to County Planning Board.
(1) 
The following shall be referred to the County Planning Board:
(a) 
Adoption or amendment of a comprehensive plan pursuant to § 272-a of Town Law;
(b) 
Adoption or amendment of a zoning ordinance or local law;
(c) 
Issuance of special use permits;
(d) 
Approval of site plans;
(e) 
Granting of use and area variances;
(f) 
Other authorizations that a referring body may issue under the provisions of any zoning ordinance or local law.
(2) 
Referral when property within 500 feet.
(a) 
The proposed actions set forth above shall be subject to referral to the County Planning Board if they apply to real property within 500 feet of the following:
[1] 
The boundary of any city, village or town; or
[2] 
The boundary of any existing or proposed county or state park or other recreation area; or
[3] 
The right-of-way of any existing or proposed county or state parkway, throughway, expressway or other controlled-access highway; or
[4] 
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; or
[5] 
The existing or proposed boundary of any county- or state-owned land on which a public building or institution is situated; or
[6] 
The boundary of any farm operation located in an agricultural district, as defined by Article 25-AA of the Agriculture and Markets Law, except this subsection shall not apply to the granting of area variances.
(b) 
The referring board shall not take final action until it has received a recommendation within 30 days from the County Planning Board.
C. 
Use variances.
(1) 
The Board of Appeals, on an appeal from the decision or determination of the administrative official charged with enforcement of such ordinance or local law, shall have the power to grant use variances, as defined herein.
(2) 
No such use variance shall be granted by the Board of Appeals 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 Board of Appeals that for each and every permitted use under the zoning regulations for that particular district where 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) 
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.
(3) 
The Board of Appeals, in the granting of a use variance, 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. 
Area variances.
(1) 
The Board of Appeals shall have the power, upon an appeal from a decision or determination of an administrative official charged with the enforcement of such ordinance or local law or by direct request of the applicant pursuant to Town Law §§ 274-a, Subdivision 3; 274-b, Subdivision 3; and 277, Subdivision 6, to grant area variances as defined herein.
(2) 
In making its determination, the 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 a 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 or 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 area variance is substantial.
(d) 
Whether the proposed 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, 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 adequate and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.
E. 
Imposition of conditions. The Board of Appeals shall, in the 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.
A. 
Application to Supreme Court by aggrieved persons. Pursuant to Town Law § 267-c, any person or persons, jointly or severally aggrieved by any decision of the Board of Appeals or any officer, department, board or bureau of the Town, may apply to the Supreme Court for review by a proceeding under Article 78 of the Civil Practice Law and Rules. Such proceeding shall be instituted within 30 days after the filing of a decision of the Board of Appeals in the office of the Town Clerk.
B. 
Costs of appeal. Costs shall not be allowed against the Board of Appeals unless it shall appear to the Court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from.
C. 
Preference of appeal to Court. All issues in any proceeding under this section shall have preference over all other civil actions and proceedings.
D. 
Power of court. If, upon hearing at the Supreme Court, it shall appear to the Court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the Court with his or her findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the Court shall be made. The Court may reverse or affirm, wholly or partly, or may modify the decision brought up for review, determining all questions which may be presented for determination.