[Ord. No. 4, 2-3-2021]
(a)
General. In exercising its powers, the Board may reverse or affirm
wholly or partly, or modify the order, requirement, decision or determination
as in its judgment ought to be made in accordance with the provisions
of this chapter and pursuant to Chapter 21 Article 5-A, Section 81
of the General City Law of the State of New York.
(b)
Jurisdiction. The Board shall have all the power and duties prescribed
by law and this chapter which are more particularly specified as follows:
(1)
Interpretation. Upon appeals from a decision by the Commissioner
of Code Enforcement, the Commissioner of Urban and Economic Development
or any other administrative official, or by its own motion, the Zoning
Board of Appeals, after due notice and public hearing, shall decide
appeals where it is alleged that an error or misinterpretation in
any order, requirement, decision, grant or refusal has been made in
carrying out the enforcement of the provisions of this chapter, including
the determination of the exact location of any district boundary if
there is uncertainty with respect thereto.
(2)
Grant variances. The Zoning Board of Appeals, after due notice
and public hearing, may vary or adapt the strict application of any
of the requirements of this chapter where in the case of exceptional
physical limitations to land or buildings, such strict application
would result in a practical difficulty (area variance) or unnecessary
hardship (use variance) which would deprive the owner of the reasonable
use of the land or building involved.
(3)
Allow building in bed of mapped streets. If after due notice
and hearing as provided for in Chapter 21, Article 3, Section 35 of
the General City Law of the State of New York and in accordance with
the provisions set forth an advisory opinion has been rendered by
the Planning Board, the Board may grant a permit for a building in
the bed of a mapped street or highway shown upon the official map
or plan of the City.
(4)
Extension of district boundaries. Where a district boundary
line divides a lot in single ownership as shown of record at the time
of the effective date of this chapter, the Board may extend the zoning
district boundary line to include a greater portion or all of said
lot in single ownership.
(5)
Granting of temporary uses. The Zoning Board of Appeals may
grant, after due notice and public hearing, the temporary occupancy
and use of a structure or lot in any district for a purpose that does
not conform with the district requirements provided that such occupancy
and use is a temporary one and subject to any reasonable conditions
and safeguards which the Board may impose to minimize any injurious
effect on the neighborhood or contiguous property. The permit shall
be granted for a period of 12 months and shall be renewable for a
period of not more than 12 months.
[Ord. No. 4, 2-3-2021]
(a)
Initiation. A property owner may apply to the Zoning Board of Appeals
for a variance of the strict application of the terms of this chapter.
(b)
Authorization.
(1)
On an appeals from a determination of the Commissioner of Code
Enforcement or the Commissioner of Urban and Economic Development
and in conformity with law, the Zoning Board of Appeals has the authority
to vary the requirements as they apply to a particular lot where the
property owner can show that his or her property was acquired in good
faith and where the strict application of this chapter would result
in practical difficulty or unnecessary hardship.
(2)
No application for a variance shall be acted upon until the
required public hearing has been held. The Zoning Board of Appeals
shall render a written decision on the application for an area or
use variance within 62 days of the date of the public hearing. This
time period may be extended by mutual consent of the applicant and
the Board.
(c)
Application.
(1)
Every application for a variance shall be filed with the Commissioner
of Code Enforcement. No application shall be officially on file with
the City unless and until the application and all required accompanying
submissions are submitted to the Commissioner of Code Enforcement.
(2)
The application shall contain the following information:
a.
The specific provision or provisions of this chapter from which
an area or use variance is sought.
b.
The nature and extent of the variance sought.
c.
The special conditions of the property, or the nature of the
use and/or development of contiguous properties, which would make
such a variance necessary.
d.
A detailed statement indicating why the variance should be granted.
e.
A detailed site plan drawn to scale or with all measurements
clearly labeled.
f.
Photographs of the land or building involved which highlight
the area affected by the variance.
(d)
Standards for area and use variances. The Zoning Board of Appeals
shall prescribe appropriate conditions and safeguards to carry out
the requirements of this subsection and shall not grant any variance
unless it shall make a finding of fact based upon the evidence as
presented to it in each specific case as specified below:
(1)
Area variance.
a.
The Zoning Board of Appeals shall have the power, upon an appeal
from a decision or determination of the Commissioner of Code Enforcement,
to grant area variances as defined herein.
b.
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:
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 area variance;
2.
Whether the benefit sought by the applicant can be achieved
by some method feasible for the applicant to pursue, other than an
area variance;
3.
Whether the requested area 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; and
5.
Whether the alleged difficulty was self-created, which consideration
shall be relevant to the decision of the Zoning Board of Appeals,
but shall not necessarily preclude the granting of the area variance.
c.
The Zoning 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.
d.
Imposition of conditions. The Zoning 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 the zoning ordinance or local law, and shall be imposed
for the purpose of minimizing any adverse impact such variance may
have on the neighborhood or community.
(2)
Use variances.
a.
The Zoning Board of Appeals, on appeal from the decision or
determination of the Commissioner of Code Enforcement, shall have
the power to grant use variances, as defined herein.
b.
No such use variance shall be granted by a Zoning 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
Zoning Board of Appeals that for each and every permitted use under
the zoning regulations for the particular district where the property
is located:
1.
The applicant cannot realize a reasonable return, provided that
lack of return is substantial as demonstrated by competent financial
evidence;
2.
The alleged hardship relating to the property in question is
unique, and does not apply to a substantial portion of the district
or neighborhood;
3.
The requested use variance, if granted, will not alter the essential
character of the neighborhood; and
4.
The alleged hardship has not been self-created.
c.
The Zoning 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.
(e)
Expiration of variances.
(1)
Whenever a variance is authorized by the Zoning Board of Appeals,
the activity authorized thereby shall be established and any construction
authorized thereby shall be diligently prosecuted and shall be completed
within 12 months after the effective date of such variance, unless
an extension of not more than six months shall be granted by the Zoning
Board of Appeals because of the occurrence of conditions unforeseen
at the time of authorizing such variance.
(2)
If not so acted on and completed within a period of 12 months,
unless the same is extended as aforesaid, such variance shall automatically
expire without notice.
[Ord. No. 4, 2-3-2021]
All hearings of the Board shall be open to the public to the
extent provided in Article Seven of the Public Officers Law. The Board
shall keep minutes of its proceedings, showing the vote of each member
on 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 kept on file in the offices of the
City Planning Department and shall be part of the public record.
[Ord. No. 4, 2-3-2021]
A motion for the Zoning 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 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 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.
