Pursuant to New York State Town Law, the Town Board shall appoint
a Zoning Board of Appeals consisting of five members, shall designate
its Chairperson, and also provide for such expenses as may be necessary
and proper. A member of the Zoning Board of Appeals shall not at the
same time be a member of the Town Board. The Town Board shall have
the power to remove any member of the Zoning Board of Appeals for
cause and after public hearing.
The Zoning Board of Appeals may employ such clerical or other
staff assistance as may be necessary, and prescribe their duties,
provided that it shall not at any time incur expenses beyond the amount
of the appropriations made by the Town Board and then available for
that purpose.
The Zoning Board of Appeals shall have the following powers
and duties:
A.
Appeals. The Zoning Board of Appeals may reverse or affirm, wholly
or partly, or may modify the order, requirement, decision, interpretation
or determination appealed from and shall issue such order, requirement,
decision, interpretation or determination as in its opinion ought
to have been made in the matter by the Code Enforcement Officer, and
to that end shall have all of the powers of the Code Enforcement Officer.
B.
Variances. The Zoning Board of Appeals, on an appeal from a decision
or determination of the Code Enforcement Officer, shall have the power
to grant area and use variances as defined herein.
B.
Criteria for review. No use variance shall be granted by the Zoning
Board of Appeals without a showing by the applicant that the zoning
regulations and restrictions have caused unnecessary hardship. In
order to prove such unnecessary hardship, the applicant shall demonstrate
the following to the Zoning Board of Appeals; that for each and every
permitted use under this chapter for the particular district in which
the property is located:
(1)
The applicant cannot realize a reasonable return, provided that
lack of return is substantial and 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 is not self-created.
A.
Definition. An area variance is an authorization by the Zoning Board
of Appeals for the use of land in a manner which is not allowed by
dimensional or physical requirements of the applicable zoning regulations.[1]
B.
Criteria for review. In making the 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 general welfare of the neighborhood or community
by such grant. In making such determination, the Board shall consider
the following:
(1)
Whether an undesirable change will be produced in the character
of the neighborhood or community 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 is relevant
to the decision, but shall not necessarily preclude the granting of
the variance.
A.
The Zoning Board of Appeals, in granting an area or use variance,
shall grant the minimum variance that it deems 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 health, safety and general welfare of the community.[1]
B.
The Zoning Board of Appeals shall, in granting an area or use variance,
have the authority to impose such reasonable conditions and restrictions
as are related to and incidental to the proposed use of property.
The Zoning Board of Appeals shall refer all area and use variances
to the Town of Elmira Planning Board at least 30 days prior to the
scheduled hearing date. The Planning Board shall report its recommendation
to the Zoning Board of Appeals at least five days prior to the hearing
date.
The Zoning Board of Appeals shall have the power to make, adopt,
and promulgate such written rules of procedure, bylaws, and forms
as it may deem necessary for the proper execution of its duties and
to secure the intent of this chapter.
