A.
The Zoning Board of Appeals, on appeal from a decision or determination
by the Commissioner of the Department of Housing and Buildings, shall
have the power to grant use variances, as defined herein.
B.
No such use variance shall be granted by the 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.
(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 is deemed 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.
A.
The Zoning Board of Appeals shall have the power, on appeal from
a decision or determination of the Commissioner of the Department
of Housing and Buildings, to grant area variances as defined herein.
B.
The Zoning Board of Appeals shall also have the power to permit a departure or variation from the dimensional requirements for a special use permit, as specified in Article VII of this chapter. Such a determination shall be made based upon the consideration of the criteria set forth in § 43-86C of this chapter.
C.
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 Zoning Board of Appeals 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 variance.
(2)
Whether the benefit sought by the applicant can be achieved by some
method feasible for the applicant to pursue, other than the variance.
(3)
Whether the requested 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.
(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 variance.
D.
The Zoning Board of Appeals, in the granting of such variances, shall
grant the minimum variance that it deems 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.
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 this chapter or local law and shall
be imposed for the purpose of minimizing any adverse impact such variance
may have on the neighborhood or community.
A variance granted by the Zoning Board of Appeals pursuant to Article VIII shall be deemed to have expired unless:
A.
The lot or land, where no building or structure is involved, shall
have been put into use within 12 months after the date of issue of
such variance, for the purpose for which such permit was granted.
B.
The building or structure for which such variance was granted shall
have been actually begun within 12 months after the date of issue
of such permit.
C.
The entire building or structure for which such variance was granted
shall have been completed according to filed plans within three years
after the date of such permit.
A.
The Zoning Board of Appeals may reasonably extend the period of time beyond those provided for in § 43-88 at the time of its decision on the variance. Such an extension shall be made only upon a showing by the applicant that the time periods provided for in § 43-88 would not reasonably allow for the commencement or completion of the development for which the variance is sought, and provided that such an extension would not cause a detriment to the character of the neighborhood and the health and safety of the community.
B.
The Zoning Board of Appeals may also grant an extension of time for
the commencement of construction for a building or structure for which
a variance was previously granted, following the original granting
of such variance, provided that the variance has not already expired.
Such extension shall only be granted upon a showing by the applicant
that the circumstances and conditions upon which the variance was
originally granted have not substantially changed.
C.
In the event that a permit for a variance has expired, the applicant
shall be required to make a new application to the Zoning Board of
Appeals for renewal of the variance permit, in accordance with the
procedures contained within this article.
If required as per § 239-m of the General Municipal
Law, notice of the public hearing on the variance shall be provided
to the Westchester County Planning Board and the abutting municipality,
as required. Applications shall also be referred to the Westchester
County Planning Board, as required by § 239-m of the General
Municipal Law, which shall have 30 days from the receipt of such referral
to issue its recommendations to the Zoning Board of Appeals. In the
event that the Westchester County Planning Board recommends modification
or disapproval of an application, the Zoning Board of Appeals shall
not act contrary to such recommendation except by a vote of a majority
plus one.
