[Ord. of 12-19-1983, § 1; Ord. of 9-8-1987, §§ 2, 3; L.L. No. 4-1996, § 1]
The Board of Appeals shall have all the powers and duties prescribed by law and by this chapter, as set forth below, provided that nothing in this chapter except as specifically provided in this article shall be deemed to limit any of the statutory powers granted to the Board by §§ 81, 81-a, 81-b and 81-c of the General City Law.
(1) Interpretation. On appeal from an order, requirement, decision or determination made by an administrative official or on request by an official, board or agency of the City, to decide any one of the following questions:
(a) The meaning of any portion of the text of this chapter or of any condition or requirement specified or made under the provisions of this chapter and whether or not the appellant has complied therewith.
(b) The exact location of any district boundary shown on the Zoning Map.
(c) Approval for change of a legal nonconforming use, pursuant to Section
19-5.1(1) of the Zoning Ordinance of the City of Poughkeepsie.
(2) Variances.
(a) Definitions. As used in this article, the following terms shall have the meanings indicated:
AREA VARIANCEThe 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 the applicable zoning regulations.
USE VARIANCEThe authorization by the Zoning Board of Appeals for the use of land for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations.
(b) 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 be 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, decision, interpretation or determination the appeal is taken.
(c) Use variances.
1. The Board of Appeals, on appeal from the decision or determination of the administrative official charged with the 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 the 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; and
d. The alleged hardship has not been self-created.
3. The 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.
(d) Area variance.
1. The Zoning Board of Appeals shall have the power, upon an appeal from a decision or determination of the administrative official charged with the enforcement of such ordinance or local law, to grant area variances as defined herein.
2. 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:
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 will have an adverse effect or impact on 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 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 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.
(3) Recommendation for zoning change. Where the Board of Appeals finds that the use of the property under its zoning classification has or will cause unnecessary hardship but that the same conditions generally to other land or buildings in the same general vicinity or zoning district, said Board shall call this condition to the attention of the Common Council and shall not grant a variance application until 120 days following such notification and then only if the Common Council shall have failed to enact a suitable amendment to the Zoning Ordinance.
(4) Variance procedures in areas of special flood hazards.
(a) Appeal board.
1. The Zoning Board of Appeals as established by the City of Poughkeepsie shall hear and decide appeals and requests for variances from the requirements of the Flood Damage Prevention Ordinance, 19-4.6, as regulated under Section
19-8.4, Subsection
(2), variances, of the Zoning Ordinance of the City of Poughkeepsie.
2. In passing upon such applications, the Zoning Board of Appeals shall consider all technical evaluations, all relevant factors, standards specified in other sections of this Chapter and:
a. The danger that materials may be swept onto other lands to the injury of others.
b. The danger to life and property due to flooding or erosion damage.
c. The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner.
d. The importance of the services provided by the proposed facility to the community.
e. The necessity to the facility of a waterfront location, where applicable.
f. The availability of alternative locations for the proposed use which are not subject to flooding or erosion damage.
g. The compatibility of the proposed use with existing and anticipated development.
h. The relationship of the proposed use to the Comprehensive Plan and flood plain management program of that area.
i. The safety of access to the property in times of flood for ordinary and emergency vehicles.
j. The expected heights, velocity, duration, rate of rise and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site.
k. The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical and water systems and streets and bridges.
3. Upon consideration of the factors of this Subsection (4)(a) and the purposes of this Chapter, the Zoning Board of Appeals may attach such conditions to the granting of variances as it deems necessary to further the purposes of the Flood Damage Prevention Ordinance.
4. The Zoning Administrator shall maintain the records of all appeal actions, including technical information and report any variances to the Federal Insurance Administration upon request.
(b) Conditions of variances in areas of special flood hazards.
1. Generally, variances may be issued for new construction and substantial improvements to be erected on a lot of 1/2 acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, provided that the items in Subsection (4)(a)2 have been fully considered. As the lot size increases beyond 1/2 acre, the technical justification required for issuing the variance increases.
2. Variances may be issued for the reconstruction, rehabilitation or restoration of structures listed on the National Register of Historic Place or the State Inventory of Historic Places, without regard to the procedures set forth in the remainder of this section.
3. Variances shall not be issued within any designated floodway if any increase in flood levels during the base flood discharge would result.
4. Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.
5. Variances shall only be issued upon:
a. A showing of good and sufficient cause;
b. A determination that failure to grant the variance would result in exceptional hardship to the applicant; and
c. A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public as identified in Subsection (4)(a) or conflict with existing local laws or ordinances.
6. Any applicant to whom a variance is granted shall be given written notice that the structure will be permitted to be built with a lowest floor elevation below the base flood elevation and that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation.
7. Variances may be issued for new construction and substantial improvements and for other development necessary for the conduct of a functionally dependent use provided that:
b. The structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threat to public safety.