The Board of Appeals shall have the following power and duties prescribed by statute (see §
81 of the General City Law as may be amended from time to time) and this chapter:
A. Interpretation. On appeal from an order, requirement, decision or
determination made by a Zoning Enforcement Officer or on request by
an official, board or department of the City, to decide any one of
the following questions:
(1) 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.
B. Special use permits. The Board of Appeals shall review and issue special use permits in accordance with Article
XII, Special Use Permits, of this chapter.
C. Appeals. The Board of Appeals shall, in accordance with provisions of this article, hear and determine appeals from any refusal of a zoning permit, building permit or certificate of occupancy by the Building Inspector, Housing Inspector or Zoning Enforcement Officer or review any order or decision of said individuals where such order or decision is based upon the requirements of this Chapter
272, Zoning.
D. Variances. The Board of Appeals, on appeal from the decision or determination
of the Zoning Enforcement Officer, shall have the power to grant variances,
as follows:
(1) Use variances.
(a)
A use variance is an authorization by the Board of Appeals that
allows a specified use in a zoning district where such specified use
is not allowed. No such use variance shall be granted by a 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 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]
That 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]
That the requested use variance, if granted, will not alter
the essential character of the neighborhood; and
[4]
That the alleged hardship has not been self-created.
(b)
The Board, 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.
(2) Area variances.
(a)
An area variance is an authorization by the Board of Appeals
that allows a departure from the requirements of this chapter. Area
variances include any departure not covered by a use variance (for
example, lot size, yard sizes and number of parking spaces). In making
its determination, on an area variance application the Board 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 Board of Appeals but shall
not necessarily preclude the granting of the area variance.
(b)
The Board, 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.
(3) 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.
All requests to withdraw an application or appeal made to the
Board must be made in writing to the Board of Appeals at least 24
hours prior to the scheduled time of the public hearing at which the
appeal is to be heard. Failure to make such application for withdrawal
may result in the application or appeal being heard by the Board and
a decision made upon such evidence as is presented to the Board.