The Zoning Board of Appeals shall hear and decide appeals pursuant
to the provisions of the laws of the State of New York and shall have
the following specific powers:
A. Variances. The Zoning Board of Appeals may vary or adapt the strict
application of any of the requirements of this chapter where such
strict application would result in practical difficulties or unnecessary
hardship that would deprive the owner of the reasonable use of the
land or building involved.
B. Appeals from administrative decisions. The Zoning Board of Appeals
shall hear and decide appeals from and review any order, requirement,
decision, or determination made by the Code Enforcement Officer in
administering this chapter. It shall also hear and decide all matters
referred to it or upon which it is required to pass under the provisions
of this chapter.
C. Interpretation. The Zoning Board of Appeals shall, upon request from
or upon appeal of a decision by the Code Enforcement Officer, decide
any questions involving the interpretation of any provision of this
chapter, including determination of the exact location of any district
boundary if there is uncertainty with respect thereto.
Two types of variances may be granted by the Zoning Board of
Appeal: area variances and use variances. Area variances involve relief
from dimensional or other requirements for existing uses or uses allowed
within the district under the terms of this chapter. Use variances
involve a use of land not allowed in a district under the terms of
this chapter. Each of the following findings of fact shall be made
in writing by resolution by the Zoning Board of Appeals prior to granting
such variances.
A. Area variances. 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.
(1)
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 whether:
(a)
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)
The benefit sought by the applicant can be achieved by some
method, feasible for the applicant to pursue, other than an area variance;
(c)
The requested area variance is substantial;
(d)
The proposed variance will have an adverse effect or impact
on the physical or environmental conditions in the neighborhood or
district; and
(e)
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.
(2)
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.
B. Use variances. The Zoning 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.
(1)
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 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. For example,
if an owner purchases a residentially zoned property for the purpose
of opening a commercial business, the hardship is self-created.
(2)
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.
C. 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.