The Zoning Board of Appeals (ZBA) is empowered to authorize
upon appeal in specific cases such variance from the terms of this
chapter as will not be contrary to the public interest. The variance
procedures may not be used to:
The petitioner seeking the variance shall have the burden of
presenting sufficient evidence to allow the ZBA to reach a conclusion
as set forth below as well as the burden of persuasion on those items.
A.
Application. Applications for zoning variances may be initiated
only by the owner of the subject property or by the owner's authorized
agent. Complete applications for a zoning variance must be filed with
the Village Clerk.
B.
Public hearing. Once the application has been determined to be complete, the ZBA must hold at least one public hearing on a proposed zoning variance. Notice of said public hearing shall be provided as required by local and state law (see § 95-60.3C for additional information on public hearing notices).
C.
Decisions.
(1)
The ZBA shall decide upon the variance request within
62 days after the closing of the public hearing. The time within which
the ZBA may render its decision may be extended by mutual consent
of the petitioner and the Board.
(2)
The decision the ZBA shall be filed with the Village
Clerk within five business days after the decision is rendered, and
a copy mailed to the petitioner.
A use variance authorizes the use of land for a purpose that
is otherwise not allowed or prohibited by this chapter.
A.
Criteria for use variance. No such use variance shall be
granted by the ZBA without a showing by the applicant that applicable
zoning regulations and restrictions have caused unnecessary hardship.
In order to prove such unnecessary hardship, per New York State Village
Law, the applicant shall demonstrate to the ZBA that for each and
every permitted use under the zoning regulations for the particular
district where the property is located the following conditions exist:
(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; and
(4)
That the alleged hardship has not been self-created.
B.
Minimum relief necessary. The ZBA, in the granting of use
variances, shall grant the minimum variance that it shall deem necessary
and adequate to address the unnecessary hardship proved 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.
An area variance authorizes the use of land that is not allowed
by the dimensional or physical requirements set forth in this chapter.
A.
Criteria for area variance. In making its determination,
the ZBA 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
the following as required by New York State Village Law:
(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.
Minimum relief necessary. The ZBA, 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.
The ZBA 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 Village Code and shall be imposed
for the purpose of minimizing any adverse impact such variance may
have on the neighborhood or community.
Zoning variance approval runs with the land and is not affected
by changes of tenancy, ownership, or management.
A request for changes in conditions of approval of a zoning
variance must be processed as a new variance application, including
the requirements for fees, notices, and hearings.
