The Board of Appeals shall have the following powers:
A. The jurisdiction of the Board of Appeals shall be appellate only
and shall be limited to hearing and deciding appeals from and reviewing
any order, requirement, decision, interpretation, or determination
made by the Code Enforcement Officer charged with enforcement of this
chapter. Such appeal may be taken by any person aggrieved, or by an
officer, department, board or bureau of the Village. Permitted action
by the Board of Appeals shall include:
(1) Administrative review of orders, requirements, decisions, interpretations
and 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 been made in the matter by the Code Enforcement Officer and
to that end shall have all the powers of the Code Enforcement Officer
from whose order, requirement, decision, interpretation or determination
the appeal is taken.
(2) Variance. To hear applications for area or use variances from the
terms of this chapter will not be contrary to the law or to public
interest where, owing to unique conditions, a literal enforcement
of the provisions of this chapter will result in unnecessary hardship,
while adhering to the spirit of this chapter and doing substantial
justice. Financial disadvantage to the property owner is no proof
of hardship within the purpose of zoning. Hardship must be unique
and must arise from either a natural or man-made condition of the
land upon which a use not in conformance with the literal terms of
this chapter is proposed.
(a)
Use variances.
[1]
The Board of Appeals, on appeal from the decision or determination
of the administrative officer charged with the enforcement of such
local law, shall have the power to grant use variances, as defined
herein.
[2]
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.
[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 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.
(b)
Area variances.
[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 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.
[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 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 zoning chapter
and shall be imposed for the purpose of minimizing any adverse impact
such variance may have on the neighborhood or community.
In accordance with the policy and procedures provided for by
Article 12-B, §§ 239-1 and 239-m, of the General Municipal
Law, any proposed interpretation or variance affecting real property
within 500 feet of the boundary of the Village of Nassau or from the
boundary of any existing or proposed county or state park or other
recreational area, or from the right-of-way of any existing or proposed
county or state parkway, thruway, expressway, road or highway, or
from the existing or proposed right-of-way of any stream or drainage
channel owned by the county or for which the county has established
channel lines, or from the existing or proposed boundary of any state-owned
land on which a public building or institution is situated, shall
be referred to the Rensselaer County Planning Board at least five
days before any scheduled hearing. The referral to the County shall
include a full statement of the proposed action. The term "proposed"
shall be deemed to include only those recreational areas, parkways,
thruways, expressways, roads or highways which are shown on a County
Plan of Rensselaer County adopted pursuant to § 239-d, Subdivision
2, of the General Municipal Law or adopted as an Official Map of Rensselaer
County pursuant to § 239-g of the General Municipal Law.
If the Rensselaer County Planning Board fails to report within 30
days after receipt of a full statement of such referred material,
the Board of Appeals may act without such report. If the Rensselaer
County Planning Board disapproves the proposal or recommends modifications
thereof, the Board of Appeals shall not act contrary to such disapproval
or recommendation except by a vote of a majority plus one of all the
members thereof and after the adoption of a resolution setting forth
the reasons for the contrary action. The Board shall file a report
of its final action taken with the County Planning Board within 30
days after its decision has been made.