The Board of Appeals shall have all the powers and duties prescribed
by law and by this chapter, which are more particularly specified
as follows, provided that none of the following provisions shall be
deemed to limit any power of said Board that is conferred by law:
A. 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 Town, to decide any of the following
questions:
(1) Determination of 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.
(2) Determination of the exact location of any district boundary shown
on the Zoning Map.
B. Variances. To authorize, upon appeal in specific cases, such variances
from the terms of this chapter after public notice and personal notice
and after hearing and subject to appropriate safeguards and conditions
for the protection of public and of neighboring properties as will
not be contrary to the public interest where, due to exceptional and
extraordinary circumstances, there are unnecessary hardships in the
way of carrying out of the strict letter of this chapter, subject
to terms and conditions to be fixed by the Board. The sole purpose
of any variance shall be to prevent discrimination, and no variance
shall be granted which would have the effect of granting a special
privilege not shared by other property in the same vicinity or zone.
(1) Use variance. The Board of Appeals, on appeal from the decision or
determination of the administrative official charged with the enforcement
of this chapter, shall have the power to grant use variances, authorizing
the use of the land which otherwise would not be allowed or would
be prohibited by the terms of this chapter. No such use variance shall
be granted by the Board of Appeals without a showing by the applicant
that applicable zoning regulations and restrictions create unnecessary
hardship. In order to prove such unnecessary hardship, the applicant
must demonstrate to the Board and the Board must find that:
(a)
Under applicable zoning regulations the applicant is deprived
of all economic use or benefit from the property in question, which
deprivation must be established 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.
(2) Area variance. The Zoning Board shall have the power upon appeal
from a decision or determination of an administrative official charged
with the enforcement of this chapter, or upon direct application of
a property owner, to grant area variances from the area or dimensional
requirements of this chapter. In making its determination, the Board
shall take into account 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 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) Basis for determination of variance.
(a)
That the granting of either an area or use variance under such
conditions as the Board may deem necessary or desirable to apply thereto
will be in harmony with the general purpose and intent of this chapter,
will not represent a radical departure therefrom, will not be injurious
to the neighborhood, will not change the character thereof and will
not be otherwise detrimental to the public welfare. That for the reasons
set forth in the findings of the Board, the granting of the variance
is necessary for the reasonable use of the land or building, and that
the variance as granted by the Zoning Board is the minimum variance
that will accomplish this purpose.
(b)
The needs or desires of a particular owner or tenant or of a
particular prospective owner or tenant shall not, either alone or
in conjunction with other factors, afford any basis for the granting
of a variance. The fact that the improvements already existing at
the time of the application are old, obsolete, outmoded or in disrepair
or the fact that the property is then unimproved shall not be deemed
to make the plight of the property unique or to contribute thereto.
(c)
Where the Board finds the zoning classification of a particular
property to be conducive to the deprivation of any economic benefit
or reasonable use of the land or building by the owner thereof, and
where the Board deems the same condition to apply generally to other
land or buildings in the same neighborhood or district, said Board
may call this condition to the attention of the Planning Board or
Town Board.
(d)
In all cases where the Board of Appeals grants a variance from
the strict application of the requirement of this chapter, it shall
be the duty of such Board to attach conditions and safeguards as may
be required in order that the result of its action may be nearly as
possible in accordance with the spirit and intent of this chapter.