The Board of Appeals shall receive applications for and have the power to grant a variance in the applications of any of the provisions of this chapter to a particular property, relating to the area, bulk, construction, or alteration of buildings, or any part thereof, in such a way that the spirit of this chapter shall be observed and maintained; public health, safety, and welfare secured; and substantial justice done.
A. Application. Application for such variance may be made on an appropriate form by any property owner in the Town of East Greenbush allegedly aggrieved by the strict application of any of the provisions or requirements of this chapter or who may desire to deviate therefrom.
B. Statement by applicant. Such application shall clearly state the specific provisions of this chapter from which variance is sought, the special circumstances which allegedly justify such variance, and the interpretation or ruling which is desired.
C. Criteria for granting variance.
(1) Use variances.
(a) The 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.
(b) 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.
[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.
(c) 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 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) 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.
(b) 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:
[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.
(c) 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.
D. Financial gain not a criterion. In no case shall a variance be granted solely for reasons of additional financial gain on the part of the owner of the land or building involved.
E. Conditions. In granting any variance, the Board of Appeals may prescribe any conditions that it deems necessary or desirable.
F. Compliance with rest of chapter. The granting of a variance to any provisions of this chapter shall not obviate the necessity of complying in every other respect with the other provisions of this chapter.
G. Fee. Each application to the Board of Appeals for variance shall be accompanied by the applicable fee in accordance with the fee schedule established and annually reviewed by the Town Board.