The Zoning Board of Appeals (ZBA), on appeal from a decision
or determination of the Code Enforcement Officer, shall have the power
to grant variances, as follows:
A.
Use variances.
(1)
A use variance is an authorization by the ZBA that allows a
specified use in a zoning district where such specified use is not
allowed. No such use variance shall be granted by a ZBA without a
showing by the applicant that applicable zoning regulations and restrictions
have caused unnecessary hardship. To prove such unnecessary hardship,
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:
(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.
(2)
In granting use variances, the ZBA shall grant the minimum variance
that it deems 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.
B.
Area variances.
(1)
An area variance is an authorization by the ZBA that allows
a departure from the requirements of this chapter. Area variances
include any departure not covered by a use variance; for example,
lot size, yard sizes and number of parking spaces. In making its determination
on an area variance application, 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 ZBA
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 ZBA but shall not necessarily
preclude the granting of the area variance.
(2)
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.
C.
Imposition of conditions. The Zoning 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
chapter and shall be imposed for the purpose of minimizing any adverse
impact such variance may have on the neighborhood or community.
D.
Appeals. Any person aggrieved, or any officer, department, board
or bureau of the Village, may appeal to the ZBA any order, requirement,
decision, interpretation or determination of officials charged with
the enforcement of this chapter. The Zoning Board of Appeals may reverse
or affirm, wholly or partly, or modify the order, requirement, decision,
interpretation or determination being appealed 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 assume all the powers of
the administrative official from whose order, requirement, decision
or determination the appeal is taken.
All applications for variances shall be made to the Code Enforcement
Officer on forms provided by the Code Enforcement Office and shall
be accompanied by required attachments and payment of a filing fee
as established in the Fee Schedule by the Village Board.
A.
The ZBA shall decide upon the application or appeal within 62 days
of conducting a public hearing unless extended by mutual consent of
the applicant and the ZBA.
B.
All decisions of the ZBA shall be in writing and shall contain the basis for the decision and a detailed summary of the facts upon which the determination was rendered. In the case of variances, the decision shall state whether or not the standards set forth in § 325-109, Subsections A and B, of this article and § 7-712 of the NYS Village Law for unnecessary hardship (use variances) or practical difficulty (area variances), as the case may be, have or have not been met, and such determination shall be supported by findings of facts, thereby warranting the reversal or affirmation of the Code Enforcement Officer. The decision shall also state in detail what conditions and safeguards are required.
C.
If a use variance is granted for a use requiring site plan review,
the applicant shall obtain site plan approval from the Planning Board
prior to commencing the use or obtaining a building permit.
A motion for the ZBA to hold a rehearing to review any order,
decision or determination of the Board previously reviewed may be
made by any member of the ZBA. A unanimous vote of all members of
the ZBA then present is required for such rehearing to occur. Such
rehearing is subject to the same notice provisions as an original
hearing. Upon such rehearing, the ZBA may reverse, modify or annul
its original order, decision or determination upon the unanimous vote
of all members then present, provided that the Board finds that the
rights vested in persons acting in good faith in reliance upon the
reviewed order, decision or determination will not be prejudiced thereby.
