General rules - appeals, variances. Appeals from orders, decisions,
requirements, interpretations, determinations of Code Enforcement
Officer. The Zoning Board of Appeals is vested with the authority
to interpret the provisions of this chapter on a written appeal from
a written decision, determination, order, requirement or interpretation
made by the Code Enforcement Officer. As such, the Zoning Board of
Appeals may reverse or affirm, wholly or partly, or may modify the
written decision, determination, order, requirement or interpretation
appealed from, and shall make such decision, determination, order,
requirement, or interpretation as in its opinion ought to have been
made in the matter by the Code Enforcement Officer. Such action by
the Zoning Board of Appeals shall be referred to herein as an interpretation.
In so doing, the Zoning Board of Appeals shall have all the powers
of the administrative official from whose written decision, determination,
order, requirement, or interpretation the appeal is taken.
(1) Authorization for Zoning Board of Appeals to grant variances. In accordance with Section 267-b of the Town Law of the State of New York, the Zoning Board of Appeals shall have the power, upon appeal from a determination by the Code Enforcement Officer, and after public notice and hearing, to vary or modify the application of any of the provisions of this chapter relating to the use, construction, or alteration of structures or the use of land, so that the spirit of this chapter is observed, public safety and welfare secured, and substantial justice done. The Zoning Board of Appeals shall also have the power to vary or modify the dimensional or area requirements and restrictions of this chapter upon referral from the Planning Board and without a written decision or determination made by the Code Enforcement Officer in the case of a site plan, special use permit or subdivision application that the Planning Board has before it. The specific standards for the grant of use and area variances are set forth below. The definitions of use and area variances are set forth in Article
XV of this chapter.
(2) Method of appeal. Such appeal may be taken by any person aggrieved
by the written decision, determination, order, requirement or interpretation
made by the Code Enforcement Officer or by an officer, department,
board or bureau of the Town. The determination of whether an applicant
is aggrieved shall be determined by the Zoning Board of Appeals, after
hearing, as part of the appeal process set forth below.
(a)
Use variances.
[1]
The Zoning Board of Appeals, on appeal from a decision or determination
of Code Enforcement Officer, shall have the power to grant use variances,
authorizing a use of the land which otherwise would not be allowed
by this chapter.
[2]
No use variance shall be granted without a showing by the applicant
that applicable zoning regulations and restrictions have caused unnecessary
hardship. To prove unnecessary hardship the applicant shall demonstrate
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 land use area 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 Zoning Board of Appeals, in granting use variances, 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.
[4]
The Zoning Board of Appeals shall consider any agricultural
data statement and whether the variance would have an undue adverse
impact on the farm operations identified by the agricultural data
statement.
[5]
Imposition of conditions. The Zoning Board of Appeals shall,
in granting area variances, impose such reasonable conditions and
restrictions as are related to and incidental to the proposed use
of the property or the period of time such variance shall be in effect.
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 the variance may have on the neighborhood or community.
(b)
Area variances.
[1]
The Zoning Board of Appeals shall have the power, upon an appeal
from a determination of the Code Enforcement Officer, or upon the
referral from the Planning Board with respect to a site plan, special
use permit or subdivision application it has before it, that the applicant's
proposal can not be approved by reason of its failure to meet the
dimensional or area regulations of this chapter, to grant area variances
from the area or dimensional requirements of this chapter.
[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 of such grant. In making
this 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 land use area or overlay area; and
[e] Whether the alleged difficulty was self-created,
which shall be relevant to the decision of the Board, but which shall
not necessarily preclude the granting of the area variance.
[3]
The Zoning Board of Appeals, in granting of area variances,
shall grant the minimum variance that it deems necessary and adequate,
while preserving and protecting the character of the neighborhood
and the health, safety, and welfare of the community.
[4]
Imposition of conditions. The Zoning Board of Appeals shall,
in granting area variances, impose such reasonable conditions and
restrictions as are related to and incidental to the proposed use
of the property or the period of time such variance shall be in effect.
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 the variance may have on the neighborhood or community.