A.
Purpose. The purpose of the variance process is to provide a narrowly circumscribed means by which relief may be granted from unforeseen applications of this chapter that create practical difficulties or particular hardships.
B.
Initiation. An applicant may only propose a variance for property under his/her control.
C.
Authority. The Zoning Board of Appeals will take formal action on variances.
D.
Procedure.
1.
Action by Zoning Board of Appeals.
a.
Upon receipt of a complete application, the Zoning Board of Appeals will consider the variance at a public hearing.
b.
The Zoning Board of Appeals must evaluate the application based upon the evidence presented at the public hearing, pursuant to the approval standards of this section.
c.
In rendering its decision on any application, the Zoning Board of Appeals must comply with all applicable provisions of the State Environmental Quality Review Act under Article 8 of the Environmental Conservation Law and its implementing regulations.
d.
Within 62 days of the close of the public hearing, the Zoning Board of Appeals must either approve, approve with conditions, or deny the variance.
e.
The Zoning Board of Appeals, in granting a use or area variance, will grant the minimum variance it deems necessary and adequate while, at the same time, preserving and protecting the character of the neighborhood and the health, safety and welfare of the community.
f.
Every variance must be signed and dated by the Chairperson and must document the circumstances of the application and the findings on which the decision is based.
g.
Every variance decision must be filed in the office of the City Clerk within five business days thereof and a copy provided to the applicant and to the Building Department.
2.
Conditions. The Zoning Board of Appeals, in granting a use or area variance, has the authority to impose such reasonable conditions and restrictions as are directly related, and incidental, to the proposed use of the property. Such conditions must be consistent with the spirit and intent of this chapter and are imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.
3.
Expiration and extensions.
a.
Unless otherwise specified or extended by the Zoning Board of Appeals, a variance approval expires 18 months following the filing date of such decision if the applicant has not complied with any required conditions and started actual construction, or otherwise implemented this approval. Actual construction is defined as the fastening or placing of construction materials in a permanent manner, the excavation of a basement, or the demolition or removal of any existing structure if no new construction is approved.
b.
The Zoning Board of Appeals may grant up to two eighteen-month extensions for an approved variance provided that the application for extension was properly submitted prior to the expiration date of either the original variance or the first extension. When requesting an extension, it is the applicant's responsibility to prove that there have been no significant changes to the site or neighborhood and that the circumstances and findings of fact by which the original approval was granted have not significantly changed.
E.
Variance types and approval standards.
1.
Area variance.
a.
An area variance provides relief from the dimensional or physical requirements imposed by the applicable zoning regulations. An area variance does not authorize any change in the type of use of the property.
b.
In making its determination whether to grant an area variance, the Zoning Board of Appeals will 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 Zoning Board of Appeals will also consider:
(i)
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.
(ii)
Whether the benefit sought by the applicant can be achieved by some method feasible for the applicant to pursue, other than an area variance.
(iii)
Whether the requested area variance is substantial.
(iv)
Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.
(v)
Whether the alleged difficulty was self-created, which is relevant to the decision of the Zoning Board of Appeals, but does not necessarily preclude the granting of an area variance.
2.
Use variance.
a.
A use variance provides relief to allow the use of land for a purpose that is otherwise not allowed or is prohibited by the applicable zoning regulations.
b.
The Zoning Board of Appeals will not grant a use variance unless the applicant has demonstrated that applicable zoning regulations and restrictions have caused unnecessary hardship. In order to prove unnecessary hardship, the applicant must demonstrate that for each and every permitted use for the particular district where the property is located:
(i)
The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence.
(ii)
The alleged hardship relating to the property in question is unique and does not apply to a substantial portion of the district or neighborhood.
(iii)
The requested use variance, if granted, will not alter the essential character of the neighborhood.
(iv)
The alleged hardship has not been self-created.
F.
Procedure to rehear. In order to rehear an appeal previously determined by the Zoning Board of Appeals, the following must occur:
1.
A Zoning Board of Appeals member must move to formally rehear the appeal.
2.
A unanimous vote of all Zoning Board of Appeals members present must approve the motion to rehear.
3.
The appeal shall be subject to the same notice provisions as an original hearing.
4.
The Zoning Board of Appeals may reverse, modify or annul its original decision provided the Zoning Board of Appeals finds that the rights vested in persons acting in good faith reliance upon the reheard order, decision or determination will not be prejudiced thereby.
5.
A unanimous vote of all Zoning Board of Appeals members present is required to reverse, modify, or annul its original decision.
G.
Planning Board recommendation. Pursuant to General City Law § 33, Subdivision 6, if a proposed subdivision plat contains one or more lots that do not comply with this chapter and, therefore, requires an area variance, then the Zoning Board of Appeals will request that the Planning Board provide a written recommendation concerning the proposed variance.