[Amended 3-4-2015 by L.L.
No. 3-2015]
The Board of Appeals shall exercise all the
powers and duties in the manner now and hereafter prescribed by law,
including the following:
A. Interpretation: On appeal from a determination of
the Enforcement Officer or Zoning Enforcement Officer, or on referral
or upon request from the Town Planning Board or Town Board, may hear
and decide questions involving the interpretation of any provision
of this chapter.
B. Variances. On appeal from a determination of the Planning
Board or the Zoning Enforcement Officer, may hear and decide variances
as detailed below:
(1) Use variances:
(a)
The Board of Appeals, on appeal from the decision
or determination of the Enforcement Officer or Zoning Enforcement
Officer, shall have the power to grant use variances, as defined herein.
(b)
No such use variance shall be granted by the
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
the following to the Board of Appeals:
[1]
That for each and every permitted use under
the zoning regulations for the particular district where the property
is located, 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 Enforcement
Officer or Zoning Enforcement Officer, 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.
(3) Imposition of conditions: The 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.
[Amended 6-17-2008 by L.L. No. 2-2008]
The Board of Appeals shall fix a reasonable
time for the public hearing of the appeal or other matters referred
to it and give public notice thereof by the publication in the official
paper of a notice of such hearing, at least five days prior to the
date thereof, and shall, at least five days before such hearing, mail
notices thereof to the parties and to the regional state park commission
having jurisdiction over any state park or parkway within 500 feet
of the property affected by such appeal. The Board shall decide the
appeal or other matter referred to it within 62 days after the final
hearing. The ZBA shall notify, personally or by certified or registered
mail at least 10 days prior to such hearing, all owners of property
who abut, are adjacent to or are situated across an established road
from the proposed boundary lines of the property which is the subject
of the hearing and shall also notify such other persons as the ZBA
may determine. Upon the hearing, any party may appear in person or
by agent or by attorney. The Board of Appeals may reverse or affirm,
wholly or partly, or may modify the order, requirement, decision or
determination appealed from and shall make such order, requirement,
decision or determination as in its opinion ought to be made in the
premises and, to that end, shall have all powers of the officer from
which the appeal is taken.