The Board of Appeals shall have the authority
to call upon any department, agency or employee of the City for such
assistance as shall be deemed necessary and as shall be authorized
by City Council. Such department, agency or employee may be reimbursed
for any expenses incurred as a result of such assistance.
The Board of Appeals, on an appeal from the
decision or determination of the administrative official charged with
the enforcement of this chapter, shall have the power to grant use
variances, as defined herein:
A. No such use variance shall be granted 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 this particular district where property is located:
(1)
The applicant can not realize a reasonable return,
provided that lack of return is substantial as demonstrated by competent
financial evidence;
(2)
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)
The requested use variance, if granted, will
not alter the essential character of the neighborhood; and
(4)
The alleged hardship has not been self-created.
B. 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.
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 this chapter, to grant area
variances as defined herein:
A. In making its determination, the Board of Appeals
shall consider 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. In making such determination the
Board shall also consider:
(1)
Whether the granting of such variance will result
in an undesirable change in the character of the neighborhood;
(2)
Whether the granting of such variance will be
a detriment to nearby properties;
(3)
Whether the benefit sought by the applicant
can be achieved by feasible means other than the area variance;
(4)
Whether the requested area variance is excessive;
(5)
Whether the granting of such variance will have
an adverse effect or impact on the physical or environmental conditions
in the neighborhood or district; and
(6)
Whether the alleged difficulty was self-created,
in which consideration shall be relevant but not necessarily preclude
the granting of the area variance.
B. 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,
health, safety and welfare of the neighborhood and the community.
The Board of Appeals shall hear and decide all
applications for special use permits in all such cases upon which
the Board of Appeals is specifically authorized to do so. All uses
listed as subject to a special use permit authorized by the Board
of Appeals are declared to possess characteristics of such unique
and special form that each use shall be considered as an individual
case. Such uses shall be deemed to be permitted uses in their respective
districts, subject to the requirements hereof:
A. Should a particular site involved in such application
be deemed wholly inadequate for the proposed use, the Board of Appeals
may deny the application in total.
B. A special use permit shall be authorized by the Board
of Appeals, provided that all of the following findings are made:
(1)
Such use shall be in harmony with the general
purpose and intent of this chapter, taking into account the location
and size of use, the nature and intensity of the operations involved
in or conducted in connection with it and the size of the site in
respect to streets giving access thereto;
(2)
Such use shall not tend to depreciate the value
of adjacent property, taking into account the possibility of screening
or other protective measures to protect adjacent properties in any
R District;
(3)
Such use shall not create a hazard to health,
safety or general welfare;
(4)
Such use shall not alter the essential character
of the neighborhood nor be detrimental to the residents thereof; and
(5)
Such use shall not otherwise be detrimental
to the public convenience or welfare.
The Board of Appeals shall, in the granting
of both variances and special use permits, 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 or special use permit may have on the neighborhood or
community.
No person, firm or corporation shall appeal
the same determination more than once in any twelve-month period.
However, the Board of Appeals may, after a unanimous vote of all members
present, rehear any order, determination or decision of the Board
of Appeals. Such hearing is subject to the same notification provisions
as an original hearing. Upon such rehearing, the Board may reverse,
modify or annul its original decision upon a 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 reheard
order, decision or determination will not be prejudiced thereby.
[Amended 2-10-2006 by L.L. No. 2-2006; 8-28-2017; 11-25-2019 by L.L. No. 1-2020]
In the event that the applicant wishes to appeal
the decision of the Board of Appeals, said applicant shall have 30
days from the date of filing the decision in the office of the City
Clerk/Treasurer in which to commence special proceedings pursuant
to the provisions of Article 78 of the Civil Practice Law and Rules.
Failure to comply with any condition or restriction
prescribed by the Board of Appeals in approving an appeal for a variance
or special use permit shall constitute a violation. Such violation
shall be sufficient grounds for the revocation of any variance or
special use permit or for the imposition of penalties and other applicable
remedies.