Section 7-712-B. Permitted action by board of appeals  


Latest version.
  • 1.  Orders,
      requirements, decisions, interpretations, determinations. The  board  of
      appeals  may  reverse  or  affirm,  wholly  or partly, or may modify the
      order, requirement, decision, interpretation or  determination  appealed
      from and shall make such order, requirement, decision, interpretation or
      determination as in its opinion ought to have been made in the matter by
      the  administrative  official charged with the enforcement of such local
      law and to that end shall have all  the  powers  of  the  administrative
      official  from  whose  order,  requirement,  decision, interpretation or
      determination the appeal is taken.
        2. Use variances. (a)  The  board  of  appeals,  on  appeal  from  the
      decision or determination of the administrative officer charged with the
      enforcement  of  such  local  law,  shall  have  the  power to grant use
      variances, as defined herein.
        (b) No such use variance shall  be  granted  by  a  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 to the board
      of appeals that for each  and  every  permitted  use  under  the  zoning
      regulations  for  the particular district where the property is located,
      (1) 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 proved 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.
        3.  Area  variances.  (a)  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 such local law,
      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.
        4. 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 the zoning
      local  law,  and  shall  be  imposed  for  the purpose of minimizing any
      adverse impact such variance may have on the neighborhood or community.