§ 81-B — Permitted action by board of appeals

§ 81-b. Permitted action by board of appeals. 1. Definitions. As used\nin this section:\n (a) "Use variance" shall mean the authorization by the zoning board of\nappeals for the use of land for a purpose which is otherwise not allowed\nor is prohibited by the applicable zoning regulations.\n (b) "Area variance" shall mean the authorization by the zoning board\nof appeals for the use of land in a manner which is not allowed by the\ndimensional or physical requirements of the applicable zoning\nregulations.\n 2. Orders, requirements, decisions, interpretations, determinations.\nThe board of appeals may reverse or affirm, wholly or partly, or may\nmodify the order, requirement, decision, interpretation or determination\nappealed from and shall make such order, requirement, decision,\ninterpretation or determination as in its opinion ought to have been\nmade in the matter by the administrative official charged with the\nenforcement of such ordinance or local law and to that end shall have\nall the powers of the administrative official from whose order,\nrequirement, decision, interpretation or determination the appeal is\ntaken.\n 3. Use variances. (a) The board of appeals, on appeal from the\ndecision or determination of the administrative official charged with\nthe enforcement of such ordinance or local law, shall have the power to\ngrant use variances, as defined herein.\n (b) No such use variance shall be granted by a board of appeals\nwithout a showing by the applicant that applicable zoning regulations\nand restrictions have caused unnecessary hardship. In order to prove\nsuch unnecessary hardship the applicant shall demonstrate to the board\nof appeals that for each and every permitted use under the zoning\nregulations for the particular district where the property is located:\n (i) the applicant cannot realize a reasonable return, provided that\nlack of return is substantial as demonstrated by competent financial\nevidence;\n (ii) the alleged hardship relating to the property in question is\nunique, and does not apply to a substantial portion of the district or\nneighborhood;\n (iii) the requested use variance, if granted, will not alter the\nessential character of the neighborhood; and\n (iv) the alleged hardship has not been self-created.\n (c) The board of appeals, in the granting of use variances, shall\ngrant the minimum variance that it shall deem necessary and adequate to\naddress the unnecessary hardship proven by the applicant, and at the\nsame time preserve and protect the character of the neighborhood and the\nhealth, safety and welfare of the community.\n 4. Area variances. (a) The zoning board of appeals shall have the\npower, upon an appeal from a decision or determination of the\nadministrative official charged with the enforcement of such ordinance\nor local law, to grant area variances as defined herein.\n (b) In making its determination, the zoning board of appeals shall\ntake into consideration the benefit to the applicant if the variance is\ngranted, as weighed against the detriment to the health, safety and\nwelfare of the neighborhood or community by such grant. In making such\ndetermination the board shall also consider:\n (i) whether an undesirable change will be produced in the character of\nthe neighborhood or a detriment to nearby properties will be created by\nthe granting of the area variance;\n (ii) whether the benefit sought by the applicant can be achieved by\nsome method feasible for the applicant to pursue, other than an area\nvariance;\n (iii) whether the requested area variance is substantial;\n (iv) whether the proposed variance will have an adverse effect or\nimpact on the physical or environmental conditions in the neighborhood\nor district; and\n (v) whether the alleged difficulty was self-created, which\nconsideration shall be relevant to the decision of the board of appeals,\nbut shall not necessarily preclude the granting of the area variance.\n (c) The board of appeals, in the granting of area variances, shall\ngrant the minimum variance that it shall deem necessary and adequate and\nat the same time preserve and protect the character of the neighborhood\nand the health, safety and welfare of the community.\n 5. Imposition of conditions. The board of appeals shall, in the\ngranting of both use variances and area variances, have the authority to\nimpose such reasonable conditions and restrictions as are directly\nrelated to and incidental to the proposed use of the property. Such\nconditions shall be consistent with the spirit and intent of the zoning\nordinance or local law, and shall be imposed for the purpose of\nminimizing any adverse impact such variance may have on the neighborhood\nor community.\n