§ 267-B — Permitted action by board of appeals

§ 267-b. Permitted action by board of appeals. 1. Orders,\nrequirements, decisions, interpretations, determinations. The board of\nappeals may reverse or affirm, wholly or partly, or may modify the\norder, requirement, decision, interpretation or determination appealed\nfrom and shall make such order, requirement, decision, interpretation or\ndetermination as in its opinion ought to have been made in the matter by\nthe administrative official charged with the enforcement of such\nordinance or local law and to that end shall have all the powers of the\nadministrative official from whose order, requirement, decision,\ninterpretation or determination the appeal is taken.\n 2. 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(1) the applicant cannot realize a reasonable return, provided that lack\nof return is substantial as demonstrated by competent financial\nevidence; (2) that the alleged hardship relating to the property in\nquestion is unique, and does not apply to a substantial portion of the\ndistrict or neighborhood; (3) that the requested use variance, if\ngranted, will not alter the essential character of the neighborhood; and\n(4) that 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 3. 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: (1) whether an undesirable\nchange will be produced in the character of the neighborhood or a\ndetriment to nearby properties will be created by the granting of the\narea variance; (2) whether the benefit sought by the applicant can be\nachieved by some method, feasible for the applicant to pursue, other\nthan an area variance; (3) whether the requested area variance is\nsubstantial; (4) whether the proposed variance will have an adverse\neffect or impact on the physical or environmental conditions in the\nneighborhood or district; and (5) whether the alleged difficulty was\nself-created, which consideration shall be relevant to the decision of\nthe board of appeals, but shall not necessarily preclude the granting of\nthe 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 4. 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