2023 New York Laws › GCT - General City › Article 5-A - Buildings and Use Districts › 81-B - Permitted Action by Board of Appeals.

§ 81-b. Permitted  action by board of appeals. 1. Definitions. As used
in this section:
(a) "Use variance" shall mean the authorization by the zoning board of
appeals for the use of land for a purpose which is otherwise not allowed
or is prohibited by the applicable zoning regulations.
(b) "Area variance" shall mean the authorization by the  zoning  board
of  appeals  for the use of land in a manner which is not allowed by the
dimensional  or  physical  requirements   of   the   applicable   zoning
regulations.
2.  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 ordinance or 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.
3.  Use  variances.  (a)  The  board  of  appeals,  on appeal from the
decision or determination of the administrative  official  charged  with
the  enforcement of such ordinance or 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:
(i)  the  applicant  cannot realize a reasonable return, provided that
lack of return is substantial as  demonstrated  by  competent  financial
evidence;
(ii)  the  alleged  hardship  relating  to the property in question is
unique, and does not apply to a substantial portion of the  district  or
neighborhood;
(iii)  the  requested  use  variance,  if  granted, will not alter the
essential character of the neighborhood; and
(iv) 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.
4.  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 ordinance
or 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:
(i) 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;
(ii)  whether  the  benefit sought by the applicant can be achieved by
some method feasible for the applicant to pursue,  other  than  an  area
variance;
(iii) whether the requested area variance is substantial;
(iv)  whether  the  proposed  variance  will have an adverse effect or
impact on the physical or environmental conditions in  the  neighborhood
or district; and
(v)   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.
5. 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
ordinance or local  law,  and  shall  be  imposed  for  the  purpose  of
minimizing any adverse impact such variance may have on the neighborhood
or community.