2023 New York Laws › TWN - Town › Article 16 - Zoning and Planning › 267-B - Permitted Action by Board of Appeals.

§   267-b.   Permitted   action   by  board  of  appeals.  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
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.
2. 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,
(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  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.
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  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: (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
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.