2023 New York Laws › VIL - Village › Article 7 - Building Zones › 7-712-B - Permitted Action by Board of Appeals.

§   7-712-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 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.