Authorization.
Where practical difficulties, unnecessary hardships and results inconsistent with the general purposes of this chapter may result from the strict application of certain provisions thereof, variances may be granted as provided in this article.
Agency responsible; standards.
Any permitted variance to this chapter shall be authorized by the Town Zoning Board of Appeals in accordance with the standards and procedures set forth in
Article IV: Special Permit Uses. In granting a variance, the Zoning Board of Appeals may impose conditions similar to those provided for special permit uses in
§ 500-30: Massage business to protect the best interests of the surrounding property, the neighborhood or the Town as a whole.
Application procedure.
A property owner(s) or his agent(s) may initiate, a request for a variance by filing an application, executed by the property owner, with the authorized official of the Building Department using forms prescribed pursuant to
§ 500-84: Forms. Such application shall be accompanied by a legal description of the property, a map showing the property and all properties within a radius of 500 feet of the exterior boundaries thereof, plans and elevations necessary to show the proposed variance, other drawings or information necessary to an understanding of the proposed use and its relationship to surrounding properties and a filing fee as required in
§ 500-85: Filing procedure and fees, no part of which is returnable.
Conditions required.
A. A variance may be granted only in the event that all of the following circumstances exist:
(1) Use variances.
(a) The Board of Appeals, on appeal from the decision or determination of the administrative official charged with the enforcement of this chapter, shall have the power to grant use variances, as defined in Town Law § 267, Subdivision 1.
(b) No such use variance shall be granted by the 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] 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] The requested use variance, if granted, will not alter the essential character of the neighborhood; and
[4] 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.
(2) 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 this chapter, to grant area variances as Town Law § 267, Subdivision 1.
(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.
(3) 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 this chapter, and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.
B. Circumstances for granting variances within the FPO Floodplain Overlay or FW Floodway Districts. The following shall be considered when making a determination on variances within the FW or FPO Districts:
(1) Variances may be issued for the reconstruction, rehabilitation or restoration of structures listed on the National Register of Historic Places or the State Inventory of Historic Places, without regard to the procedures set forth in the remainder of this subsection.
(2) Variances shall not be issued within any designated floodway if any increase in flood levels during the base flood discharge would result.
(3) Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.
(4) Variances shall only be issued upon:
(a) A showing of good and sufficient cause;
(b) A determination that failure to grant the variance would result in exceptional hardship to the applicant; and
(c) A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public or conflict with other existing local laws or ordinances.
(5) Any applicant to whom a variance is granted shall be given written notice that the structure will be permitted to be built with a lowest floor elevation below the base flood elevation and that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation.
Hearing.
Before the Zoning Board of Appeals may act on a request for a variance, it shall hold a public hearing. Notice of said hearing shall be given as provided in
§ 500-86: Notice and conduct of public hearings.
Notification of decision.
The Zoning Board of Appeals shall notify the applicant for a variance, in writing, of the Zoning Board of Appeals decision within five days after the decision has been rendered.
See
Article IX: Variances for more information.
