N.Y. General City Law § 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.