N.Y. Town Law § 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.