Elmira City Zoning Code
ARTICLE XII
Zoning Board of Appeals
§ 217-104 Establishment and membership.
Pursuant to New York State Town Law, the Town Board shall appoint a Zoning Board of Appeals consisting of five members, shall designate its Chairperson, and also provide for such expenses as may be necessary and proper. A member of the Zoning Board of Appeals shall not at the same time be a member of the Town Board. The Town Board shall have the power to remove any member of the Zoning Board of Appeals for cause and after public hearing.
§ 217-105 Staff.
The Zoning Board of Appeals may employ such clerical or other staff assistance as may be necessary, and prescribe their duties, provided that it shall not at any time incur expenses beyond the amount of the appropriations made by the Town Board and then available for that purpose.
§ 217-106 Powers and duties.
The Zoning Board of Appeals shall have the following powers and duties:
A.
Appeals. The Zoning Board of Appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, interpretation or determination appealed from and shall issue such order, requirement, decision, interpretation or determination as in its opinion ought to have been made in the matter by the Code Enforcement Officer, and to that end shall have all of the powers of the Code Enforcement Officer.
B.
Variances. The Zoning Board of Appeals, on an appeal from a decision or determination of the Code Enforcement Officer, shall have the power to grant area and use variances as defined herein.
§ 217-107 Use variances.
B.
Criteria for review. No use variance shall be granted by the Zoning Board of Appeals without a showing by the applicant that the zoning regulations and restrictions have caused unnecessary hardship. In order to prove such unnecessary hardship, the applicant shall demonstrate the following to the Zoning Board of Appeals; that for each and every permitted use under this chapter for the particular district in which the property is located:
(1)
The applicant cannot realize a reasonable return, provided that lack of return is substantial and 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 is not self-created.
§ 217-108 Area variances.
A.
Definition. An area variance is an authorization by the Zoning Board of Appeals for the use of land in a manner which is not allowed by dimensional or physical requirements of the applicable zoning regulations.[1]
B.
Criteria for review. In making the 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 general welfare of the neighborhood or community by such grant. In making such determination, the Board shall consider the following:
(1)
Whether an undesirable change will be produced in the character of the neighborhood or community 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 is relevant to the decision, but shall not necessarily preclude the granting of the variance.
§ 217-109 Grant of variance.
A.
The Zoning Board of Appeals, in granting an area or use variance, shall grant the minimum variance that it deems 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 health, safety and general welfare of the community.[1]
B.
The Zoning Board of Appeals shall, in granting an area or use variance, have the authority to impose such reasonable conditions and restrictions as are related to and incidental to the proposed use of property.
§ 217-110 Referral to Planning Board.
The Zoning Board of Appeals shall refer all area and use variances to the Town of Elmira Planning Board at least 30 days prior to the scheduled hearing date. The Planning Board shall report its recommendation to the Zoning Board of Appeals at least five days prior to the hearing date.
§ 217-111 Rules of procedure, bylaws and forms.
The Zoning Board of Appeals shall have the power to make, adopt, and promulgate such written rules of procedure, bylaws, and forms as it may deem necessary for the proper execution of its duties and to secure the intent of this chapter.