Penfield City Zoning Code
ARTICLE XIV
Variances and Special Use Permits
§ 250-14.1 Purpose.
Where practical difficulties, unnecessary hardships and results inconsistent with the general purposes of this chapter may be the result of the application of the provisions thereof, variances may be granted as provided in this article.
§ 250-14.2 Authorization to grant or deny variances.
Any variance granted from this chapter shall be authorized by the Zoning Board of Appeals in accordance with the standards and procedures set forth in this article. In granting a variance, the Zoning Board of Appeals may impose conditions to protect the best interests of the surrounding property, the neighborhood or the Town as a whole.
§ 250-14.3 Application for variance or special use permit.
A property owner(s) or his/her agent(s) may initiate a request for a variance or special use permit by filing an application with the authorized official using forms provided for such requests by the Town. Such application shall be accompanied by all information deemed necessary by the Zoning Board of Appeals and/or the authorized official and a filing fee as required in the Town's fee schedule, established by resolution by the Town Board consistent with the provisions set forth under Article XV of this chapter.
§ 250-14.4 Circumstances for granting variances.
The Board of Appeals shall have the authority, on appeal from the decision or determination of the Zoning Officer, or otherwise as contemplated by this chapter, to grant use variances and area variances, subject to and upon the terms and conditions set forth herein.
A.
Use variances. No use variance shall be granted unless, in addition to satisfying all other applicable provisions of law and this chapter, the Board of Appeals finds that otherwise applicable zoning regulations and restrictions have caused unnecessary hardship.
(1)
Unnecessary hardship. In order to prove such unnecessary hardship, the applicant is required to clearly demonstrate to the Board of Appeals that, with respect to every permitted use under the zoning regulations for the particular district where the property is located, each and every of the following four criteria is satisfied:
(a)
The applicant cannot realize a reasonable return on the entire parcel of property, and such lack of return is substantial as demonstrated by competent financial evidence;
(b)
The alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood involved;
(c)
The requested use variance, if granted, will not alter the essential character of the neighborhood; and
(d)
The alleged hardship has not been self-created.
(2)
Reasonable rate of return. In evaluating whether the applicant can realize a reasonable rate of return, the Board of Appeals shall examine whether the entire original or expanded property holdings of the applicant are incapable of producing a reasonable rate of return (and not just the site of the proposed project). No use variance shall be granted unless, in addition to satisfying all other applicable provisions of law and this chapter, the Board of Appeals finds that the applicant has clearly demonstrated, by detailed, written "dollar and cents" proof, the inability to obtain a reasonable return for the entire parcel (and not just the site of the proposed project) and for each and every permitted use in the district (including those uses permitted by special use permit).
(3)
Unique hardship. No use variance shall be granted unless, in addition to satisfying all other applicable provisions of law and this chapter, the Board of Appeals finds that the entire parcel of which the project is a part possesses unique characteristics that distinguish it from other properties in the area.
(4)
Essential character of the neighborhood. No use variance shall be granted unless, in addition to satisfying all other applicable provisions of law and this chapter, the Board of Appeals finds that the proposed project will not alter the essential character of the neighborhood.
(a)
In making its determination of whether the proposed project will alter the essential character of the neighborhood, the Board of Appeals shall take into account factors that are of vital importance to the citizens of the Town, including, without limitation:
[1]
The rural residential, agricultural and historic character of the Town;
[2]
Its irreplaceable recreation and tourism sites;
[3]
The extent of hazard to life, limb or property that may result from the proposed project;
[4]
Health impacts;
[5]
The social and economic impacts of traffic congestion, noise, dust, odors, emissions, solid waste generation and other nuisances;
[6]
The impact on property values; and
[7]
Whether the applicant will use a style of development that will result in degradation to the air quality, water quality or scenic and natural resources of the Town.
(b)
In order to find that the proposed project does not alter the essential character of the neighborhood, the Board of Appeals shall interpret the public interest in said essential character of the neighborhood to require, at a minimum, that the project will not do any of the following:
(5)
Self-created hardship. No use variance shall be granted unless, in addition to satisfying all other applicable provisions of law and this chapter, the Board of Appeals finds that the alleged hardship was not self-created. The Board of Appeals may find that the applicant suffers from a self-created hardship in the event that the Board finds that:
(a)
The applicant’s inability to obtain a reasonable return on the property as a whole results from having paid too much or from a poor investment decision;
(b)
The applicant previously divided the property and is left with only a portion which suffers from some unique condition for which relief is sought and which did not apply to the parcel as a whole; or
(c)
When the applicant purchased the property, he/she knew or should have known the property was subject to the zoning restrictions.
(6)
The Board of Appeals, in the granting of use variances, shall grant only the minimum variance that it shall deem necessary and adequate to allow an economically beneficial use of the property, and at the same time preserve and protect the essential character of the neighborhood and the health, safety and welfare of the community.
(7)
The Board of Appeals, in the granting of use variances, shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed project. 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 use variance may have on the neighborhood or community. Such conditions may include, but are not limited to, landscaping, lighting, access and egress, signs, screening, architectural features, location and layout of buildings, limitations upon the use or characteristics of the use which are reasonably related to the public health, safety and general welfare and as may be necessary to carry out the intent of this chapter. If the applicant refuses to accept such requirements and conditions, the use variance shall be denied.
B.
Area variances.
(1)
In making a determination whether to grant, grant conditionally, or deny an application for an area variance, the Board of Appeals shall take into consideration the benefit to the applicant if the area variance is granted, and balance this benefit against the detriment to the health, safety and welfare of the neighborhood or community by making such grant. In making such determination, the Board shall consider each of the following factors:
(a)
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;
(b)
Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;
(c)
Whether the requested area variance is substantial;
(d)
Whether the proposed area variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and
(e)
Whether the alleged difficulty was self-created. (In contrast to the context of a use variance, in the context of an area variance application, whether or not the alleged difficulty was self-created shall be relevant to the decision of the Board of Zoning Appeals but a finding that the difficulty was self-created shall not in and of itself preclude the granting of the area variance.)
(2)
The Board of Appeals, in the granting of area variances, shall grant the minimum area 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)
In addition to the application requirements from time to time established pursuant to law and this chapter, applications for an area variance shall contain a typewritten narrative explaining what the application is for and how the project meets or exceeds all of the criteria for an area variance.
(4)
The Board of Appeals shall, in the granting of 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 area variance may have on the neighborhood or community. If the applicant refuses to accept such requirements and conditions, the area variance shall be denied.
§ 250-14.5 Appeals, variances and special use permits.
A.
Appeals. Any interested or aggrieved party shall have the right to appeal to the Zoning Board of Appeals from any order, requirement, decision or determination made by the Building Official, and said Board shall thereupon hear and determine the same.
B.
Variances on appeal. The Zoning Board of Appeals shall have the power, upon appeal and after public notice and hearing, to vary or modify the application of any of the regulations or provisions of this chapter relating to the use, construction, or alteration of structures, or the use of land, where it shall appear that there are practical difficulties or unnecessary hardships in the carrying out to the strict letter of this chapter, to the end that the spirit of this chapter shall be observed, public safety and welfare secured and substantial justice done.
C.
Special use permits and variances.
(1)
When in its judgment the public convenience and welfare will be served and the appropriate use of neighboring property will not be substantially injured thereby, the Zoning Board of Appeals may, in appropriate and specific cases, after public notice and hearing and subject to appropriate conditions and safeguards, vary the application of the regulations of this chapter and grant exceptions in harmony with their general purpose and intent, as follows:
(a)
Grant a permit whenever it is provided in this chapter that approval of the Zoning Board of Appeals is required or refuse to grant the same where such action is justified.
(b)
Permit such variation of the yards, lot area or lot width requirements of this chapter as may be necessary to secure an appropriate improvement of a parcel of land where such parcel was separately owned or where such parcel was subdivided and recorded in the office of the Clerk of Monroe County at the time of the adoption of this chapter and is of such restricted area or exceptional topography that it cannot be appropriately used or improved without such variation.
(c)
Permit in any district such modification of the requirements of these regulations as to height, yards, lot area and lot width as said Board may deem necessary and proper to secure appropriate development of a lot where adjacent thereto are buildings or structures that do not conform to such regulations.
(d)
Permit the extension of a nonconforming use or structure, provided such use or structure existed at the time this chapter became effective.
(e)
Permit the extension of a structure or use into a more restricted district immediately adjacent thereto, but not more than 50 feet beyond the boundary line of the district in which said structure or use is authorized.
(f)
Permit such modification or variation of the yards, lot area and lot width requirements of this chapter as will permit completion of the development of a tract of land according to the ordinance in effect when such development was first commenced, in instances where a map of a part of such tract has been approved and construction actually commenced prior to the adoption of this chapter.
(2)
Further, all special use permits granted pursuant to this article shall be issued by the Town Clerk at a fee as required by resolution by the Town Board.
§ 250-14.6 Recreational areas.
A.
The authorized official may, on application, grant a temporary permit to be issued by the Town Clerk upon payment of a fee set by resolution by the Town Board, for the use of a specified area in any district for temporary recreational uses, whether operated for profit or not; however, the above shall not apply to personal recreational uses. The authorized official may require the applicant to submit such information as he/she may require and may fix the location of all structures on the premises. Prior to the granting of such permit, the authorized official shall find that the contemplated use will not:
B.
Any permit granted hereunder may be revoked immediately by the Town Clerk upon order of the authorized official, in the event that the use made thereunder violates any of the conditions of its issuance or shall have become a nuisance, and any such permit may be renewed by the authorized official, upon application, in accordance with the procedures for the original permit.
C.
In granting such a permit, the authorized official may attach such conditions and limitations as it considers to be desirable in order to ensure compliance with the application and the purpose of this chapter.