2006 New York Code - 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.