The purpose of this article is to provide for
variances from this chapter in cases where the strict application
thereof would result in practical difficulties or unnecessary hardships
inconsistent with the general purpose and objectives of this chapter.
Any variance to this chapter shall be granted
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 similar to those provided
for site plan review uses to protect the best interests of the surrounding
property, the neighborhood and the Town as a whole.
[Amended 2-20-1997; 3-8-2000]
A. Area variance. The Zoning Board of Appeals shall have
the power, upon an appeal from a decision or determination of the
Zoning Administrator, to grant area variances as defined herein.
(1) 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:
(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 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,
which consideration shall be relevant to the decision of the Board
of Appeals, but shall not necessarily preclude the granting of the
area variance.
(2) The Board of Appeals, in 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.
B. Use variance. 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.
(1) No such use variance shall be granted by a Board of
Appeals without a showing by the applicant that the 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:
(a)
The applicant cannot realize a reasonable return,
provided that lack of return is substantial as demonstrated by competent
financial evidence;
(b)
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;
(c)
That the requested use variance, if granted,
will not alter the essential character of the neighborhood; and
(d)
That the alleged hardship has not been self-created.
(2) The Board of Appeals, in 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.
C. Conditions. Imposition of conditions. The Board of
Appeals shall, in 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, and/or the period of time such variance shall be in effect.
Such condition shall be consistent with the spirit and intent of the
Zoning Chapter, and shall be imposed for the purpose of minimizing
any adverse impact such variance may have on the neighborhood or community.