The Board of Appeals, consisting of five members, as constituted and empowered under § 267 of Article 16 of the Town Law on the effective date of this chapter, shall be continued. Vacancies occurring in such Board shall be filled in accordance with the Town Law. The Board of Appeals shall have all the powers and perform all the duties prescribed by statute and by this chapter.
The Board of Appeals shall hear and decide appeals where it is alleged that there is an error or misrepresentation in any order, requirement, decision or determination by any administrative official of the Town of Cheektowaga charged with the enforcement of the provisions of this chapter. The Board of Appeals may reverse, modify or affirm, in whole or in part, any such appealed order, requirement, decision or determination appealed from, and may make such order, requirement, decision or determination as in its opinion ought to be made in strictly applying and interpreting the provisions of this chapter, and for such purposes shall have all the powers of the officer from whom the appeal is taken.
A. 
On an appeal from an order, requirement, decision or determination of any administrative official charged with the enforcement of this chapter, where it is alleged by the appellant that there are practical difficulties or unnecessary hardship in the way of carrying out the strict application of any provision of this chapter, the Board of Appeals may grant a variance from the strict application of such provisions, provided that the findings of the Board of Appeals are consistent with the following:
B. 
Variances defined. The following define the two types of variances which the Zoning Board of Appeals has the power to grant and the criteria which the Zoning Board of Appeals must consider in order to grant each type of variance:
(1) 
"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. 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.
(a) 
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 area 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.
(b) 
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.
(2) 
"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. No such use variance shall be granted by the 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:
(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.
C. 
The Board of Appeals, in the granting of the 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.
D. 
Imposition of conditions. The Board of Appeals shall, in the granting of both use variances and area variances, have authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed use of the property, or the period of time such variance shall be in effect. 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 variance may have on a neighborhood or community, public safety secured and substantial justice done. Such conditions or restrictions shall be incorporated in the building permit and certificate of zoning compliance.
A. 
The Board of Appeals shall hear and decide, in accordance with the provisions of this article, all applications for special permits or for modifications of provisions of this chapter in all such cases upon which the Board of Appeals is specifically authorized to pass, or to make any other determination required by this chapter.
B. 
In authorizing any specified special permit or specified modification, or in making any required determination, all required findings shall be made, and, in the case of special permits or modifications, the Board of Appeals may prescribe appropriate conditions to minimize adverse effects on the character of the surrounding area and to safeguard the public health, safety, convenience or general welfare.
C. 
No special permit or modification of the provisions of this chapter shall be authorized by the Board of Appeals unless, in addition to other findings specified in this chapter, it finds that such special permit or modification:
(1) 
Will be in harmony with the general purposes and intent of this chapter.
(2) 
Will not tend to depreciate the value of adjacent property.
(3) 
Will not create a hazard to health, safety or the general welfare.
(4) 
Will not alter the essential character of the neighborhood nor be detrimental to the residents thereof.
(5) 
Will not otherwise be detrimental to the public convenience and welfare.
A. 
Temporary structures or uses (not including signs). The Board of Appeals may authorize a temporary and revocable permit for not more than two years for uses or structures that do not conform with the regulations of this chapter for the district in which they are located, provided that the following findings are made:
(1) 
That such use is of a temporary nature and does not involve the erection or enlargement of any permanent structure.
(2) 
In case of a renewal of such permit, that all conditions and safeguards previously required have been complied with.
B. 
Permitted temporary structures or uses; extension of time limit. The Board of Appeals may authorize the continuation of temporary structures or uses incidental to construction work, provided that the following findings are made:
(1) 
That the nature and scale of the construction is such as to require a longer period of time for completion.
(2) 
That such construction has been diligently prosecuted or that any delays have been unavoidable.
A. 
Rules of conduct and procedure. The Board of Appeals, consistent with law and ordinance, may adopt rules of conduct and procedure.
B. 
Filing appeals. An appeal to the Board of Appeals from any ruling of any administrative officer charged with the enforcement of this chapter may be taken by any person aggrieved or by any officer, department, board or bureau of the Town. Such appeal shall be taken, within such time as shall be prescribed by the Board of Appeals by general rule, by filing with the officer from whom the appeal is taken and with the Board of Appeals a notice of appeal, specifying the ground thereof. The officer from whom the appeal is taken shall forthwith transmit to the Board of Appeals all the papers constituting the record upon which the action appealed from was taken.
C. 
Filing applications. An application for any matter upon which the Board of Appeals is required to pass may be made to the Town Clerk, along with a filing fee as set by Town Board resolution, by the owner or tenant of the property (or a duly authorized agent) for which such appeal or application is sought.
D. 
Meetings, witnesses and records.
(1) 
Meetings of the Board of Appeals shall be held at the call of the Chairman and on the third Wednesday of each month at 7:30 p.m. in the Council Chambers of the Cheektowaga Town Hall. All meetings shall be open to the public. The Chairman of the Board of Appeals or, in his absence, the Acting Chairman may administer oaths and compel the attendance of witnesses.
(2) 
The Board of Appeals shall keep minutes of its proceedings, showing the vote of each member upon every question or, if absent or failing to vote, indicating such fact, and shall keep records of its examination and other official action. Every rule, regulation, amendment or repeal thereof and every order, requirement, decision or determination of the Board of Appeals shall immediately be filed in the office of the Town Clerk and shall be a public record.
E. 
Stay of proceedings. Any appeal to the Board of Appeals shall stay all proceedings in furtherance of the action appealed from, except as otherwise provided in Subdivision 4 of § 267 of the Town Law.[1]
[1]
Editor's Note: See also Town Law § 267-a, Subdivision 6.
F. 
Public hearing. The Board of Appeals shall fix a reasonable time for a hearing of an appeal, applications for special permits or modifications or regulations, or other matters referred to it, and shall give public notice thereof in accordance with the provisions of Subdivision 5 of § 267 of the Town Law.[2]
[2]
Editor's Note: See also Town Law § 267-a, Subdivision 7.
G. 
Decisions of the Board of Appeals.
(1) 
The concurring vote of a majority of the members of the Board of Appeals shall be necessary to reverse any order, requirement, decision or determination appealed from, to decide in favor of the applicant any matter upon which it is required to pass under this chapter, or to effect any variation in this chapter.
(2) 
Every decision of the Board of Appeals shall be by resolution. Where findings are required, the decision shall set forth each required finding, supported by substantial evidence or other data considered by the Board of Appeals in each specific case, or, in the case of denial, the decision shall include the findings which are not satisfied.
Any variance, special permit or modification of regulations authorized by the Board of Appeals shall be automatically revoked unless a building permit conforming to all the conditions and requirements established by the Board of Appeals is obtained within six months of the date of approval by the Board of Appeals and construction is commenced within one year of such date of approval.
Failure to comply with any condition or restriction prescribed by the Board of Appeals in approving any appeal for a variance, application for a special permit or a modification of regulations shall constitute a violation. Such violation may constitute the basis for revocation of a variance, special permit or modification, or for imposing penalties and other applicable remedies.
There shall be no rehearing of an appeal or application by the Board of Appeals, except in accordance with Article 16, § 267, Subdivision 6, of the Town Law.[1]
[1]
Editor's Note: See also Town Law § 267-a, Subdivision 12.