[Amended 1-23-1973; 11-12-1974; 2-13-1990; 11-24-1992; 6-24-2010]

A. Use variances. Pursuant to § 267-b(2) of the Town Law, no use variance shall be granted by the Board of Zoning 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 that for each and every permitted use under the zoning regulations for the particular district where the property is located:

(1) The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence:

(2) 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;

(3) That the requested use variance, if granted, will not alter the essential character of the neighborhood; and

(4) That the alleged hardship has not been self-created.

B. Area variances. Pursuant to § 267-b(3) of the Town Law, in making its determination, the Board of Zoning Appeals shall take into consideration the benefit to the applicant if the variance is granted, as weighted against the detriment to the health, safety and welfare of the neighborhood or community by such grant, and:

(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 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 consideration shall be relevant to the decision of the Board, but shall not necessarily preclude the granting of the area variance.

C. The Board 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.

D. In cases where the lot does not meet the area and/or frontage requirements, the Board shall not grant more than three variances.

E. The Board may authorize the change of a certificate of existing use so as to permit a use not otherwise permitted, provided that the Board determines that the change would be beneficial to the community.

F. In cases where the appeal is in the form of a request for an interpretation of a word or words, the Board shall consider the intent of the provision in question and also the definition of terms as described in the Town Code, professional publications, and standard references.

G. In cases where the appeal is in the form of a request for a determination of the precise location of a district boundary line, the Board shall consider public records on file in the Town.

H. Development in flood hazard zones.

(1) In passing upon such applications, the Board shall consider all technical evaluations, all relevant factors, standards and specified in other sections of this chapter and:

(a) The danger that materials may be swept onto other lands to the injury of others.

(b) The danger to life and property due to flooding or erosion damage.

(c) The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner.

(d) The importance of the services provided by the proposed facility to the Town.

(e) The necessity to the facility of a waterfront location, where applicable.

(f) The availability of alternative locations for the proposed use that are not subject to flooding or erosion damage.

(g) The compatibility of the proposed use with existing and anticipated development.

(h) The relationship of the proposed use to the Comprehensive Plan and floodplain management program of that area.

(i) The safety of access to the property in times of flood for ordinary and emergency vehicles.

(j) The costs to local governments and the dangers associated with conducting search and rescue operations during periods of flooding.

(k) The expected heights, velocity, duration, rate of rise and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site.

(l) The costs of providing governmental services during and after flood conditions, including search and rescue operations, maintenance and repair of public utilities and facilities such as sewer, gas, electrical and water systems and streets and bridges.

(2) Generally, variances may be issued for new construction and substantial improvements to be erected on a lot of 1/2 acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, provided that the items in § 322-83H(1)(a) through (l) have been fully considered.

(3) Variances may be issued for the repair or rehabilitation of historic structures upon determination that:

(a) The proposed repair or rehabilitation will not preclude the structure's con tinued designation as an historic structure.

(b) The variance is the minimum necessary to preserve the historic character and design of the structure.

(4) Variances may be issued for new construction and substantial improvements and for other development necessary for the conduct of a functionally dependent use, provided that:

(a) The criteria of Subsection H(6) of this section are met.

(b) The structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threat to public safety.

(5) Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.

(6) Variances shall be issued only upon receiving written justification of:

(a) A showing of good and sufficient cause.

(b) A determination that failure to grant the variance would result in exceptional hardship to the applicant.

(c) A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety or extraordinary public expense, create nuisances, cause fraud on or victimization of a public or conflict with existing local laws or ordinances.

(7) Any applicant to whom a variance is granted for a building with the lowest floor below the base flood elevation shall be given written notice over the signature of a Clerk to the Board that the cost of flood insurance will be commensurate with the increased risk resulting from lowest-floor elevation.