§ 85-57. Powers and duties.

The Board of Zoning Appeals shall have the following powers and duties:

A. 

Special permits.

(1) 

To ensure special permits for any of the areas for which this chapter requires the obtaining of such permits from the Board of Zoning Appeals. In granting such permits, the Board may limit the duration of the special permits and prescribe appropriate conditions and safeguards in conformity with this chapter. No special permit shall be granted by the Board of Appeals unless it shall determine:

(a) 

That the use will not prevent the orderly and reasonable use of adjacent properties or of properties in the surrounding area or impair the value thereof.

(b) 

That the use will not prevent the orderly and reasonable use of permitted or legally established uses in the district wherein the proposed use is to be located or of permitted or legally established uses in adjacent districts.

(c) 

That the safety, health, welfare, comfort, convenience or order of the Town will not be adversely affected by the proposed use and its location.

(d) 

That the use will be in harmony with and promote the general purposes and intent of this chapter.

(2) 

In making such determination, the Board of Zoning Appeals shall give consideration, among other things, to:

(a) 

The character of the existing and probable development of uses in the district and the peculiar suitability of such district for the location of any of such permissive uses.

(b) 

The conservation of property values and the encouragement of the most appropriate uses of land.

(c) 

The effect that the location of the proposed use may have upon the creation or undue increase of traffic congestion on public streets, highways or waterways.

(d) 

The availability of adequate and proper public or private facilities for the treatment, removal or discharge of sewage, refuse or other effluent, whether liquid, solid, gaseous or otherwise, that may be caused or created by or as a result of the use.

(e) 

Whether the use or materials incidental thereto or produced thereby may give off obnoxious gases, odors, smoke or soot.

(f) 

Whether the use will cause disturbing emission of electrical discharges, dust, light, vibration or noise.

(g) 

Whether the operation in pursuance of the use will cause undue interference with the orderly enjoyment by the public of parking or of recreational facilities, if existing or if proposed by the Town or by other competent governmental agency.

(h) 

The necessity for an asphaltic or concrete surfaced area for purposes of off-street parking and loading of vehicles incidental to the use and whether such area is reasonably adequate and appropriate and can be furnished by the owner of the plot sought to be used within or adjacent to the plot wherein the use shall be had.

(i) 

Whether a hazard to life, limb or property because of fire, flood, erosion or panic may be created by reason or as a result of the use or by the structures to be used therefor or by the inaccessibility of the plot or structures thereon for the convenient entry and operation of fire and other emergency apparatus or by the undue concentration or assemblage of persons upon such plot.

(j) 

Whether the use or the structures to be used therefor all cause an overcrowding of land or undue concentration of population.

(k) 

Whether the plot area is sufficient, appropriate and adequate for the use and the reasonable anticipated operation and expansion thereof.

(l) 

The physical characteristics and topography of the land.

(m) 

Whether the use to be operated is unreasonably near to a assembly.

B. 

Area variances.

(1) 

To hear and authorize, upon appeal, such variances from the terms of this chapter. In making its determination, the Board of Zoning 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 Zoning Appeals, but shall not necessarily preclude the granting of the area variance.

(2) 

No nonconforming use of neighboring lands, structures or buildings in the same district and nonpermitted use of lands, structures or buildings in other districts shall be considered grounds for the issuance of a variance.

C. 

Use variances.

(1) 

To hear and authorize, upon appeal, such use variances from the terms of this chapter. 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 application shall demonstrate 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 the 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;

(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.