Month: November 2016

When You Need A Zoning Variance

Many homeowners dream of increasing the size of their home, whether it be erecting an addition or second story, installing a pool, building a detached garage or adding a deck, and the like. The challenge lies in turning those dreams into reality.

One reason is that homeowners must confront zoning limitations –rules in villages, towns and cities that regulate everything from the height of a house, to the number of structures permitted on a property, to a distance of a home or accessory structure from the property line. Zoning laws are a municipality’s guide to future development and to protect residents and property owners from undesirable development.

Dealing with zoning restrictions can be frustrating for homeowners. However, if your plans do not conform to the zoning regulations, there is something you can do. Note that something is not ignoring the rules or trying to get zoning approved after the fact.[1] What you can do however is seek a variance of the zoning rules.

A “variance” is permission granted by the municipality so that the property may be used in a manner not permitted by zoning. In New York, municipalities have what is referred to as the Zoning Board of Appeals. It is an administrative body established by the municipality’s legislative body to hear appeals from decisions or actions taken by the municipality’s code enforcement officer[2] or to render interpretations of zoning provisions. Only the Zoning Board of Appeals has the power to grant a variance of the zoning regulations, and since zoning is meant to implement the municipality’s development objectives and protect the health, safety and general welfare of the residents, there are strict rules governing when variances may be issued.

There are two types of variances – “use” and “area.” The rules for each are different, and as such will be discussed separately below.

Use Variance

A use variance grants permission to the owner to do what the use regulations prohibit – in other words, use the property in such a way that is not permitted by the zoning regulations. Examples include, permitting a commercial use in a residential district, or permitting a multiple dwelling in a district limited to single-family homes, or permitting an industrial use in a district limited to commercial uses.

In the case of a use variance, the power of the Zoning Board of Appeals must be exercised very carefully to avoid conflict with the overall zoning scheme for the community. Therefore the showing required for entitlement to a use variance is very difficult. If requesting a use variance the applicant must prove “unnecessary hardship.” To prove this, State law[3] requires the applicant to show all of the following:

  • that the property is incapable of earning a reasonable return on initial investment if used for any of the allowed uses in the zoning district (actual “dollars and cents” proof must be submitted);
  • that the property is being affected by unique, or at least highly uncommon circumstances;
  • that the variance, if granted, will not alter the essential character of the neighborhood; and
  • that the hardship is not self-created.

If any one or more of the above factors is not proven, State law requires that the Zoning Board of Appeals deny the variance.

Area Variance

An area variance is permission to build or erect in an otherwise restricted portion of the property (such as in the required front, side or rear yard setback areas, or above the required building height, or in excess of the lot coverage regulations). In the case of an area variance, State law requires the applicant to show that the benefit the applicant stands to receive from the variance will outweigh any burden to the health, safety and welfare that may be suffered by the community. State law requires the Zoning Board of Appeals to take the following factors into consideration in making its determination:

  • whether an undesirable change will be produced in the character of the neighborhood, or a detriment to nearby properties will be created by the grant of the area variance;
  • whether the benefit sought by the applicant can be achieved by some other method which will be feasible for the applicant to pursue but would not require a variance;
  • whether the requested area variance is substantial;
  • whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and
  • whether an alleged difficulty is self-created.

Unlike the use variance test, the applicant does not have to satisfy every one of the above questions. Rather, the Zoning Board of Appeals must merely take each one of the factors into account. The Zoning Board of Appeals may also decide that a lesser variance than the one requested would be appropriate, or may decide that there are alternatives available to the applicant which would not require a variance.

Conditions Imposed on Variance

If a Zoning Board of Appeals decides to grant a use or area variance, State law requires the board to grant the minimum variance necessary to provide relief, while at the same time taking care to protect the character of the neighborhood and the health, safety and welfare of the community. For those same reasons, the board may also impose reasonable conditions on the grant of any variance. Such conditions must be directly related to and incidental to the proposed use of the property however.

Referrals to a Planning Agency

In some instances, an application for a variance must be referred elsewhere for recommendation before making a final decision. State law requires that in any city, town or village located in a county which has a county planning agency, or within the jurisdiction of a metropolitan or regional planning council, any board charged with taking certain zoning or planning actions must before making such action refer them to that county, metropolitan or regional planning agency or council.

Environmental Quality Review

In addition to the specific variance criteria outlined above, the Zoning Board of Appeals must also adhere to the State Environmental Quality Review Act, better known as “SEQRA”. SEQRA is a process that requires systematic consideration of environmental factors early in the planning states of actions that are directly undertaken, funded or approved by local, regional and state agencies.


The above rules and standards have been set forth in law and by the courts of New York State, and therefore a Zoning Board of Appeals may not deviate from them. If the rules are not followed, a municipality exposes itself to litigation.

Applicants and their representatives should understand the appropriate legal standards in deciding whether an appeal would be appropriate, and if an appeal is taken, the applicant should present clear, definite facts showing that the standards have been met.


[1] A homeowner may be forced to tear down any structure erected illegally regardless of the expense.

[2] An exception occurs where an applicant has already submitted an application for subdivision, site plan, or special use permit approval which requires an area variance in connection with that approval. In those instances, no decision of the code enforcement officer is necessary.

[3] Found under (NY) General City Law, Town Law, and Village Law.

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