TABLE OF CONTENTS

INTRODUCTION *

PURPOSE & AUTHORITY *

VARIANCES AND THE ZONING BOARD OF APPEALS *

AREA VARIANCES *

USE VARIANCE *

VARIANCE PROCEDURE *

CONDITIONS *

LIMITATIONS ON CONDITIONS *

SUMMARY *

REFERENCES *

QUIZ *

A variance allows a landowner to use the landowner's property in a manner that does not comply with the literal requirements of the zoning law. There are two basic types of variances: use variances and area variances.

Use variances permit "a use of the land for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations." For example, if a parcel of land is zoned for single-family residential use and the owner wishes to operate a retail business, the owner can apply to the zoning board of appeals for a use variance.

An area variance, on the other hand, allows for a "use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulation." When a proposed structure does not comply with the setback, height, or area requirements of the zoning law, a landowner must get an area variance. If an owner wants to build a deck on his house that encroaches slightly into a side-yard setback area, he may apply to the zoning board of appeals for an area variance.

Variances provide flexibility in the application of the zoning law and give landowners an opportunity to apply for administrative relief from certain provisions of the law. A property owner may seek a use or area variance when the zoning enforcement officer or building inspector denies an application for a building permit because the proposed development violates the use or dimensional requirements of the zoning law.

If an application for permission to build is made to the zoning enforcement officer or local building inspector that does not comply with the literal requirements of the zoning law, the proposal must be denied. If the reason for the denial is that the proposed development violates the use or area provisions of the zoning law, the applicant may then apply to the zoning board of appeals for a use or area variance of the literal provisions as applied to the particular parcel.

The zoning board of appeals has been delegated the authority to issue use and area variances. No other board or authority, not even the local legislature, may hear and grant variance requests. The zoning board of appeals has appellate jurisdiction only, which means that the board is limited to reviewing the decisions of, or hearing appeals from, the determinations of the administrative official charged with zoning enforcement. This means that an applicant must first receive a denial from the building inspector or zoning enforcement officer confirming that the proposal is not permitted under the provisions of the zoning law. After such a denial is received, the property owner may apply to the zoning board of appeals for a variance. The board is limited to granting the minimum variance necessary to address the need for the variance while preserving the character, health, safety, and welfare of the community.

Where a proposed special permit, site plan, or subdivision contains building features that do not conform to the zoning law, an area variance can be requested from the zoning board of appeals without first obtaining an initial denial by the official charged with the enforcement of the zoning law. This exception to the general rule stated above permits efficient administration of the land use system.

The legislative body can separate one land use from another, which is the essential purpose of dividing the community into zoning districts. When a quasi-judicial body, such as the zoning board of appeals, is allowed to vary the uses allowed in a district, that body's power must be limited in order to avoid the usurpation of the local legislature's duties. At the same time, the legislature does not want property owners to be denied a reasonable return on their property because of use restrictions. The zoning board of appeals may grant a use variance where it can give the landowner some relief from these restrictions without altering the essential character of the zoning district. Use variances must meet the requirements of the statute, which impose a burden on the petitioner of proving several factors. New York State statutes impose a heavy burden on an applicant because that applicant is requesting that the zoning board of appeals alter the local legislature's determination that a specific use is not appropriate in the zoning district.

Area variances involve similar tensions, but to a lesser degree. Area variances are appropriate when an odd configuration or unique circumstance prevents the development of a property precisely as prescribed by the dimensional requirement of the zoning law. In such a case, a variance in the dimensional requirements might permit the owner to develop in a way that avoids practical difficulties without substantially affecting neighboring properties. In this situation, the zoning board of appeals has the task of balancing the benefit of the variance against its impact on the area.

State statutes spell out the precise factors that the zoning board must consider in deciding whether to grant an area variance, but has not provided guidance as to how to weigh those factors.

The zoning board may grant area variances to provide relief to the landowner of a parcel that has an unusual configuration or a unique circumstance that prevents development of the property in compliance with the dimensional provisions of the law. A common example is an area variance that is needed to relax the setback requirement on a parcel where some site condition, like a rock outcropping, prevents the proper location of a building on the site.

For a zoning board of appeals to grant a variance from the dimensional and area requirements, it must find that the benefits of the requested variance to the applicant outweigh the detriment it will cause to the health, safety, and welfare of the neighborhood. The board's job is to determine, based on the facts presented by the applicant, how significant the impact on the community will be and how beneficial the variance will be to the owner. The board must weigh the benefits of the requested variance to the applicant against the potential negative impact on the neighborhood using the following five factors as set forth in the statute:

1. Will an undesirable change be produced in the character of the neighborhood or a detriment to nearby properties be created by the granting of an area variance?
2. Can the benefit sought by the applicant be achieved by some method, feasible for the applicant to pursue, other than an area variance?
3. Is the requested area variance substantial?
4. Will the proposed variance have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district?
5. Is the alleged difficulty for the applicant self-created? This consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.

When the statutory balancing comes out in favor of the landowner, the board may only authorize the minimum variance necessary to relieve the landowner. The board may not simply eliminate the area requirement, rather it may relax the requirement only to the extent necessary to provide relief to the owner. Thus, the impact on the character of the community is minimized.

A use variance allows landowners to use their land in a way not permitted under the zoning law. Use variances generally are more difficult to obtain than area variances.

To obtain a use variance, the applicant must demonstrate that the applicable use provisions of the zoning laws cause an unnecessary hardship. To prove unnecessary hardship, the applicant must establish that the requested variance meets the following four statutory conditions:

1. The owner cannot realize a reasonable return on the property as zoned.
2. The hardship must be unique to the owner's property and not applicable to a substantial portion of the zoning district.
3. Granting the variance will not alter the essential character of the neighborhood.
4. The hardship is not self-created.

1.  The owner cannot realize a reasonable return on the property as zoned. The lack of return must be substantial and proven by competent financial evidence. It is insufficient for the applicant to show that the desired use would be more profitable than the use permitted under the zoning law.

In Everhart v. Johnston (1968), the owner of residentially zoned property sought a use variance to allow him to construct offices for an insurance agency and a real estate business. The owner testified in support of the application that it would not be economical to renovate the property for residential purposes and that the owner could charge a greater rent to a commercial rather than residential tenant. The court held that a showing that "the permitted use may not be the most profitable use is immaterial." The applicant must establish that "the return from the property would not be reasonable for each and every permitted use under the ordinance."

2. The hardship must be unique to the owner's property and not applicable to a substantial portion of the zoning district. If the hardship is common to the whole neighborhood, the remedy is to seek a change in the zoning from the local legislature, not to apply for a use variance from the zoning board of appeals.

 

In Collins v. Carusone (1987), the court held that the applicant had failed to establish that the hardship, being located near a city landfill, was unique to her property. Rather, the court held that the hardship was common to all properties in the area. The court upheld the zoning board of appeals' rejection of a use variance based on the applicant's failure to satisfy the uniqueness requirement of the statute. Similarly, in Citizens for Ghent v. Zoning Board of Appeals of the Town of Ghent (1991), the landowner argued that the proximity of the property to an industrial park and highway caused an unnecessary hardship to use the property because it was zoned as residential/agricultural. The court held that because neighboring properties shared the same hardships, the use variance was properly denied.

In Douglaston Civic Association v. Klein (1980), the Court of Appeals noted that "uniqueness does not require that only the parcel of land in question and none other be affected by the condition that creates the hardship. What is required is that the hardship condition be not so generally applicable throughout the district as to require the conclusion that if all parcels similarly situated are granted variances the zoning of the district would be materially changed." Such a change is the responsibility of the local legislature, not the zoning board of appeals.

3.  Granting the variance will not alter the essential character of the neighborhood. In making this determination, the zoning board should consider the intensity of the proposed development as compared with the intensity of the existing and permitted uses in the neighborhood. For example, a use variance to permit construction of an office building in a single-family neighborhood where several tall commercial structures already exist would not alter the essential character of the neighborhood.

The court in Holy Sepulchre Cemetery v. Board of Appeals of the Town of Greece (1948), held that a cemetery would alter the essential character of a district zoned for residential development, despite the fact that the land in the district was undeveloped at the time of the application.

4.  The hardship is not self-created.

There are several steps involved in making variance determinations. The following is a summary of those procedures, some of which may not apply in all cases. If an area variance is needed for a subdivision, special use permit, or site plan approval, the application may be made directly to the zoning board of appeals.

First, the landowner must apply to the building inspector or zoning enforcement officer, who will determine whether the proposal meets the requirements of zoning. If the building official finds the proposal conforms, no variance is needed. Before the zoning board of appeals may consider a variance, however, the enforcement officer must deny approval to use the property as proposed because the zoning law prohibits it.

The provisions of the State Environmental Quality Review Act (SEQRA), which require public agencies to consider the impacts of their land use decisions on the environment, must be complied with by the zoning board of appeals. Where the approval of a variance may have a significant adverse impact on the environment, the extensive procedural requirements and the extended timetable of SEQRA must be followed and coordinated with other requirements for granting variances.

In certain instances, the zoning board must submit variance applications to a county or regional planning agency. Such referral, accompanied by a full statement of the matter under consideration, must be sent at least ten days before the public hearing on the variance.

Once a condition is attached to a local land use approval, it must be complied with before the local building inspector or department issues a building permit. If the condition must be met during construction, then its terms must be complied with before the construction is complete and before local authorities will grant a certificate of occupancy.

The authority to impose conditions on the approval of a variance is expressly delegated to the zoning board of appeals by statute. The statutes state that the conditions must be "reasonable" and "directly related to and incidental to the proposed use of the property."

In the case of variances, conditions must be consistent with the spirit and intent of the zoning law and imposed to minimize any adverse impact on the neighborhood.

The zoning board of appeals retains significant authority to condition a variance approval. In reviewing a decision of the zoning board of appeals on a variance application, the court will presume that the decision was correct and defer to the judgment of the zoning board of appeals. The same deference extends to any conditions attached to a variance approval. For example, conditions can include "restrictive covenants relating to the maximum area to be occupied by buildings." This is one way to ensure that granting a variance will have a minimal effect on the neighborhood.

A zoning board may grant a variance on the condition that the variance will lapse if the variance is not acted upon within a certain time. Additionally, the board may condition approval of the variance on aesthetic reasons alone.

Conditions imposed on variances must comply with several standards or they can be declared invalid. Courts have invalidated a condition when there is no rational basis for its imposition in the record, when the condition is unreasonable, or when it is not related to the impacts of the proposed development.

The requirement that conditions relate to the impacts of a proposed development has led to several generalizations about requirements that conditions must meet. It is often said, for example, that conditions must relate to the "use, not the user," and that conditions cannot regulate the "details of the operation" of a business. Although these statements have some validity, they are not absolutes.

• The landowner submits an application for variance to zoning board of appeals.
• The landowner submits an environmental review form, if required.
• The zoning board of appeals must hold a public hearing on the application for area variance.
• The zoning board of appeals must make its determination within sixty-two days of the hearing. This time may be extended if SEQRA review is necessary.
• The zoning board of appeals must file its decision within five days after making a determination.

1. Reasonable;
2. Directly related to the granting of the variance;
3. Applicable to the use of the land and not the user as a person;
4. Imposed to minimize the impact on the surrounding community; and
5. Applicable only to the property under consideration.

1. John R. Nolon, Well Grounded, Shaping the Destiny of the Empire State, Local Land Use Law and Practice, Chapter 3. http://www.law.pace.edu/landuse/homepage.html
2. Between Chaos and Constraint: The Imposition of Reasonable Conditions on Land Use Approvals, Cozata Solloway, Land Use Law Center (1996).
3. James A Coon and Sheldon W. Damsuy. All You Ever Wanted to Know About Zoning . . . (1993). New York Planning Federation.