Land Use Training Program
for Local Officials
Tutorial
Component V - Variances
New York Municipal Insurance Reciprocal
Land Use Law Center - Pace University School of Law
New York Planning Federation
TABLE OF CONTENTS
INTRODUCTION *
PURPOSE & AUTHORITY *
VARIANCES AND THE ZONING BOARD OF APPEALS *
AREA VARIANCES *
Minimum Variance Necessary *
USE VARIANCE *
VARIANCE PROCEDURE *
CONDITIONS *
LIMITATIONS ON CONDITIONS *
SUMMARY *
Summary - Use Variance *
Summary - Area Variance *
Summary of Procedure - Use and Area Variance *
Summary - Conditions on Variances *
REFERENCES *
QUIZ *
A variance allows a landowner to use their 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.
Town Law § 267-b, Village Law § 7-712-b, and General City Law § 81-b set
forth the definitions of a use and area variance, establish the authority of the
zoning board of appeals to issue use and area variances, and provide the
statutory criteria that must be met before variances may be awarded.
If an application is made to the zoning enforcement officer or local building inspector seeking permission to build on or develop property in a manner 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 relief (either a use or area variance) from the literal provisions of the zoning law as applied to their particular parcel.
A
property owner must first be denied a building permit because the request
violates use or dimensional requirements of the zoning law. The property owner
may then apply to the zoning board of appeals for a variance.
VARIANCES AND THE ZONING BOARD OF APPEALS
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 directly 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 more efficient administration of the land use system.
A vote of the majority of the full board in favor of the variance is necessary in order to grant a use or area variance.
The legislative body can separate incompatible
land uses from one another. This is one 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. New York State statutes impose a heavy burden on an applicant
for a use variance 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 than for use variances. Area variances are appropriate when an odd configuration or unique circumstance prevents the development of a property in conformity with the dimensional requirements 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 to the applicant against its impact on the surrounding area.
State statutes spell out the precise factors that the zoning board must consider in deciding whether to grant an area variance, but leaves it to each board as to how to weigh those factors.
When
an area variance is granted, the zoning board's record should reveal that the board
considered all required factors and the record should include the findings of
the board with respect to each.
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:
- 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?
- Can the benefit sought by the applicant be achieved by some method, feasible for the applicant to pursue, other than an area variance?
- Is the requested area variance substantial?
- Will the proposed variance have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district?
- 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.
In Sasso v. Osgood
(1995), the Court of Appeals interpreted the statutory balancing test for area
variances. The case involved an application for an area variance to allow the
property owner to build a boathouse on a lot
that was smaller than the required minimum lot size. The zoning board of
appeals granted the area variance and several neighbors challenged that
decision.
In upholding the determination of the zoning board of appeals, the court found that the board had carefully considered the five statutory criteria and made a rational decision. The zoning board found that the construction of the boathouse would not cause a change in the character of the neighborhood as adjacent properties had similar structures. In addition, no alternatives other than an area variance existed because the subject parcel was smaller than required and there was no available adjacent land that could be acquired to meet the minimum requirements. The fact that the hardship was determined to be self-created was not fatal to the granting of the variance. Although the owner had knowledge that the lot was substandard when purchased, the statute specifically provides that this is just one factor for the board to consider and "shall not preclude the granting of an area variance." The court found that the zoning board properly weighed the benefit of the variance to the applicant against the detriment to the community, and that the record amply supported the board's findings.
When the statutory balancing comes out in favor of the landowner, the board may only authorize the minimum variance necessary to provide relief. The board should not ignore the area requirement, rather it may relax the requirement only to the extent necessary to provide relief to the owner. Thus, any impact on the character of the surrounding community is minimized.
Village Law § 7-712-b (3)(c), Town Law § 267-b (3)(c), and General City Law § 81-b (4)(c)
state that when granting area variances, 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."
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 (i.e., dollars and cents proof). 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 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 was an unnecessary hardship when 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 the
“uniqueness” element does not require that the parcel of land in question be
the only parcel affected by the condition that creates the hardship. What is
required is that the hardship condition not be so prevalent 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 nature of the proposed development as compared with the other 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.
4. The hardship is not self-created.
In Clark v. Board of
Zoning Appeals of Town of Hempstead (1950), the Court of Appeals held that
anyone who "knowingly acquires land for a prohibited use, cannot
thereafter receive a variance on the ground of 'special hardship.'" For
example, a developer cannot acquire land zoned for residential use and then
successfully petition for a variance to construct office buildings. Whether the
purchaser actually knew about applicable use restrictions is not relevant. They
have a duty to discover the use restrictions.
In AMCO Development v.
Zoning Board of Appeals of the Town of Perinton (1992), the court held that
the property owner had created the hardship complained of. The owner bought a
parcel that was two-thirds wetland.
Without the approval of zoning
authorities, the owner divided the property into four lots and sold three of
the parcels for residential development. The owner claimed that zoning use
restrictions pertaining to the remaining lot, which was covered by wetlands,
constituted a hardship for which he requested a use variance. The zoning board
of appeals correctly found that by creating an unapproved subdivision that left
one parcel incapable of development because of significant wetlands, the
hardship was self-created and the board could not grant a use variance.
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. As mentioned previously, 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. Before the zoning board of appeals may consider a variance, the enforcement officer must deny approval to use the property as proposed because the zoning law prohibits it.
The
property owner must apply to the enforcement officer and receive a denial. Then
the owner has sixty days from this determination to apply to the zoning board
of appeals for a use or area variance.
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.
The
landowner may be required to submit an environmental assessment
form for the zoning board to consider along with its application for a
variance.
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.
Under
General Municipal Law § 239-m,
certain variance applications (affecting property near county property or municipal
boundaries) must be submitted to the county or regional planning agency for
review and comment.
The
zoning board of appeals must hold a public hearing within a reasonable time
after receiving the application. The zoning board of appeals' decision on the
variance must be rendered within sixty-two days from the date of the public
hearing. If necessary, this time may be extended for SEQRA review.
The
decision, with the board's findings, must be filed in the office of the municipal clerk within five
business days and a copy must be mailed to the applicant.
Variances may be granted with conditions attached. 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.
Some
types of conditions that have been sustained by the courts are fences, safety
devices, landscaping, screening,
access roads, soil erosion prevention measures, drainage facilities, outdoor
lighting, enclosure of buildings, restrictive covenants that
prevent development of land in a floodplain,
archeological site or viewshed protections, and a variety of measures to
contain the emission of odors, dust, smoke, noise, and vibrations.
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."
The
statutory provisions that authorize the imposition of conditions on the
issuance of variances are found at Village
Law § 7-712-b (4), Town Law §
267-b (4), and General City
Law § 81-b (5). "The board of appeals shall, in the granting of both
use variances and area variances, have the authority to impose such reasonable
conditions and restrictions as are directly related to and incidental to the
proposed use of the property. Such conditions shall be consistent with the
spirit and intent of the zoning law, and shall be imposed for the purpose of
minimizing any adverse impact such variance may have on the neighborhood or
community."
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.
In Driesbaugh v. Gagnon
(1988), the property owners contested certain conditions attached to the
granting of a use variance for one of two properties owned by them in the area.
The property owners, who operated automobile repair shops at each location in
the town, contested a condition that prohibited parking more than two
non-employee vehicles outside the repair shop during working hours. They also contested a condition that
required them to discontinue using the second property as a repair shop.
The court began its analysis by recognizing that a local board has the authority to impose "appropriate conditions and safeguards in conjunction with a change of zone or a grant of variance or special permit," but those conditions must be "reasonable and relate to the real estate without regard to the person who owns or occupies it." The court warned that local boards were particularly prone to making determinations based on the user.
Any conditions imposed on a variance issued for a property must relate "solely to that property." Thus, the court determined that the condition requiring the owner to close down the other repair shop was invalid because it was completely unrelated to "the potential impact of that use on neighboring properties." "In seeking a variance for a specific parcel, petitioner should not have been required to forfeit valuable property rights merely because he happened to own other property in the same community." However, the court upheld the parking condition attached to the variance. The court felt that the number of vehicles parked on the property could adversely affect the character of the surrounding community, a district which was classified as agricultural/residential.
A zoning board may not condition a variance upon a dedication of other property. Conditions may only apply to land that is under consideration.
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.
In Hubshman v. Henne
(1973), the court upheld a requirement that the owner create a buffer of shrubbery to protect the quiet
enjoyment of the neighbors. In Nardone v. Town of Lloyd (1988), requirements
that the owner provide a number of parking spots and remove a shed to allow
additional parking which would alleviate the adverse impact of off-site parking
caused by development of the property were similarly upheld. The requirement
that the board grant the minimum variance necessary suggests that conditions
may be substantial and still be valid. Thus, in Finger v. Levenson
(1990), the court upheld a condition on a use variance that restricted the use
of a building as an antique store to no more than twenty-five percent of the
total floor space in the building. As the area was zoned for single-family use,
the court determined that the condition was "reasonably related to the
purposes underlying the zoning code."
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.
When conditions deal with
who uses the land or the details of business operations, the zoning board has
to be particularly careful to show how they are related to lessening the
impacts of the development on the land or how they protect the character of the
neighborhood.
Before a use variance may be permitted by the zoning board of appeals, the applicant must show "unnecessary hardship." To demonstrate "unnecessary hardship" the applicant must prove (1) they cannot realize a reasonable return; (2) the hardship is unique to their property; (3) the variance will not alter the essential character of the neighborhood; and (4) the hardship is not self-created. Additionally, the statute mandates the granting of the minimum variance necessary to alleviate the hardship. Consequently, in granting the minimum variance, the board may impose conditions to protect the "essential character of the neighborhood."
For an area variance, the board must decide that the benefit to the applicant of permitting the variance will outweigh the detriment to the surrounding community. In balancing the benefit and burden, the board must weigh the following factors: (1) whether an undesirable change to the character of the neighborhood or a detriment to surrounding properties will result from the grant of the variance; (2) whether the benefit sought by the applicant can be achieved by alternate means; (3) whether the requested variance is substantial; (4) whether the variance will have an adverse physical or environmental impact on the surrounding community; and (5) whether the difficulty was self-created. In granting the variance the board must grant the minimum variance necessary.
Summary
of Procedure - Use and Area Variance
- The landowner submits an application for variance to zoning board of appeals.
- The landowner submits an environmental assessment form, if required.
- The zoning board of appeals must hold a public hearing on the variance application.
- 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.
Summary
- Conditions on Variances
The Town Law, Village Law, and General City Law expressly authorize the local board of appeals to impose conditions on a variance approval. Conditions may be imposed as long as those conditions fairly relate to the impacts of the land use allowed by the variance. Conditions that address these impacts fulfill the statutory mandate to grant the minimum variance necessary to alleviate the burden on the property owner.
Conditions must be:
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.
- Between Chaos and Constraint: The Imposition of Reasonable Conditions on Land Use Approvals, Cozata Solloway, Land Use Law Center (1996).
- James A Coon and Sheldon W. Damsky. All You Ever Wanted to Know About Zoning . . . (1993). New York Planning Federation.
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