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Understanding Use Variances in New York State

Land Use & Zoning Municipal

Zoning and land use law can be a complicated, niche area of law, and so understanding the intricacies of regulations and requirements is vitally important. One crucial tool for seeking relief from zoning restrictions in New York State is a “use variance.” This blog post explains what a Use Variance is, discusses the requirements set forth in New York State Town Law Section 267-b(2), and the importance of legal representation before a local zoning board of appeals (ZBA).

A Use Variance is a discretionary action granted by the local zoning board of appeals that allows property owners to use their land for purposes not permitted by the existing zoning regulations. It provides relief from the specified permitted uses and enables property owners to pursue an alternative use that may be deemed necessary or desirable for their property.

To obtain a use variance, applicants must meet the specific requirements outlined in New York State Town Law Section 267-b(2). A local zoning board of appeals may grant a use variance pursuant to this section where substantial evidence in the record supports the ZBA’s conclusion “applicable zoning regulations and restrictions have caused unnecessary hardship.”  In order to prove such unnecessary hardship, the applicant must demonstrate to the ZBA 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.”

Finally, in granting use variances, the ZBA must ensure that it approves the minimum variance deemed necessary and adequate to address the unnecessary hardship proven by the applicant, and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.

If you are applying for a use variance, opposing a use variance, or are on a ZBA that is considering a use variance, it is important to understand the legal issues and have experienced counsel on your side. An attorney with zoning and land use law experience understands how to navigate the complexities of zoning and land use laws and regulations. Having handled a plethora of zoning and land use cases in New York — including use variance matters — our attorneys can provide valuable guidance to increase our clients’ likelihood of advancing their goals. Experience also helps us more persuasively tell our clients’ stories, why the variance is significant, and how the statutory use variance factors and test apply to the application. Communicating this information clearly and effectively can help the applicant, the public, and the ZBA better understand what’s at stake and lead to a better outcome. Finally, an experienced attorney can help develop a well-documented record during the administrative phase of the proceedings. This record becomes crucial if litigation is commenced to challenge the ZBA’s decision on the use variance application because the Court’s review of the ZBA’s decision is generally limited to the facts and arguments that were raised before the ZBA when it initially considered and decided the application. That’s why retaining an attorney early in the process is so important: to help with administrative application and to represent the client in litigation if the decision on the application is challenged.


Any person aggrieved by a ZBA’s decision may challenge the decision in court through what is known as an “Article 78” proceeding. In such a lawsuit, the Court may annul the ZBA’s decision pursuant to CPLR §7803(3) if it finds that the ZBA’s decision was made “in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion.” Article 78 proceedings challenging a ZBA’s decision must be commenced within 30 days after the filing of the decision in the municipality’s clerk’s office. This very short time to challenge a ZBA’s decision is another good reason that applicants, opponents, and ZBAs should all be represented by counsel, if practicable. The applications and challenges can move very quickly, and so an experienced attorney can help prepare for
these challenges and make sure important deadlines don’t get missed.

If you have questions about the use variance process, contact an experienced attorney at the Zoghlin Group for help. The Zoghlin Group offers a range of legal services related to Zoning and Land Use Law, including variances.

For inquiries related to Municipal LawEnvironmental Law, or Zoning and Land Use Law issues, please contact Jacob H. Zoghlin, Esq. or Mindy Zoghlin, Esq. at The Zoghlin Group, PLLC.

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