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Understanding Area Variances in New York State

Land Use & Zoning

When it comes to zoning and land use matters, understanding the intricacies of regulations and requirements is essential. One vital tool for seeking relief from zoning restrictions in New York State is an “area variance.” This blog post discusses the definition of an Area Variance, the requirements set forth in New York State Town Law Section 267-b(3), and the importance of legal representation before the local zoning board of appeals (ZBA).

An area variance is a discretionary approval granted by the local ZBA that provides relief from specific zoning regulations pertaining to “area” factors such as lot size, setbacks, building height, density, or other physical requirements. It allows property owners to deviate from standard zoning requirements applicable to their property while maintaining the underlying zoning classification.

To obtain an area variance, applicants must meet the specific requirements outlined in New York State Town Law Section 267-b(3). A local zoning board of appeals may grant an area variance pursuant to this section where substantial evidence in the record supports the ZBA’s conclusion that the benefit to the applicant if the variance is granted outweighs any detriment to the health, safety, and welfare of the neighborhood or community. In applying this balancing test, the ZBA must consider 5 statutory factors:

  1. Undesirable Change: 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.

  2. Feasible Alternatives: whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance.

  3. Substantiality: Whether the requested area variance is substantial.

  4. Adverse Effects: whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.

  5. Self-Created Difficulties: Whether the alleged difficulty necessitating the variance was self-created. While relevant to the board’s decision, self-creation does not automatically preclude the granting of the area variance.

Finally, in granting area variances, the ZBA must ensure that it approves the minimum variance deemed necessary and adequate while also preserving the character of the neighborhood and safeguarding the health, safety, and welfare of the community.

If you are applying for an area variance, opposing an area variance, or are on a ZBA that is considering an area 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 area 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 area variance factors and balancing 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 area 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 area variance 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 area 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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