How Do I Get a Zoning Variance in New York?
Full Question:
Answer:
Zoning regulations and definitions vary by county. It may be possible to petition for a special use permit or variance. The most common way of providing relief from the provisions of a zoning ordinance is through the granting of a variance. This is an authorization to use land or to construct or maintain a building in a way that would otherwise be prohibited by the zoning ordinance. It is also used to give relief from, or permit reduction of, one or more requirements of the ordinance as applied to a particular site.The appeal is usually made by the completion and filing of an appeal form as required by local procedures, and should include the specific reason for the appeal. The appeal may be brought by a person (the property owner, lessee or option holder) aggrieved by the refusal of the building inspector or designated administrative officer to approve an action, or by a person aggrieved because another person’s proposal was approved, or by a person who has been cited for a violation of the zoning regulations.
Traditionally, variances are given only on appeal; that is after the zoning enforcement officer has
denied a proposal. However, as a result of changes in the State enabling legislation, variances in
connection with site plan, subdivision and special permit applications may be directly taken to
the zoning board of appeals.
The appeal must be taken “within sixty days after the filing of any order, requirement,
decision, interpretation or determination f the administrative official charged with the
enforcement of any ordinance or local law...” The proposed action upon which the appeal is
based may not proceed during the appeal, unless the enforcement officer certifies that stay
would imperil life or property. Upon acceptance of an appeal, the board must formally fix a reasonable time for a hearing (usually 60 days).
Decisions of the zoning board are reviewable by the New York State Supreme Court (the lowest level of the State court system) in a proceeding under Article 78 of
the Civil Practice Law and Rules. It establishes a procedure through which the courts may
review and grant relief from administrative action. This is essentially a writ of certiorari, a
calling up of the record for review. In the class of officers and boards having a right to seek
judicial review are the enforcement officer, the mayor or supervisor, the legislative body and the
planning board. In addition, any other aggrieved party can bring an action to have the court
review a zoning board’s decision. An aggrieved party is considered to be a person or group of
persons found to have a sufficient legal interest in the matter decided upon by the zoning board.
No use variance shall be granted by a board of appeals without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship. In order to prove such unnecessary hardship the applicant shall demonstrate to the board of appeals 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 a use variance, just as in granting an area variance, zoning boards must grant
the minimum variance necessary and must at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.
There are some land uses that are useful and necessary to a community but are significantly
different from the primary uses permitted within a district. The establishment of such uses often
requires “special” evaluation. When provided for in the zoning ordinance, these “special uses”
are permitted by right, subject to a demonstration that certain conditions, also specified in the
zoning ordinance, can be met.
Uses requiring a special use permit are identified in the ordinance for each zoning district in
which they are allowed. Standards used to grant a special use permit are provided, although they may vary greatly in their degree of specificity from ordinance to ordinance. The specificity of the standards and criteria is of critical importance as the decision to allow a special permit use must be based on such standards and no others. If the required criteria and standards are complied with, approval of the special use must be granted.
The following is a NY state law:
§ 2 Educ. Definitions.
Wherever used in this chapter, the following terms shall have the
respective meanings hereinafter set forth or indicated:
1. Academy. The term "academy" means an incorporated institution for
instruction in secondary education, and such high schools, academic
departments in union free school districts and similar unincorporated
schools as are admitted by the regents to the university as of academic
grade.
2. College. The term "college" includes universities and other
institutions for higher education authorized to confer degrees.
3. University. The term "university" means The University of the State of
New York.
4. Regents. The term "regents" means board of regents of The University
of the State of New York.
5. Commissioner. The term "commissioner" means commissioner of education
of the state of New York.
6. Department. The term "department" means education department of the
state of New York.
7. Secondary education. The term "secondary education" means instruction
of academic grade, between the elementary grades and the college or
university.
8. Higher education. The term "higher education" means education in
advance of secondary education, and includes the work of colleges,
universities, professional and technical schools, and educational work
connected with libraries, museums, university and educational extension
courses and similar agencies.
9. Trustee. The term "trustees, " when not used in reference to a school
district, includes directors, managers or other similar members of the
governing board of an educational institution. The terms "trustee" and
"trustees", respectively, when used in reference to a school district,
shall include the plural or singular meaning, as the case may be, unless
otherwise specified.
10. Parental relation. The term "persons in parental relation" to a
child includes the parents, guardians or other persons, whether one or
more, lawfully having the care, custody or control of such child,
including persons who have been designated pursuant to title fifteen-A of
article five of the general obligations law as persons in parental
relation to the child.
11. Compulsory school ages. The term "child of compulsory school age"
means any child between six and sixteen years of age lawfully required to
attend upon instruction.
12. School authorities. The term "school authorities" means the trustees,
or board of education, or corresponding officers, whether one or more, and
by whatever name known, of a city school district, or other school district
however created.
13. School officer. The term "school officer" means a clerk, collector,
or treasurer of any school district; a trustee; a member of a board of
education or other body in control of the schools by whatever name known in
a union free school district, central school district, central high school
district, or in a city school district; a superintendent of schools; a
district superintendent; a supervisor of attendance or attendance officer;
or other elective or appointive officer in a school district whose duties
generally relate to the administration of affairs connected with the public
school system.
14. Board of education. The term "board of education" shall include by
whatever name known the governing body charged with the general control,
management and responsibility of the schools of a union free school
district, central school district, central high school district, or of a
city school district.
15. School year. The term "school year" means the period commencing on
the first day of July in each year and ending on the thirtieth day of June
next following.
16. City school district. a. The following school districts are hereby
designated and declared to be city school districts: (1) Any school
district coterminous with a city on January first, nineteen hundred fifty;
(2) any school district part of which was without and part of which was
within a city on January first, nineteen hundred fifty, and which then
contained the whole or the greater portion of the children of the city
between birth and eighteen years of age, as shown by the school census; and
(3) any school district wholly within, but not coterminous with, a city
on January first, nineteen hundred fifty, and which then contained the
greater portion of the children of the city between birth and eighteen
years of age, as shown by the school census.
b. Whenever a city shall be created after January first, nineteen hundred
fifty, that school district shall be and become a city school district
which, on the effective date of the incorporation of such city, is: (1)
coterminous with the city; (2) partly without and partly within the city
and then contains the whole or the greater portion of the children of the
city between birth and eighteen years of age, as shown by the school
census; or (3) wholly within but not coterminous with the city and then
contains the greater portion of the children of the city between birth and
eighteen years of age, as shown by the school census.
c. The corporate existence of any school district, which, by virtue of
the provisions of this subdivision, shall be and become a city school
district, shall continue, and any such school district thereafter shall be
governed by the provisions of this chapter applicable to city school
districts.
17. State university. The term "state university" means the state
university of New York, as created by article eight of this chapter.
17. City. The term "city" means the city school district of such city
where the context clearly so indicates.
18. Minor or infant. The term "minor" or "infant" means a person who
has not attained the age of eighteen years.
19. Expenditures. For purposes of computing aid to public school
districts, boards of cooperative educational services, nonpublic elementary
and secondary schools, public and cooperative library systems or public and
free association libraries pursuant to this chapter or any other law, such
aid shall be computed using state aid worksheets developed pursuant to
regulations of the commissioner, designed to reflect use of the state
comptroller's definition of expenditures to the extent possible. Such
worksheet definitions of expenditures shall be used notwithstanding the
fact that this chapter or other applicable law may use terms such as cash
expenditures, expenses, costs, paid, payments, or such other terms.
24. Career education. The term "career education" means organized
educational programs offering a sequence of courses which are directly
related to the preparation of individuals in paid or unpaid employment in
current or emerging occupations requiring other than a baccalaureate or
advanced degrees, and shall include vocational and occupational education.
Such programs shall include competency-based applied learning which
contributes to an individual's academic knowledge, higher-order reasoning,
and problem solving skills, work activities, general employability skills,
and the skills necessary for economic independence as a productive and
contributing member of society. Such term also includes applied technology
education. Except where the intent indicates otherwise, the terms
"vocational education" and "occupational education" shall mean "career
education."
