The zoning board of appeals, variances, special permits, Article 78, and local enforcement

Choose the right zoning route

In New York, a zoning board of appeals (ZBA) can affirm, reverse, or modify an appealed decision or interpretation of the zoning enforcement official. It reviews administration of zoning; it does not rewrite the zoning law. A town board appoints the town ZBA, and town board members cannot serve on it.

Use variance: a prohibited purpose

A use variance permits a purpose otherwise prohibited by zoning. New York requires unnecessary hardship, demonstrated for each and every permitted use:

• No reasonable return, with a substantial lack of return shown by competent financial evidence.
• Hardship unique to the property, not shared by a substantial portion of the district or neighborhood.
• No alteration of the neighborhood's essential character.
• Hardship that was not self-created.

A more profitable proposed business does not alone satisfy this test. The board grants the minimum relief necessary and adequate to address proven hardship while protecting the neighborhood and community.

Area variance: dimensional or physical relief

An area variance addresses requirements such as setbacks. New York weighs the applicant's benefit against detriment to neighborhood or community health, safety, and welfare. The five factors are:

• Undesirable neighborhood change or detriment to nearby properties.
• A feasible alternative to the variance.
• Substantiality of the request.
• Adverse physical or environmental effects.
• Whether the difficulty was self-created.

Self-created difficulty is relevant but does not necessarily preclude an area variance. Do not substitute the use variance hardship test for this balancing test. The board grants minimum necessary and adequate relief while protecting the community.

Special use permits and enforcement

A special use permit authorizes a use already permitted subject to zoning requirements. A New York town board may authorize the planning board or another designated administrative body to grant these permits. Conditions must be reasonable and directly related and incidental to the proposed special use. They must be met in connection with issuance of permits by town enforcement officers.

A special use proposal needing dimensional relief may go to the ZBA for an area variance without first receiving an enforcement official's decision. Check local requirements and obtain legal advice for a contested application.

Court review

An Article 78 proceeding is a special proceeding brought in New York Supreme Court. For review of a town special use permit decision, Town Law § 274-b requires institution of the proceeding within 30 days after filing of the decision with the town clerk. Court review is distinct from applying for zoning permission.