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Obtaining A Zoning Variance in New York City

Eugene Travers, Esq. and Meenakshi Srinivasan; Kramer Levin Naftalis & Frankel LLP

When it comes to zoning, one size does not always fit all.  The zoning districts of the city’s Zoning Resolution – within which regulations govern what and how much can be developed on a parcel of land – are often mapped broadly in the case of areawide rezonings, sometimes covering hundreds of blocks at a time.  In these situations, it is simply not practicable for the city to evaluate the impact of the regulations on each individual parcel of land.  The district’s uniform rules thus apply to parcels that may differ drastically in terms of topography, lot size and shape, subsurface conditions, and existing uses or buildings.  Sometimes, because of such unique conditions, the development of a particular property is unfairly burdened by the general application of the regulations, thereby preventing the property from generating a reasonable return.  For example, a site may have an irregular shape that makes it impossible to provide required yards or unusual subsurface conditions that require a deeper and more expensive foundation, or perhaps a property in a manufacturing district is occupied by a vacant factory building that has become functionally obsolete for modern manufacturing use.  In these situations, a zoning variance may offer relief.

Because the broad application of the Zoning Resolution can create situations where it is difficult or impossible to develop a parcel of land on an as-of-right basis, the ability to apply for a zoning variance helps to insulate municipalities against claims of unconstitutional regulatory takings.  In this regard, variances have been described as a constitutional “relief valve” because they protect the integrity of the overall zoning framework and safeguard the government’s ability to regulate the use and development of private property.

Unlike a rezoning, a variance does not modify the zoning map or amend the zoning regulations that apply to a piece of property.  Instead, a variance is a complete or partial waiver of one or more zoning regulations to alleviate a hardship associated with a particular site.  In this regard, a variance can be considered a discretionary exception to the applicable zoning regulations.  In New York City, applications for zoning variances are heard and decided by the Board of Standards and Appeals (“BSA”).

The Board of Standards and Appeals

The BSA is an independent body that plays an integral part in the city’s system for regulating land use.  It is empowered to grant relief from the Zoning Resolution by issuing variances of the zoning regulations in certain instances.  In addition, the BSA also is responsible for, among other things, issuing certain special permits prescribed in the Zoning Resolution, deciding appeals to vest projects where a zoning change has occurred before construction is complete, and acting upon administrative appeals by property owners whose proposals have been denied by the Department of Buildings.

The Board itself consists of five full-time commissioners appointed by the mayor for a term of six years each.  The composition of the Board must include at least one urban planner, one architect, and one engineer, and no more than two commissioners may reside in any one borough of the city.  The Board is supported by a staff of urban planners, attorneys, and other professionals.

In reaching its decisions, including with respect to granting zoning variances, the BSA is limited to the specific findings and remedies set forth in state and local law, and the Zoning Resolution, including, where required by law, an assessment of potential environmental impacts.

The Five Findings

In order to grant a variance, the BSA must determine that each of the five findings set forth in Section 72-21 of the Zoning Resolution has been satisfied.  The five findings are referred to by the letter section that they appear under in the Zoning Resolution, as follow: 

“A Finding”: There are unique physical conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to and inherent in the particular zoning lot; and that, as a result of such unique physical conditions, practical difficulties or unnecessary hardship arise in complying strictly with the use or bulk provisions of the Zoning Resolution; and that such conditions that create practical difficulties or unnecessary hardship are unique and not generally found in the neighborhood or district.  However, religious and educational institutions have a presumptive benefit to the communities that they serve and are entitled to rely on their “programmatic needs” to make this finding; case law holds that applications by such institutions should be granted unless they can be shown to have an adverse effect on the health, safety, or welfare of the community.

“B Finding”: That because of the physical conditions there is no reasonable possibility that the development of the zoning lot in strict conformity with the provisions of the Zoning Resolution will bring a reasonable return, and that the grant of a variance is therefore necessary to enable the owner to realize a reasonable return.  However, this finding is not required for an application made by a non-profit organization.

“C Finding”: The variance, if granted, will not alter the essential character of the neighborhood or district in which the zoning lot is located, will not substantially impair the appropriate uses or development of adjacent property, and will not be detrimental to the public welfare.

“D Finding”: The practical difficulties or unnecessary hardship claimed as a ground for the variance have not been created by the owner or by the predecessor in title.  However, where all other required findings are made, the purchase of a site subject to the restrictions sought to be varied does not itself constitute a self-created hardship.

“E Finding”: The variance, if granted, is the minimum variance necessary to afford relief.  This finding ensures that the grant of the variance does not result in a windfall to the applicant.

The Variance Process

The BSA can only act upon a variance application where an applicant has first received an objection from the Department of Buildings (“DOB”) for the proposed project.  Prior to filing the application with the BSA, plans must be filed with the DOB to obtain a Notice of Objections setting forth the specific zoning non-compliances raised by the proposed project.  These non-compliances will form the basis of the variance application.

The principal components of a variance application are sets of plans showing a conforming or as-of-right development and the proposed project identifying the required zoning waivers, a written statement that explains how the application satisfies the five findings, evidence in support of the findings (such as topographical surveys or geotechnical reports), and the materials necessary for the BSA to complete the required environmental review.  The applicant team will typically include land use counsel, an architect, a financial consultant, and an environmental consultant.  The public review process for a variance commences upon filing of an application with the BSA.  The application must be filed within 30 days of the issuance of the DOB Notice of Objections; otherwise the applicant must obtain a fresh objection sheet from the DOB.  

After filing, the application is referred by the applicant to the local Community Board, which has 60 days from its receipt of the application to hold a hearing and issue an advisory recommendation to the BSA.  While the application is being reviewed by the Community Board, the staff of the BSA will review the application to determine if all of the required information has been provided and in the prescribed format.  In most cases, the BSA staff requests one or more revisions to the application materials and/or additional information, which is communicated to the applicant in the form of a written Notice of Comments.  The applicant must respond in writing to each comment.  Staff review of the application materials and issuance of the Notice of Comments typically takes between 45 and 60 days.

After the Community Board has issued its recommendation (or 60 days have elapsed without a recommendation having been made) and BSA staff has determined that the application is complete, the application will be calendared for a public hearing before the Board.  Under the BSA’s rules, the hearing date must be at least 30 days after notice thereof is sent to the applicant.  Within this period, the applicant is required to provide written notice of the hearing to the Community Board, the affected Council Member, the Borough President, the City Planning Commission and all “affected property owners”, which is defined as the owners of all property within a 400-foot radius of the applicant’s property.  The BSA may hold one or more public hearings in order to decide on the application.  Its decisions are final and binding, and may be reversed only if challenged in the courts, which challenge must be filed within 30 days of the decision being issued.  The courts have consistently deferred to the BSA’s interpretation of the Zoning Resolution in matters relating to its expertise, and will set aside a decision only if it is found to be arbitrary or capricious or unsupported by substantial evidence. 

Sweet Relief

Once a variance application is prepared and filed, the process can be expected to take between seven months and a year depending on the complexity of the application.  Overall, an application for a variance takes significantly less time and cost than a rezoning and is subject to less political risk because the scope of review is tied to the specific statutory findings (and, unlike a rezoning, there is no City Council oversight).  With this in mind, a zoning variance may provide an advantageous form of relief where an owner or developer has site-specific development hardships that prevent them from realizing a reasonable return on their investment.  Armed with the right team of professionals, sophisticated parties may see opportunity where others see only a substandard or undevelopable parcel.