A Very Basic Introduction to Zoning in New York

by: Stephen G. Limmer, Esq.

1. SCOPE OF THIS ARTICLE:

Treatises on zoning usually comprise three or four volumes. This article is merely meant as an introduction to the lay person who is first confronted with a building inspector's notice that he or she must obtain a variance, and for the attorney who may be preparing a presentation to a zoning board of appeals.

2. THE LANGUAGE:

1. ZONING is basically a municipality's regulation on how you can build upon and use your property. In adopting zoning regulations, a municipality is required to have a master plan. Such master plans, often consisting of the zoning code itself, will usually establish different zoning districts, whereby residential, business, and industrial areas are segregated.

2. VARIANCES are requests to build upon or use a piece of property in a manner or for a purpose which is not permitted under the municipality's zoning regulations for that particular zoning district. Each municipality with the power to zone adopts its own regulations, and those regulations are amended on a regular basis. Therefore, it is essential to obtain an up-to-date copy of the zoning regulations for the municipality within which the property is located. You cannot assume that the regulations or the definitions of another municipality are the same as the municipality within which the property is located. Simple definitions of such things as "height," "floor area ratio," and "accessory structures" often differ significantly from village to village. There are two types of variances, "area variances" and "use variances."

3. AREA VARIANCES give property owners relief from the need to comply with dimensional or physical requirements of zoning regulations, such as set backs from property lines, limitations on height, building area or floor area.

4. USE VARIANCES give property owners relief from the need to comply with use restrictions in that particular zoning district, such as having an office in a residential district, or an animal hospital in a business district.

5. SIMILAR USE PERMITS when authorized by the municipal zoning regulations, may be granted to permit the use of a parcel for a use that is similar to those uses expressly permitted in that zoning district, even though it is not specifically mentioned.

6. CONDITIONALLY PERMITTED USES, also referred to as specially permitted uses, or special exception uses, are those uses that the municipality has determined are appropriate for that particular zoning district so long as certain conditions are met.

7. ZONING BOARD OF APPEALS, or board of appeals, or board of zoning appeals, is the board ("zoning board") required by New York State law to exist in every municipality that has a zoning code. The zoning board is authorized and obligated to grant relief from zoning codes when certain statutory criteria are satisfied.

3. PREPARATION OF AN APPLICATION:

1. KNOW THE LAW:

Before you decide whether or not to seek a variance, you must know the law that affects your application. The criteria are different for area variances, use variances, public utilities, houses of worship, and schools, and other unique categories based upon state or federal legislation and preemption. The criteria with regard to houses of worship, other religious institutions, and schools are beyond the scope of this article, but the reader should be aware that federal law grants additional rights to religious institutions, in substance providing that a municipality cannot substantially burden a religious institution unless there is a compelling governmental reason for doing so. In such event, the burden must be the least restrictive manner necessary to achieve the compelling governmental interest. Many attorneys who practice in this area, including the author, believe that that legislation will be challenged and will be found unconstitutional, but, as of the date of this article, there are no reported cases of such a challenge.

An alternative to seeking a variance from the zoning board is to seek a change in the zoning regulations from the legislative board of the muncipality. A zoning board does have limitations on its powers and therefore, in some instances, an approach to the board of trustees or town board for a change in the zoning regulations may be quicker and more successful than an attempt to obtain a variance.

You may believe that your project satisfies the applicable zoning code, that you do not need a variance, and that the local building inspector made a mistake in denying your application. If so, you have a limited time to appeal that determination, and you may want to join in one application to the zoning board both an appeal of the building inspector's determination and, in the alternative, a variance request.

2. KNOW THE FACTS:

Know exactly what relief you need and to which board you must a0pply for such relief. Depending upon the municipality's rules, sometimes an application for a similar use permit or a conditional use permit must go to the board of trustees or the town board instead of the zoning board. Variances always must be sought from the zoning board.

Determine whether there are alternatives to the variance you seek that would either obviate the need for, or limit the extent of, the variance.

Does your project differ substantially from the manner in which other properties in the area have been developed or are being used? Zoning is supposed to be based upon a common plan, so knowing that there are many other similar uses or properties developed in the same manner is essential. It has been held that a municipality cannot require a property owner to conform to a standard that none of the other property owners in the community meet. For example, suppose that a municipality upzones its residential district to require one-acre zoning, and all of the other properties within a half mile radius of yours are only one-half acre in size. In that case, you should be allowed to subdivide your one acre parcel into two one-half acre parcels. You cannot be required to be an island of conformity in a sea of nonconformity.

Accordingly, to know the facts, you must visit the site and examine the nearby community. If you are dealing with a single-family home and are seeking a variance for a front yard setback or for the height of the home, what are the setbacks or heights of the nearby homes? If you want to build within a side yard or rear yard setback, how will it affect those adjacent properties? Often the topography, existing or proposed screening (landscaping and fencing), or the structures on or uses of the adjoining property can be presented to a reviewing board to show that the granting of your application will have a de minimis, if any, adverse impact on the adjacent property owners.

3. NEIGHBORS' CONSENTS:

A zoning board is required to make its own decision and not to base its decision on a large public outcry either for or against an application. However, board members are people, and the more "affected" people who sign documents supporting your application or who speak at a hearing in support of your application, the easier it is for a zoning board to conclude that the granting of the application will not impose an adverse impact upon those neighbors.

4. FILLING OUT THE PAPERS:

Try to obtain all of the information requested in the application and make sure that it is correct. When describing the relief that you need, be specific and set forth your legal position. The more accurate the papers and the clearer your position, the better the zoning board members will understand what you are seeking. It does not help your application if you antagonize or frustrate the board by misstatements or omissions of relevant facts, or by failing to provide accurate and understandable drawings.

5. NOTICES TO PROPERTY OWNERS:

You are usually required as part of the application to send notices to property owners within a certain radius of the subject property to advise them of the meeting. Those notices usually have to be sent within a designated window (for example, not less than ten nor more than twenty days before the hearing). Check with the municipality to find out where they want you to check for the names of those property owners. It may be the county clerk, the municipality's assessment roll, or somewhere else. If it is merely the last owner or record, the list should come from the county clerk's office.

4. THE HEARING:

1. Identify what you must tell the zoning board. Remember, this is your only chance. If you are dissatisfied with the determination of the zoning board, although there is a procedure for a rehearing (a rehearing requires a unanimous vote of the board), you will have to go to court in an Article 78 proceeding to challenge the board's determination. In that proceeding, the court will base its review on the record before the board, which will include your oral presentation, the application papers and whatever else you (or any parties in opposition) submit. So long as there is a rational basis for the board's determination based upon the record, the court is not allowed to substitute its judgment for that of the board, and it must uphold the board's determination.

2. The author has found that respect and deference to a zoning board usually works better than aggressive presentations assuming a legal entitlement. Although "groveling" may be too strong a term, remember that the board members are residents who have volunteered to serve on the zoning board, usually for no compensation. Being polite and trying to work with them, answering their questions, and showing them deference, without unnecessarily foregoing your, or your clients' rights, is usually more successful than strong confrontation and reliance upon an expensive, and unpredictable, court battle to vindicate your or your client's rights. However, some practitioners have met with success using an aggressive presentation style that tends to put board members on the defensive. To some extent it depends upon the board to whom the presentation is being made.

3. Do you need experts? Depending upon the criteria upon which the board will be basing its determination, traffic experts, planners, appraisers, environmentalists, engineers, or other experts might be essential to your case.

4. Criteria for area variances:

In making its determination on an area variance application, the zoning board is required to take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant. The board must consider: (1) 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) 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) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.

The zoning board, in the granting of area variances, is required to grant the minimum variance that it deems necessary and adequate and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.

5. Criteria for use variances:

The zoning board is prohibited from granting a use variance 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 must demonstrate that, for each and every permitted use under the zoning regulations for that particular zoning district, (1) the applicant cannot realize a reasonable return, provided that lack of return is substantial; (2) 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) the requested use variance, if granted, will not alter the essential character of the neighborhood; and (4) the alleged hardship has not been self-created.

The zoning board, in the granting of use variances, is required to grant the minimum variance that it deems necessary and adequate and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.

The zoning board may impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed use of the property. Such conditions shall be consistent with the spirit and intent of the local zoning law, and shall be imposed for the purpose of minimizing any adverse impact the variance may have on the neighborhood or community. You should note, however, that a board of trustees can reject a change of zone application, or, in fact, elect not even to consider same, and you would not have even the recourse of an Article 78 proceeding to review such a decision (or inaction).

Because of the great difficulty in obtaining a use variance, it is always advisable to consider whether or not it may be more feasible to apply to the board of trustees or town board for a change of zone.

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