The New York City Zoning Resolution establishes all of the zoning use and bulk requirements for new developments and alterations to existing buildings. Sometimes, due to unique conditions, following these regulations can be difficult and even impossible, making a development physically or financially unfeasible. If the zoning regulations create a legitimate hardship, one can apply for a Zoning Variance. The variance can provide relief from a particular regulation if approved.
How To Apply for a Zoning Variance in NYC?
To apply for a Zoning Variance in NYC, you must first file with the Department of Buildings and obtain a Zoning Objection. After DOB disapproves the application, you can file with the Board of Standards and Appeals (BSA) for a Zoning Variance. You must prove that hardship is caused by the specific regulations for which you seek relief.
I am Jorge Fontan, an architect in New York and owner of Fontan Architecture, a Manhattan-based architecture firm. At our office, we work on various project types, including developments and alterations that require Zoning Variances. In this post, I will discuss the procedure and requirements for a Zoning Variance application in NYC, using examples from projects where we successfully obtained Zoning Variances for our clients.
Criteria for a Zoning Variance in NYC
Unique Physical Condition: The property must exhibit some unique physical condition, for example, being a shallow or narrow lot smaller than the typical lot in the given area.
Hardship: The unique condition must create a hardship for the proposed use or development of the specific property.
Will Not Alter the Character of the Neighborhood: To obtain approval on a Zoning Variance, we must prove that the development will not negatively impact the neighborhood’s character.
Hardship Can Not Be Created by the Owner: The unique condition cannot be created by the owner. This means that if the lot is narrow, for example, the owner would have to have purchased the land that way. If the owner subdivided the lot themselves and created a narrow lot, then they would be responsible for the hardship, and the BSA would not issue a variance.
Minimum Variance Necessary: The variance request must be for the minimum variance necessary to provide relief from the particular zoning regulation that is causing a hardship.
Approved Side Yard Variance Example
We had a client who purchased a property in Astoria, Queens, where he wanted to build a house for his family. The property was twenty-one feet wide and one hundred feet deep. The zoning regulations at this specific location required an eight-foot side yard. This requirement meant that the house would only be thirteen feet wide. This is very problematic as a thirteen-foot-wide house is clearly substandard for New York City homes (or anywhere, for that matter). We decided to go for a variance on this one because we believed that a regulation that would force someone to build a thirteen-foot-wide house is a hardship.
Zoning Side Yard Requirement
Aside from having a hardship, you must prove a “Unique Physical Condition” to get a Zoning Variance. In this case, we presented an analysis of the neighborhood proving that the vast majority of the houses were much wider than thirteen feet and that if you look at twenty-one-foot wide properties (and properties close to twenty-one feet), they had houses much wider than thirteen feet.
The Board of Standards and Appeals requires us to present drawings of an “As-of-Right” house and the variance house. As-of-right means what you can build if you follow the zoning regulations exactly without any variance or special permits. In this case, the As-of-Right house is thirteen feet wide.
Zoning Hardship As-of-Right
Along with presenting an As-of-Right design to the BSA, we also present what we actually want to build: a house with a zoning variance. In this case, it was a twenty-one-foot-wide house. I am happy to report that they approved our twenty-one-foot-wide house, and after a long road, they issued us a Zoning Variance. We have another post if you want to read more about this Side Yard Zoning Variance.
Zoning Variance Application
Approved FAR Variance
The following example is of a Floor Area Ratio Variance. Floor Area Ratio or FAR is a formula that determines the allowable square footage of a building in proportion to the lot area. You multiply the lot area by the FAR for the particular zoning district. The resulting number is how many square feet the building can be.
Our client purchased a very small empty lot where they were hoping to build a new townhouse in Williamsburg. The Floor Area Ratio calculations for their property resulted in a small house. The diagram below shows orange for the three-story house we could build As-of-Right and yellow for the additional floor area we requested from the Board of Standards and Appeals.
Floor Area Zoning Variance in NYC
We presented how most single-family townhouses in that area were larger than what our client could build and that their house would be undersized due to their small lot. The Board of Standards and Appeals agreed and granted us a Zoning Variance for the Floor Area. If you want to read more about this project, you can see a more detailed explanation in another post we wrote: Floor Area Ratio Zoning Variance.
Discretionary Actions
The most important thing I can tell you about applying for a Zoning Variance is that it can be denied. A Zoning Variance is considered a “Discretionary Action,” which means that the BSA does not have to give it to you.
The NYC Board of Standards and Appeals (BSA) has the right and authority to deny or approve a zoning variance at its discretion. The board will review the variance request and assess it on its merits, and then it will vote on whether or not to grant the variance.
Zoning Variance in NYC
If you want to file for a Zoning Variance, you need to work with a team that understands how to get variances approved. You also need to be realistic and avoid going overboard with your request. Asking for too much may hurt your chances of getting approval.
Thank You for Reading Our Blog Post on Getting a Zoning Variance in NYC
I hope this was helpful. If you would like to speak with an architect about a potential project, you can contact us at Fontan Architecture directly.
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This post was written by Jorge Fontan AIA a Registered Architect and owner of New York City architecture firm Fontan Architecture. Jorge Fontan has earned 3 degrees in the study of architecture including two degrees from the City University of New York and a Masters Degree in Advanced Architectural Design from Columbia University. Jorge has a background in construction and has been practicing architecture for 20 years where he has designed renovations and new developments of various building types.
