Obtaining a Zoning Variance in NYC

If you are proposing a property development that does not fully comply with NYC’s Zoning Resolution, you will need a Zoning Variance. A Zoning Variance is a special approval to use or develop a property in a manner that does not fully conform to or comply with the Zoning Resolution.  

In NYC, Zoning Variances are under the jurisdiction of the Board of Standards and Appeals (BSA). The applicant must prove that the property has unique characteristics and hardships that they did not create and that the proposed development conforms to the neighborhood’s character. Additionally the application must be for the minimum variance necessary to resolve the hardship. 

 

Receiving a Zoning Variance in NYC from the BSA

I am Jorge Fontan, an architect in NYC and owner of NYC-based architecture firm Fontan Architecture. In our office, we work on various project types, including those that require zoning variances. We had a project in Astoria, Queens, to design a new townhouse, which required a zoning variance to proceed with the development. I am pleased that the Board of Standards and Appeals voted in favor of our application and granted us a variance. In this post, I will review the requirements for a zoning variance in NYC using this particular case as an example.

 

Proposed Property Development

When the property owner hired us to design the house, we realized there was a zoning issue that would make the development difficult. The house was on a twenty-one-foot-wide lot in a zoning district that required an eight-foot side yard. Having an eight-foot side yard meant that on a twenty-one-foot-wide lot, we could only build a thirteen-foot-wide townhouse. A thirteen-foot-wide house would be way too narrow to be truly functional. Providing the side yard would have been a serious problem.

 

Zoning Variance, Video Explanation 

Below is a video presentation on the process for obtaining a Zoning variance in NYC.

 

Zoning Variance Application

In our case, the thirteen-foot-wide house would qualify as an “As-of-Right” condition. As-of-Right means that the development would fully comply with all Zoning Regulations.

A twenty-one-foot-wide house on this property would require a zoning variance, which is a “Discretionary action.” The Agency Having Jurisdiction can approve or deny a Discretionary action application.

Of course, we would prefer to build a twenty-one-foot-wide house on this lot. However, this would not have been allowed by code because of the eight-foot side yard requirement. Therefore, we had to file for a zoning variance in order to develop the property in the manner our client was hoping for.

The most important thing about getting a zoning variance is that there are no guarantees. They may approve it, or they may not. It is up to the discretion of the Board of Standards and Appeals. The second most important thing I can tell you is that you cannot get a zoning variance just because you want it. You have to qualify in their eyes for a zoning variance. The NYC Zoning Resolution outlines very specific requirements to receive a zoning variance. We have another post if you want to read more about the Criteria for a Zoning Variance in NYC. 

The Board’s function is to review your application and determine if they believe you comply with the required items for a zoning variance. If they agree that you satisfy the requirements, then you may get the variance. The approval has nothing to do with arguing or having a heartfelt story. It is about fulfilling the requirements and properly presenting them. 

 

NYC Zoning Variance Requirements: 

The NYC Zoning resolution outlines the following requirements in order to obtain a zoning variance:

• Unique Characteristic
• Hardship
• Does Not Alter the Characteristics of the Neighborhood
• The Current Owner Did Not Cause Hardship
• Minimum Variance Necessary

 

Unique Characteristic

To qualify for a zoning variance in NYC, you must first prove that there is a Unique Physical Condition on the property. Determining this will require an analysis of the existing site and the surrounding neighborhood. This requirement is an incredibly critical aspect of the application. You must prove the unique quality to get a variance.

In our example, the unique characteristic was the property width. We analyzed the surrounding area and found that the properties providing a sideyard were, in fact, wider than ours. This fact was a powerful aspect of the case and was taken very seriously during the review.

 

Hardship

The unique characteristic must pose a hardship on the property development. You need to identify a specific problem caused by the unique condition that encumbers the property owner and creates an unreasonable burden.

Without a variance, our specific project would result in a thirteen-foot-wide house. This would not only be very unusual for this area but also impractical for a family. 

 

Does Not Alter Characteristics of the Neighborhood

Any proposed development must not alter the character of a neighborhood. You must propose something that is reasonable in the location. It also can not have any adverse impact on the community. You will be required to present the development to the community board, who will vote on your proposal. This vote will be considered by the Board of Standards and Appeals when reviewing your application. 

We proposed a home in an area filled with one- and two-family houses and some small multifamily buildings. Our proposed development followed all other zoning regulations and was more or less the same size as most of the neighboring homes. It was even smaller than the adjacent multifamily building. When we presented our application to the community board, they voted unanimously in favor of it. Our request was a very clear and reasonable one, and they agreed.

 

Hardship Not Caused By the Owner

To qualify for a variance, the owner cannot have caused the unique condition and hardship. This requirement means if you divided a lot into two smaller lots and wanted a variance because the lots were difficult to develop, it would be your fault for creating the problem. In that case, you will not be getting a variance.

In our application, we found historical documentation to prove that the property was divided long before our client purchased it, way before the current zoning codes were even in effect.

 

Minimum Variance Necessary

In order to receive a variance, the application must request the minimum variance necessary. You can not over-ask when applying for a variance. The request must be fair and reasonable. In my opinion, this may be the hardest one to comply with, as it can be subjective. The bottom line is don’t get greedy. If you make a reasonable request, the chances of approval are much higher.

On our variance, we argued that providing a smaller side yard would be pointless and would not benefit the proposed development sufficiently. The Board agreed with our position. 

 

Getting a  Zoning Variance in New York City

A zoning variance is all about fulfilling the requirements to qualify, as illustrated in the NYC Zoning Resolution. This procedure is lengthy and full of bureaucracy. The variance will most likely take at least a year to obtain, if not more. There are no guarantees that your variance will be approved. If you want to read more, we have another post on How to Get a Zoning Variance in NYC. 

 

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Thank you for reading our blog post on NYC Zoning Variances

I hope this was helpful. Please leave questions and comments below. You can contact us directly if you would like to speak with an architect about a potential project.

 

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