If you are proposing a property development that does not comply 100% with the Zoning Resolution of NYC, this will require special approval. This approval is known as a Zoning Variance. A Zoning Variance can be requested in NYC as a special approval to develop a property in a manner that contradicts one or more codes within the NYC Zoning Resolution.
In NYC, Zoning Variances are under the jurisdiction of the Board of Standards and Appeals (BSA). They must satisfy a collection of criteria. The applicant must prove that the property has a unique characteristic and hardship, that the proposed development conforms to the character of the neighborhood, that the unique condition or hardship was not created by current owner, and the application must be for the minimum variance necessary to resolve the hardship.
Receiving a Zoning Variance in NYC from the BSA
I am an architect in NYC and owner of NYC Architecture Firm: Fontan Architecture. We have a project in Astoria, Queens which required a zoning variance in order to proceed with the development. I am pleased to say that the Board of Standards and Appeals voted in favor of our application. In this post I will review this particular case and use it as an example to outline the requirements for a zoning variance in NYC.
Proposed Property Development
My client purchased a property in Astoria, Queens in order to develop it as a new Townhouse. They hired me to be their architect and design their house. We encountered an issue with the zoning on the property. The house was on a 21 foot wide lot in an R5 Zoning district. In certain situations, you may need to provide one or more side yards when developing in an R5 Zoning District. In our particular case, we were required to provide one 8′ side yard. Having an eight foot side yard meant that on a 21 foot wide lot we could only build a 13 foot wide townhouse. The width is measured from the outside walls of the house, which means the inside dimension of the house would be way too narrow to be truly functional. This was a serious problem.
As of Right
The term “As of Right” is in reference to a proposed development that complies 100% with the applicable regulations. The application still needs to be approved, but should be approved without issue, as the applicant is within their rights to develop.
Discretionary Action
A zoning variance is a discretionary action. It is an application to develop a property in a manner that is not 100% in accordance with the zoning regulations. This type of application must be reviewed on a case by case basis. Its approval is at the discretion of the review board.
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 13 foot wide house would be an “As of Right” condition. A 21 foot wide house would be a “Discretionary Action,” requiring a zoning variance. My client was of course hoping to build a 21 foot wide house on this lot. This would not be allowed by code because of the 8 foot side yard requirement. We therefore 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 I can tell you about getting a zoning variance is that there are no guarantees. They may approve it, they may not. It is up to them. The second most important thing is that you cannot get a zoning variance just because you want it. They do not care what you want, they do not care about your story. The NYC Zoning Resolution outlines very specific requirements to receive a zoning variance.
The Board’s function is to review your application and determine if they believe you are in compliance with the required items for a zoning variance. These are known as “findings.” If they agree that you satisfy the requirements then you will get the variance. This has nothing to do with anything else. It is not about arguing, or about having a heartfelt story. It is about the code.
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 Characteristic of the Neighborhood
- Hardship Not Caused by Current Owner
- Minimum Variance Necessary
Variance Streetscape Collage
Unique Characteristic
In order to qualify for a zoning variance in NYC, you must first prove that there is a Unique Physical Condition on the property. This will require an analysis of the existing site and the surrounding neighborhood. This is an incredibly critical aspect of the application. If you cannot prove the unique quality, you will not get very far in the variance process.
In our example the unique characteristic was the property width. We analyzed the surrounding area and found that the properties which provided a side yard were in fact wider than ours. This is a very strong aspect to the case and will be taken very seriously during the review.
Hardship
The unique characteristic has to pose a hardship on the property development. You need to identify a specific problem caused by the unique condition which encumbers the property owner and creates a unreasonable burden.
Our specific project would result in a 13 foot wide house. This would not only be very unusual for this area, but would also be impractical for a family. This became a bigger issue as we were also providing an indoor garage to satisfy the zoning requirement for parking.
Does Not Alter Characteristic of the Neighborhood
Any proposed development must not alter the characteristic of a neighborhood in a negative fashion. You must be proposing something that is reasonable in the location. It also can not bring any adverse impact to the community. You will be required to present the development to the community board. This will be an important part of the application process.
We proposed a home in an area filled with one and two family houses, as well as 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 to the community board, they voted unanimously in favor of our application. Our request was a very clear and reasonable one, and they agreed.
Hardship Not Caused By the Owner
The unique condition and hardship cannot have been caused by the owner in order to qualify for a variance. This means if you divided a lot into 2 smaller lots and then wanted a variance because the lots were difficult to develop, it would be your fault for creating the problem. In that case you would not be getting a variance.
In our application we found historic 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, it must be the minimum variance necessary. You can not over-ask when asking 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 to not get greedy. If you make a reasonable request, the chances of approval are much higher.
On our variance we made a case that providing a smaller rear yard would be pointless and would provide insufficient benefit to the proposed development.
New Development Zoning Variance NYC
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 is a lengthy process with plenty of bureaucracy and will most likely take at least a year to obtain, if not more. There are no guarantees that your variance will be approved. I would caution you against working with people who over-promise and do not address the possibility of denial.
As an architect, I study property development and zoning, but New York City Zoning is very complicated. Every project is different and must be assessed on its own unique characteristics. This post does not assume to cover every possible issue or condition but provide a general overview of the topic. This post is not a substitution for the NYC Zoning Resolution or any other applicable Codes or Regulations.
Thank you for reading our blog post on NYC Zoning Variances
I hope this was helpful. Please leave questions and comments below. If you would like to speak with an architect about a potential project you can contact us directly.
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.
