Area Variances as a Special Use Permit ‘Workaround’

January 26, 2022

Thirty years ago, in 1992, the New York Legislature enacted legislation that included new Town Law §274-b, defining and governing approval of special use permits, a widely used zoning device previously unmentioned in New York statutes. See, also, General City Law §27-b; Village Law §7-725-b (identical special use permit authority).

Town Law §274-b defines a special use permit as an authorization of a particular land use “permitted in a zoning ordinance or local law,” subject to requirements imposed by the zoning ordinance or local law to assure that the proposed use “is in harmony” with the zoning ordinance or local law and “will not adversely affect the neighborhood if such requirements are met.”

Generally speaking, a zoning board, zoning board of appeals (ZBA) or other board with jurisdiction over applications for a special use permit must grant an application if it satisfies the criteria set forth in the local zoning law. By the same token, numerous courts made it clear that the failure to meet any one of the conditions set forth in the local ordinance was a sufficient basis upon which the zoning authority could deny the permit application. See, e.g., Matter of Wegmans Enterprises v. Lansing, 72 N.Y.2d 1000 (1988).

Reprinted with permission from New York Law Journal, Wednesday, January 26, 2022, Vol 267 – No. 17.

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