What’s the Use of Applying For Use Variances?

October 01, 2019

New York’s Town Law, Village Law, and General City Law all permit property owners to apply for area and use variances when they want to develop their property in a way that is not permitted by local zoning rules.

Town Law § 267(1), and corresponding sections of the Village Law and General City Law, define and distinguish between area and use variances. As they explain, an area variance is an authorization by a zoning board of appeals for the use of land in a manner that is not allowed by the dimensional or physical requirements of the applicable zoning regulations. By contrast, a use variance is an authorization by a zoning board of appeals for the use of land for a purpose that otherwise is not allowed or prohibited by the applicable zoning regulations.

Property owners seeking a variance are more likely to obtain relief when they apply for an area variance rather than a use variance. That’s because, as the New York Court of Appeals observed in Matter of Colin Realty Co., LLC v. Town of Hempstead, 24 N.Y.3d 96 (2014), the standard for a use variance “is clearly harder to satisfy than the test for an area variance.” Indeed, courts generally find that applicants fail to satisfy the requisite proof for the granting of a use variance, invalidating board decisions that grant this relief and upholding denials.

Anthony S. Guardino can be reached at aguardino@farrellfritz.com.

Reprinted with permission from New York Law Journal, Wednesday, September 25th, 2019, Vol 262 – No. 61

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  • Related Practice Areas: Land Use & Municipal, Real Estate
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