Areas within most municipalities are separated according to use, geography and other features. One of the most common means is separation by zoning districts. Zoning districts for example distinguishes an industrial area from residential or business areas. Within each zoning district, the same sized piece of land may have very different sets of regulations that pertain. The districts are set forth by a map, which tend to reflect some physical features, transportation, and related use of the area. When we adhere to the zoning regulations, it is deemed that the project will be built “as-of-right“.
Many times however, the regulations are too restrictive for a certain use or size of a project and the owner must seek permission to build in spite of the zoning regulations. When this occurs it is known as “seeking a variance” because the project will be “non-conforming“. The variance is the permission granted to allow the owner to use the property in manner not prescribed by law. These laws are usually quite lengthy and complicated and one should seek professional advise before attempting to buy or build on a property where variances may be required. Many variances can be handled by architects, but some of the more complicated matters should be turned over to a land-use attorney.
To begin the process of obtaining a variance, an application usually has to be submitted to the municipality outlining the basic intention of the project usually in the form of drawings, issuance of public notices and various forms. The regulations that will be adhered to and not adhered will be identified and documented by the municipality (a building department, zoning board or similar agency) The project usually will need a letter or similar document from the municipality denying the application on the grounds that certain aspects of the zoning regulations will not be met. This is called a “denial letter“. This denial letter is important, because it enable one to go to an agency such as the Zoning Board of Appeals to overturn (appeal) that decision- if the Zoning Board of Appeals believes that you have a good case.
What is a good case? Hardship? Precedent? It depends. There is usually a municipal board that listens carefully, reviews the findings and renders a decision. They are careful and try to weigh all the sides of the decision, as many people and large sums of money may be involved. They also want to be careful not to set a future precedent that can be used against their future cases. Occasionally, more information or investigation may be needed or additional input from other municipal boards like wetlands, planning or commerce may be requested. There are at least 5 “balancing points” that have to be addressed when weighing the benefit to applicant vs detriment to the neighborhood:
1.Undesirable change to the neighborhood or detriment to adjacent property?
2. Is the project achievable by other feasible alternatives?
3. Will there be an adverse impact on the environmental / physical nature neighborhood?
4. Is this a substantial variance?
5. Is this a self-created hardship?
There can be lots of grey area in these questions and lots of bargaining that ensues stemming from these answers. Some projects take multiple meetings until all the information is vetted out and a verdict can be established. The meetings are generally public and often attended by concerned neighbors who could be affected by the project. Do your homework and try to find out their sentiments before the meeting, rather than a public pillory.
We’ve done plenty of variance work, and would love to answer any questions you might have. Call us now at 914 674 2950. We also work side by side with highly qualified land-use attorneys and would be happy to put you in touch.
