Use Variances

Use Variances

A use variance is permission granted to a parcel of land so that it may be used for something not allowed by the zoning code.

As of 8/7/2013, the ZBA hears use variances, but not special use permits.  New York law has stricter standards for use variances than for area variances.

For example, the applicant may want to build a gas station in an area which is zoned for residential use.  For this type of variance, NY State law is much more stringent.  In order to be granted a Use Variance, the applicant must prove “unnecessary hardship” by demonstrating that:

   (1) For each and every permitted use in that zone, the applicant is substantially unable to make a reasonable return from the property, as shown by competent financial evidence;
    (2) The hardship is somewhat unique, or at least not shared by a majority of parcels in the same zoning district;
    (3) The hardship has not been self created; and
    (4) The variance will not alter the essential character of the neighborhood.

A critical difference here is that for a Use Variance the applicant must pass all four of these tests.  The test doesn't weigh any benefits against any detriments, like the analysis of an area variance.

This is information meant to be a useful starting point for applicants and the public.  Consult with an attorney for advice about your particular concern or situation.