Obtaining a Zoning Variance in NYC

by | Last updated Jun 22, 2020 | Published on Jun 22, 2020 | NYC Zoning, Property Development

If you are proposing a property development that does not comply 100% with the Zoning Resolution of NYC this would require a special approval known as a Zoning Variance to proceed with the development. A Zoning Variance can be requested in NYC as a special approval to develop a property in a manner that contradicts the 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) and must satisfy the following 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 NY 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 1 or even 2 side yards when developing in an R5 Zoning District. In our particular case we were required to provide one 8′ side yard. Have an eight foot side yard would mean that on the 21 foot wide lot we could only build a 13 foot wide townhouse. The 13 foot wide 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. This is to say the application must be approved but should be approved as the applicant is within their rights to develop.

Discretionary Action

A zoning variance is a discretionary action in that 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 and it’s 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 and the 21 foot wide house would be a “Discretionary Action” requiring a zoning variance. My client of course was hoping to build a 21 foot wide house on this lot. A 21 foot wide would not be allowed by code because of the 8 foot side yard requirement. We would therefore file for a zoning variance in order to develop the property in the manner our client was hoping for.

The two most important things I can tell you about getting a zoning variance is first that there are no guarantees. They may approve it, they may not. It is up to their discretion. The second and more important thing I can tell you 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
  • Not Alter the Characteristic of the Neighborhood
  • Hardship Not Caused by Current Owner
  • Minimum Variance Necessary
Variance Streetscape Collage

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 analysed 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 or problems caused by the unique condition which encumber the property owner in a manner where that creates an unreasonable burden.

Our specific project would result in a 13 foot wide house which would not only be very unusual for this area but would be an impractical use for a family. Especially when we were 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 and that will not bring any adverse impact to the community. You will be required to present the development to the community board and 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 and even smaller than the adjacent multifamily building. When we presented to the community board they voted unanimously in favor of our application. In my opinion 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 and you will 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 and before even the current zoning codes were 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, do not get greedy, make a reasonable request and 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

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 1 year to obtain if not more. There are no guarantees that your variance will be approved and I would caution you against working with people who over promise and do not address the possibility of denial.

As an architect, I study design and development, but these are complicated and quite involved issues. 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.

 


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.

 

Contact Fontan Architecture

 

Jorge Fontan
Jorge Fontan

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 15 years where he has designed renovations and new developments of various building types.

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