Despite the Fifth Amendment’s protections for private property, no one has free reign to do whatever they want on their property. We live in a civilized society, a nation of laws. The use of private property is subject to the rights of neighboring landowners and the police power of local government.
Every village, town, and city in the State of New York has the right to adopt a zoning code to regulate the use of private property. Zoning codes divide a municipality into districts in which certain property uses are prohibited, and they may also regulate the look and feel of the property in each district through a variety of regulations, including setbacks, lot coverage, location of accessory structures, and building and fence heights.
If you own property there is a good chance you will end up wanting to do something on your property that is prohibited by your local zoning code. If that happens, you can apply for a variance from the zoning code. Your variance application will be reviewed and decided by your local zoning board of appeals (ZBA).
The process of applying for a variance can be challenging. As a lawyer and the chairperson of my local ZBA, here are ten tips you can use to successfully navigate your ZBA:
- Talk with your planning office: Most municipalities have a planning office. Find yours and start there. Share the plan for your property with them and they will help you determine whether you need a variance.
- Identify the kind of variance you need: Variances are divided into two general categories: use variances and area variances. You will need a use variance if you want to use your property in a way that is not permitted in your district. You will need an area variance if your use is permitted, but your project goes beyond the scale of what is permitted. Understanding the differences between the two is essential. Use variances are subject to a much higher legal standard and are much harder to get. The type of variance you need will dictate your strategy before the ZBA.
- Consider hiring a lawyer: A lawyer is not required, but use variances are rarely obtained without the help of a lawyer. Area variances are frequently granted to applicants who do not hire a lawyer, but even with area variances a lawyer may still be needed if the project is complex or located within a sensitive district that will be subject to heightened scrutiny, like a major commercial thoroughfare, sensitive steep slope, or lakeshore district.
- Know your ZBA: Every ZBA is different. Its members are volunteers appointed by your village or town board, or city council. You owe it to yourself to learn about them. All of their hearings are open to the public. Go and watch a few before your hearing so you can learn how they function.
- Know your neighborhood: Even though you may live or operate a business in the neighborhood, spend some time getting to know it from a zoning perspective. Ask your planning office whether similar variances have been granted in the neighborhood. If they have, review the approvals and the minutes from the hearings so you can understand the similarities or differences between the prior applications and yours.
- Talk to your neighbors: While the support or opposition of neighbors is not determinative, it is considered. Letters in support of your project, particularly from your nearest neighbors, can be very helpful and may push you over the edge if the ZBA sees it as a close call.
- Prepare for your hearing: Every variance application is decided after a public hearing. The ZBA will expect you to succinctly and accurately describe your project, and explain why you need a variance. Be prepared to answer questions. Never assume the hearing is a mere formality or that you are entitled to a variance. Know the law that applies to your specific variance.
- Don’t rush the ZBA: The members of your ZBA are dedicated to applying the law and doing what is right for your community. They may have questions or concerns you aren’t prepared to answer, but could with some additional time. Don’t be afraid to ask for an adjournment so you can get additional information. It is better to delay your project for a month than have your application denied.
- Show respect: It should go without saying, but show respect to the ZBA and others who may come to comment on your application. Dress appropriately (business casual), stand when you speak, and use appropriate titles when addressing the ZBA (Mr. Smith or Ms. Jones). A little respect goes a long way.
- Learn when to revise your project: It is much easier to revise a project before the ZBA denies your variance. If you get a denial, you’ll be facing a long wait before you can reapply. I’ve seen many applicants ask for variances that are well-beyond reasonable and then become upset when their application is denied. If it becomes obvious you have miscalculated and asked for too much, consider asking for more time so you can revise the project and scale back your variance request. Don’t let the perfect become the enemy of the good.
Terence Robinson is a Partner at Boylan Code LLP, a full service law firm with more than fifty legal professionals focused on serving you, the client. Offices are conveniently located in Canandaigua, Newark, and Rochester. This article is not legal advice.
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