Most zoning questions rise in the context of applications for area variances, use variances or special use permits. The applicant must address different criteria for each of these applications. The criteria for area and use variances are found in the Town Law. Generally, the criteria for special use permits will be found in the ordinances for the municipality where the property is located. A well prepared application should address all of the statutory criteria.

Area Variances

Requests for area variances are heard by the local Zoning Board of Appeals (ZBA). The ZBA must consider: whether the alleged difficulty is self-created; whether the request will have adverse physical or environmental effects; whether the request will create an undesirable change in neighborhood character or to nearby properties; and whether the benefit can be achieved by other means feasible to the applicant. It is important for the applicants to put all of their supporting documentation into the record at the hearing. The applicant does not have to satisfy all of the criteria. The ZBA is obligated to balance the benefit to the applicant with the detriment to the health, safety and welfare of the community. The ZBA should grant the minimum variance necessary and may impose reasonable conditions.

Use Variances

Use variances are difficult to obtain. Unlike an area variance application, the applicant must meet all the statuary criteria before the ZBA can grant a use variance. To obtain a use variance an applicant must demonstrate unnecessary hardship by showing the following: they cannot realize a reasonable return utilizing the property for all of the permitted uses, that the alleged hardship is unique and does not apply to a substantial portion of the neighborhood; that the requested variance will not alter the essential character of the neighborhood, and that the alleged hardship is not self-created. The ZBA should grant the minimum variance necessary and may impose reasonable conditions. In many cases it is easier to obtain a re-zoning than it is to obtain a use variance.

Land Use Questions

Land use questions generally arise in the context of subdivision or site applications. The requirements for subdivisions and site plans are governed by local ordinances. The bulk area requirements are enumerated under the specific zoning district(s) where the property is located. The criteria that the local Planning Board must consider are also enumerated in each municipalities’ ordinance. Typically the board must consider the general health, safety and welfare impacts on the neighborhood. If you have concerns about a subdivision or site plan application in your neighborhood, it is important that you attend the public hearings at the beginning stages of any proposed project and express your concerns. The Planning Board does not have the absolute power to deny an application because neighbors dislike it. The Planning Board must apply the criteria enumerated in the local code. Generally that involves balancing your concerns against the applicant’s right to develop his/her property.

Additional Information

If you are concerned about a pending application which is being considered by your local Planning Board or ZBA, make your thoughts known early on in the process and frame them in the context of the criteria which the Board must apply. If you are an applicant, make sure that you address the applicable criteria and attempt to address all of the questions raised by the Board. You should introduce all pertinent information into the record. Appellate Courts will search the record. You do not get a second chance to introduce new information. The Board’s actions are constrained by statutes or ordinances. Once a Board has made a decision you oppose there is a short statute of limitations for you to take action. If you need legal representation contact me early in the application process.