Zoning Board of Appeals Relief
The Zoning Board of Appeals can grant (or deny) two types of relief: interpretive and variance. If the appeal is for an interpretation, the ZBA’s decision will be based on the municipal zoning regulations. If the appeal is for a variance, the ZBA’s decision will be based on the standards of proof contained in the state statue: 267-b of the New York State Town Law. (Guidelines for Application to Town of Hyde Park Zoning Board of Appeals (PDF).)
Interpretative or variance relief can be sought after a decision by the Zoning Enforcement officer. The appealing party may believe that an exception (variance) to the zoning laws should be made for his or her property. The applicant or the applicant’s representative must file a Notice of Appeal with the ZBA within 60 days of the enforcement officer’s decision or action.
Appealing for Relief
When an applicant has already submitted an application for subdivision, site plan or special use permit approval which requires an area variance in connection with that approval, the applicant may simply file a Notice of Appeal directly to the ZBA, without a decision by the Zoning Enforcement Officer.
Any person, who could be "aggrieved" by the decision or action of the enforcement officer, has standing to take an appeal before the ZBA. This could include a neighboring landowner, if he or she believes the enforcement officer’s decision will negatively affect their property value. Also, any officer, board or commission of the municipality may appeal a decision of the enforcement officer, whether or not that officer, board or commission is aggrieved.
Variances fall into two categories:
A use variance is asking for permission to establish a use of the property not otherwise, permitted, in the zoning district. The applicant must prove " unnecessary hardship." State law requires the applicant to show all of the following:
- That the property is incapable of earning a reasonable return on the initial investment if used for any of the allowed uses in the district (actual "dollars and cents" proof must be submitted)
- That the property is being affected by unique, or at least highly uncommon circumstances
- That the variance, if granted, will not alter the essential character of the neighborhood
- That the hardship is not self-created
Note: If any one or more of the above factors is not proven, State law requires the ZBA deny the variance.
The Use Variance Application (PDF) is available online.
An area variance is permission to build in an otherwise restricted portion of the property (such as in the required front, side or rear yards, or above the required building height, or in excess of the lot coverage regulations). State law requires the applicant to show that the benefit the applicant stands to receive from the variance will outweigh any burden to the health, safety and welfare that may be suffered by the community. State law requires the ZBA to take the following factors into consideration in making its determination:
- Whether an undesirable change will be produced in the character of the neighborhood, or a detriment to nearby properties will be created by granting of the area variance
- Whether the benefit sought by the applicant can be achieved by some method which will be feasible for the applicant to pursue but would not require a variance
- Whether the requested area variance is substantial
- Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district
- Whether an alleged difficulty is self - created
Note: The ZBA need not find in favor of the applicant on every one of the above questions. Rather, the ZBA must merely take each one of the factors into account. The ZBA may also decide that a lesser variance than the one requested would be appropriate, or may decide that there are alternatives available to the applicant, which would not require a variance.
State law requires the ZBA, in Use and Area variance applications, to grant the minimum variance necessary to provide relief, while at the same time taking care to protect the character of the neighborhood and the health, safety and welfare of the community. The ZBA may impose reasonable conditions on granting any variances.
The Area Variance Application (PDF) is available online.
A request to the Zoning Board of Appeals from the applicant, or by an official or agency of the Town, to render an opinion of the proper reading of the municipality’s zoning regulations, is identified as an interpretation. If the ZBA has heard a case in the past, which involved an interpretation of the same provision, the ZBA’s decision will be consistent with its prior ruling. If the ZBA has never interpreted the particular provision, it will use its best judgment as to the municipal governing board’s original intent in enacting the provision. The ZBA will try to arrive at the best practical solution for future application by the enforcement officer. The Interpretation Application (PDF) is available online.