One of the findings for a variance is that a “unique physical condition” is inherent in the property. What would qualify?
Typical examples include small, shallow or irregular lots, sub-surface soil conditions, including high water table, rock or contamination, or the inability to reuse obsolete buildings.
The unique condition that leads to a hardship cannot be a pervasive condition in the general area; however, it need not necessarily be the only site that has the unique condition.
In making its determination, the Board is guided by the five findings of Section 72-21, substantial evidence provided on the record by the applicant, criteria determined by past board grants, NYC and NYS case law interpreting the findings, and the Board’s expertise and knowledge
Why should a property owner be entitled to a reasonable economic return?
The Board – and similar variance boards throughout the country – was created based on the premise that property owners are entitled to a reasonable economic return. Relief is granted when it is determined that zoning is considered unduly burdensome – i.e., preventing a property owner from realizing a reasonable economic return.
In order to obtain a variance, applicants are required to provide the Board with a quantitative feasibility study that demonstrates that an as-of-right development could not realize a reasonable economic return without a variance.
A property owner should conduct due diligence when purchasing a piece of property. If they know before they purchase the property that it will be difficult to develop under current zoning, then they shouldn't have bought it. Isn't this a self-created hardship?
Section 72-21(d) specifically states that the purchase of a zoning lot shall not itself constitute a self-created hardship.
Why isn't the applicant's purchase price for the property included as part of the financial analysis for a variance?
By basing the financial analysis on the recent sales of comparable property (fair maket value) in the vicinity of a subject site, the Board is able to objectively review whether a variance should be granted.
If a site has just been rezoned, shouldn't the owner be prevented from seeking a variance?
Even if a particular site has recently been rezoned, its uniqueness may still exist, and a variance may still be warranted. For example, an irregularly-shaped, shallow lot that was difficult to develop under a manufacturing zoning designation may still be difficult to develop under a residential zoning designation.
How does the Board make the determination on whether a proposal meets the finding that it will not alter the essential character of the neighborhood ("c" finding)?
The Board generally requires that applicants provide supporting information to document the potential impact of the proposal, including maps that document surrounding land use, floor area and building heights. Photos of the existing site are also required. In addition, the Board conducts site visits during the course of the public hearing to assess firsthand the potential impacts of the proposal.
How does the Board determine that the proposal is the minimum necessary to provide relief ("e" finding)?
The Board generally requires that applicants provide an analysis of the as-of-right condition to compare it to the proposed variance. The Board can also require a lesser variance scenario. Often, during the course of the public review, a proposal is modified in order to meet the minimum variance finding.
BZY and Common Law Cases
What authority allows a developer able to vest a project under a former zoning designation?
Section 11-331 of the Zoning Resolution specifically allows for renewal of a permit by the Board if excavation on the site is complete and substantial progress made on the foundations. The common law doctrine also allows property owners to vest if economic loss would result due to significant expenditure or irrevocable financial commitment, even if substantial progress is made on the foundations.
If a developer is able to vest under a former zoning designation, shouldn't they still be required to modify their project so that it is at least more consistent with newly adopted-zoning - especially if a community has worked hard to ensure the adoption of the zoning?
If a property owner/developer satisfies the vesting requirements of either Section 11-331 or the common law doctrine, they are legally entitled to complete their project under the former zoning. In addition, Section 11-331 or common law does not include a finding relating to impact on neighborhood character.
Is work without proper permits attributed toward a case for vesting? Shouldn't a property owner be denied the opportunity to vest under Section 11-331 if the project is rushed to "beat the clock" of a pending rezoning?
Provided the work completed prior to the enactment of the rezoning was completed pursuant to valid permits and the property owner meets the findings of 11-331, a project will be allowed to vest. In order for work to be attributed toward a case for vesting, that work must have been completed under valid permits.
Process and Public Review
What is the role of community boards and civic groups in the review of BSA applications?
Community Boards and civic groups can be extremely helpful to the Board when testimony and comments speak directly to the findings, including issues or information on neighborhood character and impact, real estate prices, unique conditions, and other development projects in the area. The Board often asks for more information, modifications and/or other assurances in response to community concerns. However, there may be times when even the most supported projects are poorly prosecuted at the Board, or do not meet the findings of a variance, or likewise, that some projects have met the thresholds of the law, although there may be some opposition in the neighborhood. The Board’s compass is always the law under which we are authorized to make decisions. The Board is subject to legal challenges, and therefore it is imperative that the Board’s decisions are defensible.
What is the public notification requirement of applications to the Board?
For applications that will be heard on the BZ and SOC calendars (with the exception of applications for the extension of time to complete construction), the Board requires that all applicants provide copies of their applications to the local community board, councilmember, borough president, and the Department of City Planning. These entities are also required to be notified by the applicant of public hearings at least 20 days in advance of the hearing date. Additionally, for applications on the BZ calendar, hearing notices must be sent to property owners within a 400’ radius of the application’s address (the radius is reduced to 200’ for applications that involve one- to three-family homes and special permit applications for lots of less than 40,000 square feet).