Zoning and land use
Area variance
An area variance asks for relief from bulk rules: floor area, height, setback, yards, parking. Here is how it differs from a use variance and what it takes.
What is an area variance and how is it different from a use variance?
Quick Answer
Getting relief from a rule
Who does this land on?
Owners of narrow, shallow, irregular or corner lots, and anyone adding to an existing building that already sits tight against a bulk rule.
What governs it?
- The variance findings in the Zoning Resolution, which the Board of Standards and Appeals applies to area relief as well as use relief
- The bulk regulations for the district: floor area ratio, height and setback, yards, lot coverage, open space and parking
- The New York City Charter provisions giving the Board its jurisdiction
- The narrow exception that relieves a not-for-profit applicant of the reasonable-return finding
- The distinction from the rest of New York State, where an area variance is decided on a statutory balancing test rather than these findings
How does the process run?
- Identify the exact bulk rule and the exact amount of relief needed, because the Board grants the minimum
- Redesign first: many area variances disappear once the plan is redrawn to the envelope the district allows
- Document the physical condition of the lot that makes compliance impracticable
- Prepare the feasibility showing and the neighborhood character analysis, on the same footing as a use variance
- File with the Board, present to the community board, and appear at the public hearing
- If granted, build to the approved plans exactly, because the relief is measured to the drawings
Where does it bite in a transaction?
- An addition to a townhouse crosses a rear yard line and the whole filing stops on a single objection
- A conversion adds floor area a merged zoning lot has already used elsewhere
- A parking waiver is assumed rather than obtained, and the certificate of occupancy cannot be issued
- A contract closes on the theory that the relief is routine, which no variance is
Is an area variance easier to get than a use variance?
In practice it is more often granted, because the relief asked for is smaller and the neighborhood impact is easier to address. It is not procedurally easier: in New York City it runs through the same board, the same findings and the same hearing calendar, which is a difference from suburban and upstate practice.
Can a redesign avoid the variance entirely?
Often, and that is the first question worth asking. Moving a stair, reducing a bulkhead, shifting a rear extension or reallocating floor area between levels can bring a plan inside the envelope. A design change is measured in weeks; a variance is measured in the Board calendar.
Does the Board of Standards and Appeals handle every zoning appeal?
The Board hears variances, certain special permits, and appeals from final determinations of the Department of Buildings, including determinations about non-conforming use and about whether a filing complies with the Zoning Resolution. Landmarks approvals and rezonings run through different bodies entirely.
What else should you read before you file or sign?
In the glossary
- SurveyA surveyor's drawing of the parcel, its improvements and any encroachments. Lenders on houses and townhouses generally require a current one or a s...
- Survey readingReview of an existing survey to confirm it still matches the property and the record. It determines the wording of the survey exception on the policy.
- Certificate of Occupancy (C of O)The Department of Buildings document that fixes a building's legal use and occupancy. Lenders and title companies read it to confirm the property c...
- Violation (cited against the premises)An agency record that a condition at a property does not comply with a code or rule. It attaches to the premises and follows the property through a...
Zoning and land use
- Use varianceA use variance asks the Board of Standards and Appeals to permit a use the district bars. It is the hardest relief in NYC zoning. Here is what it t...
- Special permitsA special permit is relief the Zoning Resolution already contemplates, granted on stated findings. Here is who grants which one and how the two pat...
- How a Board of Standards and Appeals application runsA Board of Standards and Appeals case runs on a public record: filing, community board, hearing, continued hearings, then a vote. Here is the seque...
- Floor area ratio and how much you can buildFloor area ratio multiplied by lot area sets the buildable floor area. Here is how it is calculated, what is excluded, and why the zoning lot is th...
- DOB objections on zoning groundsA plan examiner raises a zoning objection when the filing does not match the Zoning Resolution. Here are the four ways it is cleared and how long e...
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Legal Disclaimer: This page is general information about New York practice. It is not legal advice, it does not account for the terms of any particular contract, building or transaction, and reading it does not create an attorney-client relationship. This is attorney advertising. Prior results do not guarantee similar outcomes.