Zoning and land use
Use variance
A 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 takes.
What is a use variance and what does the BSA require to grant one?
Quick Answer
Getting relief from a rule
Who does this land on?
Owners of irregular, landlocked or otherwise burdened lots where nothing the district permits can be built or operated economically. It is a last resort, not a planning tool.
What governs it?
- The New York City Charter, which gives the Board of Standards and Appeals jurisdiction over variances
- The variance findings in the Zoning Resolution, which the Board applies to the record the applicant builds
- The requirement that the hardship arise from the physical conditions of the lot, not from the price paid or the owner’s plans
- The community board referral and public hearing process the Board runs before it votes
- Environmental review, which attaches to the Board’s discretionary action
How does the process run?
- Test the as-of-right options first, because the Board will ask why each permitted use fails
- Document the physical uniqueness: shape, size, topography, subsurface conditions, or a condition peculiar to that lot
- Prepare a financial feasibility study showing no permitted use yields a reasonable return, which is the finding that fails most applications
- Show the proposed use will not alter the essential character of the neighborhood, usually with a land-use study of the surrounding blocks
- Show the hardship was not created by the applicant, including by a prior subdivision or a sale of development rights
- Present to the community board, then to the Board of Standards and Appeals at a public hearing, and respond to the Board’s questions on the record
- If granted, accept the conditions the Board imposes and calendar the deadlines in the resolution
Where does it bite in a transaction?
- A buyer signs a contract with a short contingency and discovers the plan needs a variance rather than a permit
- A financial feasibility study assumes an acquisition price that itself created the hardship
- A grant lapses because the owner missed the deadline to obtain a permit or complete construction
- A lender treats a pending variance as a condition rather than an approval, and the loan waits on the Board
How long does a use variance take?
Longer than most applicants plan for. The preparation is the long part, because the financial study and the land-use study have to be built before anything is filed, and the hearing calendar adds months after that. A closing schedule should never assume a variance, which is what contract contingencies are for.
Can you buy the property first and apply later?
You can, and many applicants do, but paying a price that only works with the variance is how a hardship becomes self-created. The safer structure is a contract with a zoning contingency and a defined outside date, so the buyer is not the owner of an unbuildable lot if the Board says no.
What conditions does the Board attach to a grant?
Commonly a term of years, a requirement to obtain a permit and complete construction by set dates, limits on hours or intensity of the use, and a requirement that the approved plans be followed exactly. Those conditions are enforceable, and departing from them is written up as a violation of discretionary zoning conditions.
Is a variance recorded against the property?
The Board’s resolution is a public record and the grant runs with the land, but the practical step in a transaction is to obtain the resolution, the approved plans and proof that every condition has been satisfied. A grant nobody can locate is a grant a plan examiner will not honor.
What else should you read before you file or sign?
In the glossary
- 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...
- OATH Hearings DivisionThe City tribunal, OATH (formerly ECB), that adjudicates summonses from most New York City enforcement agencies. Unpaid or defaulted summonses beco...
- 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...
Zoning and land use
- Area varianceAn 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 ...
- 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...
- 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...
- Environmental review of a land use applicationDiscretionary approvals trigger environmental review in New York City. As-of-right filings do not. Here is what the assessment covers and where it ...
The violation code
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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.