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What is one to do when the Building Inspector denies you a building permit or says you are violating the zoning law? You can modify your plans of course, but what if you can’t afford to do so or are physically unable to modify them? What if you think the building inspector made a mistake?

Any person aggrieved by a zoning decision of the building inspector or code enforcement official is not without recourse. You may appeal the decision to the Zoning Board of Appeals. The most common appeals are with respect to a property owner’s application for a permit. There are two basic types of appeals to the Zoning Board of Appeals: Appeals for an interpretation of the zoning code’s provisions and appeals for a variance or permission to vary the requirements of the zoning law. In making any appeal, the burden of proof lies with the applicant, and if the applicant does not prove his or her case, the appeal will be denied. You may be represented by an attorney if you so desire. The time to submit an appeal is short – not more than 62 days from the date of the building inspector’s decision or action.

INTERPRETATIONS

An interpretation is a request to have the Zoning Board make a determination as to the meaning of a particular provision of the zoning code with respect to your particular set of facts and circumstances. Zoning laws use many terms that are specifically defined within the law itself. They also use language that is merely subject to standard dictionary definitions. Ambiguities in the meaning of terms can and often do arise and in zoning laws, such ambiguities are supposed to be interpreted in favor of the property owner’s free use of his or her property. Sometimes the building inspector may interpret a code provision in a way that prevents you from doing something but if “looked at another way”, the term could be interpreted to permit what you want to do.

If you are aggrieved because you believe the building inspector has misinterpreted the zoning code or its application to your situation, you may appeal that determination to the Zoning Board of Appeals. You must clearly identify the code provision for which you request an interpretation and must completely, clearly and accurately set forth your unique facts and circumstances to which the code provisions apply.  If you have definitions or facts which favor your position it is critical that you clearly and completely explain those in your appeal. The Zoning Board cannot render an interpretation if you fail to properly state the facts of the matter.

VARIANCES

Variances are a form of extraordinary relief which allows a person to do something that is expressly not allowed by the zoning code. For example, the zoning code says the that no construction can be within 25 feet of the front lot line and that is the only place you can put your front steps. You need a variance to change the set-back rules to permit you to install the front step.

A variance will not be granted unless you prove all the elements necessary to do so. The two basic types of variances are use variances and area variances. A use variance would allow you to conduct a particular type of activity in a zone where that activity is not normally permitted. For example, you want to have a home office in a zone where home offices are not permitted. An area variance will afford relief from the dimensional or “bulk” requirements, such as lot sizes, set-backs, height restrictions, etc.  The basic elements which must be proved have been established by State law and Court decisions and are summarized below.

No use variance can be granted without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship. In order to prove such unnecessary hardship the applicant must demonstrate to the board of appeals that for each and every permitted use under the zoning regulations for the particular district where the property is located,
(1) the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;
(2) that the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood; (3) that the requested use variance, if granted, will not alter the essential character of the neighborhood; and
(4) that the alleged hardship has not been self-created. The applicant must prove all four of these criteria and failure to prove any one of them will result in a denial. Importantly, competent dollars and cents proof is required.

No area variances can be granted unless the ZBA takes into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant. In making such determination the board shall consider: (1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance;
(2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;
(3) whether the requested area variance is substantial;
(4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and
(5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance. Unlike a use variance which requires all four of the criteria to be proven, in the case of an area variance, not each and every one of these factors need be demonstrated and no one factor is controlling.

All applications must be accompanied by a plot plan, which in NY must be stamped and signed by a registered professional engineer or architect, denoting the property lines, all existing and proposed buildings and structures in relation to the property lines, paved or parking surfaces and appropriate measurements.

SPIRIT OF THE ZONING LAW

The applicant must show that the granting of the variance will be within the general spirit of the zoning law. The variance requested must be the minimum necessary to grant the relief while conserving the essential character of the neighborhood and protecting the value of other properties in the zone. No variance will be granted where to do so will make a significant impact on the public health, safety and welfare purposes for which the zoning code was implemented.

CONCLUSION

The above is intended to be a general outline concerning appeals to the Zoning Board of Appeals. It is only a rough outline and is no substitute for the advice of an attorney or engineer to assist you.

Remember, the applicant must prove his or her case or the appeal will be denied.

Howard Protter is a partner on the Municipal Law Team. He can be reached by phone at 845-778-2121 toll free or 845-778-2121 and by email.

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