A use variance is permission granted to a parcel of land so that it may be used for something not allowed by the zoning code. They differ from Special Use permits, which are uses described in the zoning code and are so complex that they are issued by the Planning Board.
New York law has stricter standards for use variances than for area variances.
For example, an applicant may want to build a gas station in an area which is zoned for residential use and would then need to apply for a use variance.
In order to be granted a Use Variance, the applicant must prove “unnecessary hardship” by demonstrating that four conditions all exist.
- For each and every permitted use in that zone, the applicant is substantially unable to make a reasonable return from the property, as shown by competent financial evidence;
- The hardship is somewhat unique, or at least not shared by a majority of parcels in the same zoning district;
- The hardship has not been self created; and
- The variance will not alter the essential character of the neighborhood.
A critical difference here is that for a Use Variance the applicant must pass all four of these tests. The test does not weigh any benefits against the detriments, as the analysis for an area variance does.
This is information meant to be a useful starting point for applicants and the public. Consult with an attorney for advice about your particular concern or situation.