As of Right, Special Permits and Variances

A zoning application, in the view of difficult urban building that Michael Stern writes from, is made of findings the way a wall is made of brick, and the material only has to be gathered once a project crosses a line. On one side the drawings comply and the city has nothing to decide; on the other the owner must prove something to a board. The entry starts at the line, because it matters more than any single rule, then takes apart the two kinds of relief that lie beyond it and the two bodies that grant them.

The line, and why it matters more than the rule

Planetizen’s definition of by right development describes the easiest path to approval: a proposal that conforms to zoning and building codes qualifies for construction without discretionary approval, in what lawyers call a ministerial decision, and the permission it earns is the entitlement.⁶ In the city the term is as of right, and BKREA’s owner’s primer spells out the consequence: the applicant goes straight to the Department of Buildings, where plans are checked at the counter against the district’s floor area allowance, its height and setback limits and its yards, and the charter review, with its board, president, Commission and Council, is skipped entirely.⁵ The same primer notes that special purpose districts can move the line, since a project that complies everywhere else may need a permit, or a review of its design, once it falls inside one.⁵

The line matters more than the rule because it decides who holds the pen. The Housing Affordability Institute’s page on discretionary review lists the triggers, from housing type to density to any dimensional standard, and observes that once a project is diverted to a hearing the approving body can kill it, downsize it, reshape it beyond what the numbers require, or ask for concessions in exchange.⁸ Planetizen adds that in some places amendments and variances have become so routine that the practice has its own name, spot zoning, and that the predictability neighbors value in zoning depends on most building staying on the automatic side.⁶ A merged zoning lot stays on that side, which is why it is so widely used; see Zoning Lot Versus Tax Lot.

Figure

What a variance is made of

1. 01
   AUnique physical conditions of the lot, such as narrowness, shallowness, irregular shape or topography, that make strict compliance a practical difficulty.
2. 02
   BNo reasonable possibility that a complying building would bring a reasonable return, a finding waived for nonprofit applicants.
3. 03
   CThe relief will not alter the essential character of the neighborhood or impair the use of adjacent property.
4. 04
   DThe hardship was not created by the owner or a predecessor in title; buying a restricted lot is not itself self creation.
5. 05
   EThe variance is the minimum needed to afford relief, and the Board may grant less than was asked.

What a variance is made of

A variance is relief from the letter of the text where the text itself has produced a hardship. The Zoning Resolution’s chapter on interpretations and variances empowers the Board of Standards and Appeals, after notice and hearing, to vary a provision where practical difficulties or unnecessary hardship stand in the way of carrying out its strict letter, so that the spirit of the law is observed and substantial justice done, and then conditions every grant on five findings, each supported by evidence in the record.⁹ Vinculum Architecture’s account from practice stresses the precision the material demands: an application names the exact sections to be modified and the exact extent of relief, so a floor area variance binds the project to the approved square footage and nothing more, and the application itself is an appeal from a written disapproval by the Department of Buildings.²

The hardship and the minimum

Two of the findings carry most of the weight. Fontan Architecture’s guide to variance requirements describes the physical condition that must originate in the site rather than in the owner’s wishes, with narrow or shallow lots, irregular geometry, topography and subsurface conditions as examples, and illustrates it with a 21 foot wide lot where an eight foot side yard would have left a 13 foot house.³ The Lasser Law Group’s description of the process explains the second: a financial report compares the project with and without the waiver and must show the complying version unviable and the relieved version earning a reasonable but not excessive return, and because the Board grants only the minimum relief necessary, asking for eight floors when four would work costs months and usually fails.⁴ The same account adds the programmatic hardship of a school or house of worship that needs floor area to expand, which the Board may accept without an irregular lot.⁴

The lighter burden of a special permit

A special permit is a different material. A JD Supra analysis of the state’s court decisions draws the distinction: a variance allows an owner to act against the ordinance, while a special exception allows a use the ordinance already names as acceptable once the legislated conditions are satisfied, and the legislature’s naming of that use amounts to a finding that it is in harmony with the plan, so the applicant’s burden is lighter than a variance applicant’s showing of hardship.¹ The Department of City Planning’s overview places the permits: the Board handles smaller modifications with no charter review and no Council vote, while the Commission’s permits to modify use, bulk or parking follow a review of the project’s impact on the full clock; beneath both sit authorizations and certifications for cases that meet set criteria and need no hearing.¹⁰

Figure

Variance against special permit

	Variance	Special permit
What it allows	A use or bulk the text does not permit	A use or modification the text already contemplates
What must be shown	Hardship, through all five findings	Compliance with the conditions the text attaches
Burden on the applicant	Heavier	Lighter
Who grants it	The Board of Standards and Appeals	The Board for smaller cases, the City Planning Commission for larger ones
Public review	A Board hearing	A Board hearing, or the charter clock for Commission permits

Two boards and the questions between them

The Board of Standards and Appeals has more than one job. The Resolution gives it the power to hear appeals from and review interpretations of the text, to vary its application in specific cases of hardship, to grant the special permits the text assigns to it, and to make administrative determinations, all after public notice and hearing.⁹ Lasser describes its composition as five commissioners the mayor names, ideally one from each borough, mixing planning, architecture, engineering and financial expertise, and notes that its relief is targeted at a single lot.⁴ Below the Board, a Design 2147 primer on determinations explains the written questions an applicant can put to the Department of Buildings about the meaning of a zoning provision or a code section, each filed for one property, which settle ambiguity without any grant of relief; only the Board may vary the text of the Resolution.⁷ The Commission’s permits run on the charter clock, which has its own entry at ULURP, and the code side of the examiner’s desk is in Building Code Versus Zoning.

What every grant leaves behind

Whichever body grants it, relief leaves a record on the lot. The Resolution requires the Board’s decision to set out each finding in a grant and, in a denial, which findings were not met, and Vinculum notes that the relieved project is held to the exact dimensions approved.⁹ JD Supra’s reading of a special permit is the same: permission is given only on the terms the text attaches, so the terms outlast the vote.¹ That is the common material of every form of relief, and it is why the line between complying and asking is drawn so early in a project’s life: an owner who stays on the as of right side keeps the whole envelope to design with, and an owner who crosses it builds, afterward, inside the words of a decision.