Variance

A variance, or zoning variance, is a zoning-board approval that lets a property owner deviate from a specific zoning requirement, such as a setback, height cap, or floor area limit, because strict compliance would impose a practical hardship tied to the physical condition of the parcel rather than the preferences of its owner.

How a Variance Works

A variance is granted by a local zoning board of appeals, not by a legislature, and it runs with the land once recorded. Two forms exist: a use variance, which permits a use the code prohibits in that district, and an area variance, which relaxes a dimensional rule like setback, height, or lot coverage.

The two forms answer to different legal tests. A use variance carries the stricter unnecessary hardship standard traced to Otto v. Steinhilber, 282 N.Y. 71 (1939), where the New York Court of Appeals held the applicant must show the land cannot yield a reasonable return under any permitted use, that the hardship is unique to the parcel, and that the variance will not alter the essential character of the neighborhood. The authority to grant variances at all traces to the Standard State Zoning Enabling Act, published by the U.S. Department of Commerce in 1926 and adopted in some form by most states.

An area variance is judged on the lower practical difficulties standard. Under New York Town Law Section 267-b(3), the board weighs five factors: the change to neighborhood character, whether the benefit can be achieved by another feasible method, whether the request is substantial, any adverse environmental impact, and whether the difficulty was self-created. The American Bar Association's 2026 Land Use Update notes the board balances the benefit to the applicant against the detriment to the community, and need not make a finding on every factor so long as the overall determination is rational.

The process is administrative. An owner files an application with the zoning board of appeals, the board sets a public hearing with notice to neighbors, and it votes on the record. Approval often carries conditions, and a denial can be appealed to a trial court, which reviews the decision for a rational basis rather than substituting its own judgment.

Why a Variance Matters

A variance is the difference between a site that can be built as underwritten and one that cannot. For a buyer, an unresolved dimensional conflict, a building that violates the rear setback or exceeds the height cap, is a latent cost that surfaces at permitting, after the purchase price is fixed and the closing is done.

Timelines and outcomes are uncertain, which is the real cost. A variance hearing commonly takes two to four months from application to vote, and a use variance clears a higher bar than an area variance, so approval is far from guaranteed. The operator-side rule is simple: price the entitlement risk, or inherit it. A parcel that needs a use variance to reach its intended use is not the same asset as one already zoned for that use, and it should not underwrite at the same basis.

Example

A setback variance example is the clearest way to see what the approval changes on the ground. Consider an infill parcel where the code requires a 25-foot front setback, but a viable building footprint needs the wall at 15 feet. The table below shows what a granted setback variance and a granted floor area variance each change for the site.

Working the floor area line: at 2.0 FAR the 20,000 square foot lot yields 40,000 square feet. A variance to 2.5 FAR yields 50,000 square feet, an added 10,000 square feet. At a triple net rent of 30 dollars per square foot, that increment supports 300,000 dollars of additional gross annual rent, before the board's conditions and construction cost are counted.

Variations and Edge Cases

A self-created hardship is the most common ground for denial. If the owner built the encroachment, subdivided the lot into the odd shape, or bought the parcel already knowing the zoning limit, boards and courts treat the difficulty as self-imposed and routinely refuse the variance, since the hardship traces to the applicant's own act rather than the land.

A variance also differs from a special use permit, which authorizes a use the code already contemplates subject to conditions, and from a rezoning, which changes the district's rules for everyone.

Variance vs Nonconforming Use

A variance is often confused with a nonconforming use. A variance is a forward-looking approval to build or operate in a way the current code forbids. A nonconforming use is a use or structure that was lawful when established and predates the current code, allowed to continue under grandfather rights but usually barred from expansion.

One is permission granted; the other is a right retained.

Frequently Asked Questions

Does a variance run with the land or with the owner?

A variance runs with the land. Once granted and recorded, it stays with the parcel through a sale, so a new owner inherits both the approval and its conditions.

Is a use variance harder to get than an area variance?

Yes. A use variance requires the stricter unnecessary hardship showing that the land cannot yield a reasonable return under any permitted use, while an area variance is judged on the lower practical difficulties balancing test.

Can a variance be denied for economic reasons alone?

Yes. A wish for more profit is not a hardship. Boards deny variances grounded in the owner's finances or a self-created condition, because the test turns on the physical condition of the land, not the owner.

Related Terms

• Zoning

• Entitlements

• Floor Area Ratio

• Certificate of Occupancy

• Highest and Best Use