Powers & Duties of the
Zoning Board of Appeals
Presented by:
Judith Breselor, AICP
Executive Director, NYPF
&
T.J. Kennedy
Assistant Planner, NYPF
600 Broadway - #1
Albany NY 12207
518-512-5270
www.nypf.org
What are the Powers
and Duties the ZBA?
• A quasi-judicial body
• Appellate jurisdiction
• Independent of the governing body
– (ie: Cairo Town Council)
What is a Variance?
• A variance provides an exception
to and relief from the strict
application of the zoning ordinance
• Should be granted infrequently
Types of Variances
• Area variance
- provides relief from dimensional
requirements: e.g. yard setbacks, road frontage,
lot coverage or height limits
• Use variance
- allows land to be used for a purpose not
allowed by the zoning regulations
Area Variances
Weigh the benefit to
the applicant against
the detriment to the
health, safety and
welfare of the
neighborhood or
community.
The ZBA must consider
whether:
1. The neighborhood
character would change,
2. Alternative solutions are
possible,
3. The variance is substantial,
4. There would be adverse
impacts, and
5. There is a self-created
difficulty
Adverse Impacts
“Whether the proposed variance will have any adverse
effect or impact on the physical or environmental
conditions in the neighborhood or district”
- Are drainage, wetlands, water quality, waste disposal,
scenic, historic or other similar concerns relevant?
- Could imposed conditions mitigate impacts?
Self-created Difficulty?
“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”
- Often, this means there is not enough land to meet
required setbacks
Standards for Review
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Statutory standards must be used
A variance is an appeal
Burden of proof for applicant is high
Minimum relief only
Conditions may be attached
Findings of fact needed
Imposing Conditions
• The ZBA has the authority to impose
reasonable conditions and restrictions for
both area and use variances
- To minimize adverse impacts
- Consistent with spirit of local zoning
Use Variances
In order to be granted a use variance, the applicant
must prove unnecessary hardship by
demonstrating that for each and every permitted
use in the district:
1. There would be no reasonable return
2. There are unique circumstances
3. The neighborhood character will not be altered, and
4. The hardship was not self-created
No Reasonable Return
“The applicant cannot realize a reasonable return,
provided that the lack of return is substantial as
demonstrated by competent financial evidence”
- for any permitted use
- for any use allowed under a current use variance
- for a current lawful nonconforming use
- The ZBA must consider property as a whole
- “Reasonable” rate of return determined by the ZBA
Unique Circumstances
“The alleged hardship relating to the property
in question is unique, and does not apply to a
substantial portion of the district or
neighborhood”
 Uniqueness must relate to the land—not the owner
Neighborhood Character
 “The requested use variance, if granted, will not alter
the essential character of the neighborhood”
 Is the use consistent with the pattern and scale of
development in the area?
 Would the use have a detrimental impact on the
neighborhood?
 “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”
 Would the imposition of conditions help?
 Do other factors outweigh?
Alternative Solutions?
“Whether the benefit sought by the applicant can
be achieved by some method, feasible for the
applicant to pursue, other than an area variance”
 Can the proposed building design, location or
orientation be reasonably altered?
Self-Created Hardship
“The alleged hardship has not been self-created”
The hardship is self-created if the request is for
a variance from restrictions that existed at the
time of purchase, even if landowner unaware.
The hardship is self-created if money was spent
on an unauthorized project or if the owner
made a physical change to the property that
now precludes an authorized use.
Additional Requirements
 Statutes require compliance with Section 239-m
of the General Municipal Law: (requiring
notice to county, metropolitan or regional
planning agency)
(existing or
proposed)
 municipal boundary, County or State road;
 County or State park or recreation area;
 Boundary of any County or State-owned land on
which a public building or institution sits;
 Farm operation located in one of the two updated
County Agricultural Districts;
 The right-of-way of any stream or drainage channel
owned by the county.
What if the County Makes a Decision
the Board Feels is Incorrect?
 To Overturn the Recommendation of the County
You Will Need a Majority Plus One (1).
 (i.e. 5 Member Board you will need 4 in Favor of to
Disapprove the County’s Recommendation)
Decisions and Appeals
Board decisions should:
review and approve, approve with
modifications or disapprove
be understandable, specific, detailed and in
writing
Appeals of decisions are taken to State
Supreme Court in an Article 78 proceeding
or Declaratory Judgment proceeding.
What If You Want to Re-Hear an
Application Previously Denied
If an applicant wishes to have a denial
re-heard, the entire ZBA must be in
agreement and vote unanimously to
approve another hearing.
A motion must be made by the Board
and re-heard at the next ZBA meeting.
The project MUST be announced to the
Public once again to be re-heard.
Interpretations
 There are two types of appeals:
Interpretive
Variance
 In the interpretive appeal, the appealing party
claims that the enforcement officer’s decision
was wrong and the appellant is seeking a
reversal of that decision.
 The ZBA’s primary objectives are:
(1) to determine the original intent of the
governing board in enacting the regulation
in question; and
(2) arriving at the most practical solution.
Public Hearing at the Meeting
• All Matters that Come Before a Zoning Board of Appeals
must have a public meeting first.
• Each Agenda Item Should be Read Aloud by the ZBA
Chair and for each item a Separate Public Meeting must
be held before SEQR Determination.
• Listen to the Applicant and then Call the Public Meeting
to Order - ask if there is anyone in the audience who
wishes to speak for or against a project.
• Each speaker should state their name and Address, only
those who live within the Community should weigh in on
the project unless a neighboring community will be
negative impacted by the project.
• Close the Public Hearing and note the time that the
Hearing is closed.
The Public Hearing
• ZBA must conduct a public hearing within 62
days from the date the application is received.
• Notice of the public hearing must be published in
a newspaper of general circulation at least five (5)
days prior to the hearing.
• ZBA must make a decision within 62 days after
the close of the public hearing (time may be
extended by mutual consent of the board and
applicant)
Other Issues You Need to Know
Which board does what?
Quorum
Workshop Vs. Meeting
Hostile Public
Ethics/Conflicts
Smooth Meetings
Is There a Quorum?
 If there is a ZBA of 5 Members, a Quorum would consist
of half plus one, that is there must be three members
present to conduct business.
 When voting on a issue there still must be a quorum of the
entire body in order to pass a variance. That is if only 3
members are present of a 5 member board, all 3 members
must vote the same to approve a variance request.
 The Board should advise an Applicant if the full
membership of the board is not present and explain that all
members would be required to vote the same on an issue
and allow the Applicant to Reschedule if Desired.
Does Everyone Understand the Difference Between
the Workshop Meeting and the Public Hearing?
FOR BOTH PUBLIC MUST BE NOTIFIED IF…
 There will be a quorum of the body of the board
 Discussion at a Workshop Meeting includes gathering of
information to help the board make a better decision
 No Decision can be made on a proposal at the workshop
meeting, it is only a time to review a project and make sure
you have all of the information needed to make a decision
 NEVER tell an applicants that a project will be approved or
disapproved
 Do not participate in ex-parte communication (this isn’t time
to listen to neighbors or those impacted by the project)
Hostile Public
One Person Only Can Speak and Must State
their Name and Address
Do Not Allow Any One Person to Speak for
More than 5 Minutes Unless the Board Needs
More Information
Make Sure the Speaker is Addressing the
Board and Not Another Resident in the Room
Issue Must Only Address the Application
which is Before you.
Dignity and Respect for all Attending
Ethics/Conflicts of Interest
General Municipal Law, Article 18:
1. Prohibits a public officer (and immediate family)
from having any interest in a private contract with his
or her municipality in which he or she has a decisionmaking role.
2. Prohibits a public officer from soliciting, accepting
or receiving any gift valued at $75 or more.
3. Requires applications that need board’s approval to
disclose any interest in the application possessed by
any public officer, employee and extended family.
4. Requires municipalities to adopt local code of ethics
Approaches to Ethics
 Avoid any appearance of impropriety
 Conflicts of interest that are pecuniary & involve
family require recusal
 Local officials may still submit applications
 Alternates help in cases of recusal
 Don’t announce position on projects before record
is closed & all facts are in
 Avoid ex parte contacts, but if they occur, put in
the record
Smooth Meetings
Thorough, clear agendas
Well-written notification and materials
for the public
Clear meeting procedures
An opportunity for public input
An enforceable policy and the consistent
will and means to enforce it
SEQR
 SEQR (State Environmental Quality Review) is a
procedure that applies to all decisions of the
planning board and ZBA.
 Its premise is that, as stewards of the environment,
local boards must include environmental
considerations in their decision-making.
 Typically, the local board is the lead agency in
SEQR procedures.
 The SEQR process is required by SEQRA (the
State Environmental Quality Review Act), Article
8 of the State Environmental Conservation Law.
When does SEQR Apply?
SEQR procedures apply to all “actions” as
defined in Article 8 of State Environmental
Conservation Law.
Included: projects directly undertaken or
funded by a governmental unit; private
projects requiring a “lease, permit, license,
certificate or other entitlement for use or
permission” from a governmental unit.
Initial SEQR Review
• The first thing a board must do when it receives an
application for approval of a project is determine
whether or not it is subject to SEQR.
• Type II actions do not require further SEQR review.
• Type I or Unlisted actions require further SEQR
review.
• A prerequisite to making this determination is that
the application contains all submission materials
required by local regulations. If not, it should be
returned to the applicant with instructions to
complete it.
Exclusions
• Actions undertaken, funded or approved prior
to the effective date of SEQRA (1976);
• Large-scale utility projects subject to approval
by NYS Public Service Commission;
• Regional projects under the jurisdiction of the
Adirondack Park Agency.
Actions Under SEQR
• State SEQR regulations (19 NYCRR Part
617) list types of projects and categorize
them according to their probable effect on
the environment. Projects are divided into:
• “Type 1 Actions” which have the potential
for significant environmental impact.
• “Type 2 Actions” which will probably not
have a significant impact.
• “Unlisted Actions”
Exempt Actions
• In addition to “exclusions” under SEQR, certain
actions are “exempt.” These include:
• Civil or criminal enforcement procedures;
• Ministerial acts involving no exercise of
discretion; (see next slide)
• Maintenance or repair to an existing structure;
• Emergency actions necessary to preserve life,
health, property or natural resources;
• Actions of the State Legislature or courts.
Ministerial Acts
• Are those undertaken by a government
official which involves the application of a
clear set of rules.
• The correct application of those rules grants
the applicant an absolute right to approval
and no exercise of “discretion” is involved.
• Example: Issuance, by the zoning/code
enforcement officer, of a building or zoning
permit where the officer’s act alone allows
the action to proceed.
SEQRA Action Type:
Type I or Unlisted
 Type 1 Action: applicants are
required to complete a Full
Environmental Assessment
Form (EAF); model available
through NYS DEC.
 Unlisted Action: the board
may require either a Full or
Short-EAF.
 The board must determine
whether the project involves
other agencies at the Federal,
State, county or local level.
Type II
 Construction of farm buildings;
 Construction or expansion of less
than 4,000 sq. ft. of nonresidential
space involving neither a change
of zoning nor a use variance;
 Granting of individual setback
and lot-line variances;
 Granting any area variance for a
1-, 2- or 3-family residence;
 Adoption of a moratorium on land
development or construction;
 Interpreting an existing code, rule
or regulation
SEQRA
Process
Flow
Chart
Provided by
NYS DEC
Lead Agency Status
• If a project is either Type I or Unlisted
Action, a lead agency must be established.
• If no other agency is involved in permitting
or approving the project, the board
receiving the application is the lead agency.
• If other agencies are involved, a
“coordinated review” occurs, in which case
the various involved agencies must agree on
which will serve as lead agency.
Lead Agency Status (cont.)
• The lead agency makes a “determination of significance”
within 20 days of receipt of the application, EAF, or any
additional information required.
• A “determination of significance” means that the lead
agency must decide whether or not to require an
Environmental Impact Statement (EIS).
• If an EIS is required, the lead agency makes a “positive
declaration,” meaning that the project may have a
significant environmental impact.
• A “negative declaration” means that the project will not
have a significant effect on the environment.
Lead Agency Status (cont.)
• The lead agency makes a “determination of significance”
within 20 days of receipt of the application, EAF, or any
additional information required.
• A “determination of significance” means that the lead
agency must decide whether or not to require an
Environmental Impact Statement (EIS).
• If an EIS is required, the lead agency makes a “positive
declaration,” meaning that the project may have a
significant environmental impact.
• A “negative declaration” means that the project will not
have a significant effect on the environment.
Conditioned Negative Declaration
 A hybrid determination is only possible for
Unlisted Actions.
 The lead agency determines that there may be
significant environmental effects, but they can
be eliminated or mitigated by imposing
appropriate conditions.
 This allows the applicant to avoid the time and
expense of preparing an EIS, so long as they
agree in advance to abide by set of conditions.
Additional Criteria
DEC has adopted useful criteria for the lead agency making
a determination of significance. The agency must:
 Consider aspects of an “action” as set forth in Part 617;
 Review the EAF, the detailed guidelines for determining
significance contained in Part 617, and other supporting
information;
 Thoroughly analyze the relevant areas of environmental
concern;
 Set forth a determination of significance in written form,
containing a reasoned elaboration and providing
reference to any supporting documentation.
Other Reviews & Approvals:
Who Does What?
• Interpretations – ZBA
• Site Plan Approval – Planning Board
• Subdivision – Planning Board
• Local Laws – Only the Legislative Body
Other Resources
• NYPF publications: (www.nypf.org)
– “All You Ever Wanted to Know About Zoning”
– “The Short Course”
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County planning departments
Regional planning commissions
DOS Division of Local Government
Association of Towns of NYS
New York Conference of Mayors and
Municipal Officials (NYCOM)
The New York Planning Federation
• The New York Planning Federation (NYPF)
is a statewide, member-supported non-profit.
• It was founded in 1937 as a service
organization to municipal planning and
zoning officers.
• We offer technical assistance through phone
and/or onsite consultations, one-day
workshops, an annual three-day conference
and several publications.
THANK YOU!
New York Planning Federation
600 Broadway, Suite 1
Albany, New York 12207
Office: (518) 512-5270
Fax: (518) 512-5270
http://www.nypf.org