New Standards in Variance Law

Malachy Glen Associates, Inc. v. Town of Chichester

As may you know, a substantial part of our practice includes the representation of property owners seeking land use permits and approvals. We often appear before Zoning Boards of Adjustment seeking a variance from the strict enforcement of the applicable zoning ordinance. Although the evidentiary requirements differ slightly when seeking a use variance (constructing a two family residence in a single family zone) as opposed to a dimensional variance (seeking to provide a ten foot setback where twenty is required), the property owner always has the burden of proof. In order to receive a variance, a property owner must prove: (1) granting the variance is not contrary tot he public interest; (2) special conditions exist such that enforcement of the ordinance will result in an unnecessary hardship; (3) the use for which the variance is sought is consistent with the spirit of the ordinance; (4) substantial justice will be done if the variance is granted; and, (5) granting the variance will not diminish the value of surrounding properties.

In Malachy, the Court providing guidance of what evidence will be sufficient to satisfy the subjective prongs of the variance tests. Specifically, a property owner may satisfy the “spirit of the ordinance” prong in two ways. One way is to prove that granting the variance will not alter the essential character of the neighborhood. Another way is to show that granting the variance will not threaten the public, health safety or welfare of the community. The “hardship” prong requirement that special conditions exist can be satisfied if the use proposed is allowed in the zone as a matter of right. For example, if you propose to build a single family home in a single family zone but need a variance due to the lack of frontage, you will be deemed to satisfy the “special conditions” requirement. The “substantial justice” has always been a concern due its subjective nature. The Court created an objective balancing test to provide guidance to practitioners. This prong can be satisfied if the applicant shows that on balance the harm to the applicant in not granting the variance is outweighed by the benefit to the community if the variance is denied.

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