Recently, the Town of Webb Zoning Board of Appeals received an application for a Use Variance.
As this article is written before the public hearing—and will be printed after the hearing—this is not about the details of the actual application, but rather about the process.
There are two basic kinds of variances: “area” and “use.”
An area variance usually deals with some kind of dimensional relief of the zoning ordinance.
To place a structure or addition closer to front, side or rear property lines as required in the zoning ordinance is the most common request.
A “use” variance is a request to establish a prohibited use, or activity, in a particular zoning district.
Usually this means some kind of commercial activity in a residentially zoned district.
However, the Town of Webb’s zoning ordinance breaks Commercial Business (CB) zoning districts into sub-districts, CB-1 through CB-6.
Therefore it could be possible to receive a request to allow a prohibited commercial activity in a CB-1 that would otherwise be potentially allowed in a CB-6 district.
It was obvious from the outpouring of letters regarding the recent application that most people do not understand the difference between a Use Variance and a change of zone…
Nor should they be expected to understand, unless they are familiar with NYS Muni-cipal Law or have immersed themselves with this stuff over the years.
The two concepts (change of zone vs. use variance) are very different, and are handled by different boards who have very different and specific powers unique to just that board.
All variance applications are handled by the Zoning Board of Appeals.
Thus the term “Board of Appeals.”
Their duty is to consider an application to allow something that is otherwise prohibited by the zoning ordinance.
This concept would be the same all over New York State.
If a local municipality has a Zoning Ordinance, they must, by NYS Law, have some kind of Appeals Board.
This provides a relief valve to the applicant without the need to sue in the State Supreme Court System, thus bogging down the court with potentially thousands of suits.
You could say that the Board of Appeals is kind-of like a court.
They must operate within certain parameters which are recognized by the higher court.
When a variance (use or area) is granted, the zoning was not changed.
The approval would be specific to the property involved, the request made, and any modifications or conditions the Board of Appeals imposed.
Although the effect may essentially be the same by allowing a prohibited use in a particular location, the underlying zoning district was not altered.
If the property was zoned residential and a commercial activity was approved, the property is still zoned residential.
The commercial activity can only be conducted in a manner approved by the Board of Appeals, which may be more restrictive than the zoning ordinance allows for actual commercially zoned properties.
So who can change the zone from residential to commercial, or visa-versa?
Only the legislative body can do that, your elected officials, the Town Board.
The zoning ordinance and all the zoning district maps that go along with the ordinance are all part of a comprehensive package of Local Laws.
Although typically the zoning ordinance is a big Local Law, it is just that, one of usually many local laws.
In the case of the recent application, it may have been possible to petition the Town Board for an actual change of zone.
However, that would have been met with a number of difficult legal obstacles to overcome, the idea of “spot zoning” being one.
Also, changing the zone may offer the opportunity to establish a whole host of other activities which may not be so appropriate.
The use variance keeps it specific to the application.
The process is not perfect. But through many years of litigation and experience, all around the state, the variance process was developed.
It is a way to not clog up the State Supreme Courts with thousands of cases.
Instead those issues are handled by local community representatives, who will always have a better idea of what is best for it.