by Andrew Getty

Caller: I just got a notice in the mail that my neighbor has applied for an Area Variance to make his house bigger.

Code Office: Okay… How can the Code Office help you?

Caller: Our lot has been in the family over sixty years. About ten years ago I was denied a building permit to build a small summer camp. How come they can have a permit, but we can’t?

Code Office: There had to be a reason for the denial. Do you know why?

Caller: They said the lot was not big enough. Does not seem fair.

Code Office: How big is your lot?

Caller: 40 feet by 80 feet.

Code Office: Sir, that is less than one-thirteenth (1/13th) of an acre. It may be impossible to put a septic system and a well on the property, or meet any property line setback requirements for structures.

Caller: But my lot is grandfathered! We have had our lot long before the Town got all this Zoning stuff.

Code Office: Actually, you’re correct. Your lot is lawfully pre-existing and non-conforming; grandfathered.

Caller: Then why can’t I get a building permit?

Code Office: The Zoning Ordinance acknowledges old lots, pre-dating local laws and waives all minimum requirements for width, length and area.

Caller: Exactly!! So why can’t I have a building permit!!??

Code Office: That is because the minimum side, rear or front property line setbacks must still be met. The minimum required septic system [leach field] and well separations always apply. And your lot being only 40 feet by 80 feet, it is impossible to meet those standards.

Caller: My neighbor’s lot is about the same as mine. How can he have a house, let alone make it bigger now?

Code Office: Great question, however we need to know more about the history. How old is his house?

Caller: At least as old as I am, well over 70 years old.

Code Office: Yes, their lot is also grandfathered, just like yours. But they also have a lawfully pre-existing, non-conforming structure (which does not meet setbacks), and which was built before local laws. They have the right to maintain, fix, expand or even replace their structure subject to the approval of the Town Zoning Board of Appeals, or maybe just the Planning Board as a “Conditional Use Permit.” The difference between the two boards depends on what is being proposed.

Caller: So why can’t I get a “Conditional Use Permit” or a “Variance?”

Code Office: The difference goes back to having a grandfathered structure as compared to just a vacant grandfathered lot.

On a vacant lot of this size, 40 by 80 feet, it is impossible to meet the setback requirements.

The Town Planning Board can only deal with already existing, grandfathered structures that someone wants to expand or replace. And even then, the Planning Board CANNOT approve it if the expansion or replacement gets even closer to the property lines; thus a “Variance from the Board of Appeals.”

Caller: This does not seem fair. We pay taxes just like anyone else.

Code Office: You do have the right to submit a different request for an Area Variance to the Zoning Board of Appeals from what was already denied.

However, please understand, there is no guarantee.

Also remember, the septic and well issue is not a zoning matter, but rather a New York State regulation, not local zoning rules.

Caller: What’s the Zoning Board of Appeals job for then?

Code Office: The Zoning Board of Appeals will consider applications for something that is otherwise prohibited. But they do not just hand out variances.

You need to prove to them that the benefit to you, if approved, outweighs the detriment to the health, safety and welfare of the neighborhood or community. And again, they do not have any authority over septic and well.

Caller: Still doesn’t seem right. Not only does my neighbor have a house, now he wants to make it bigger. And you won’t let me do anything.

Code Office: These rules have been around for 50 years. We suggest you learn how variances work, then consider an application to the Zoning Board of Appeals for a very small house. Consider an alternative /enhanced septic, and ask for a waiver from the NYS Health Department.

Remember, there are no guarantees…