Land Use Related Actions of the 1991 Legislative Session
revised from the State of New York
Department of State - Recodification Measures
Village of Pittsford - January, 1994

The following recodification measures that were enacted at the 1991 Session were the result of the ongoing efforts of the Legislative Commission on rural Resources to recodify the planning and zoning enabling statues. The Department of State and others have been actively involved with the Commission in the preparation of these measures. The new law will take effect July 1, 1992.

Zoning Boards of Appeals in Towns and Villages: Major statutory revision including new rules for the granting of variances, (Chapter 692, Laws of 1991).

The measure repeals Town law, Section 267 and Village Law, Section 7-712, which pertain to zoning boards of appeals, and in their stead enact a series of new sections dealing with the creation of boards of appeals, (new Town Law, section 267 and Village Law, section 7-712b), and judicial review (New Town Law, section 267c and Village Law, section 7-712c).

The most important change concerns variances. These new provisions set forth the well-settled rules that have been established by the courts during the past 50 years. The new statute requires an applicant for a USE VARIANCE to demonstrate to the Board of Appeals that the zoning has caused unnecessary hardship which is defined to require a showing:

1. the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent evidence, (revised 10/15/93) and,
2. that the hardship is unique, and does not apply to a substantial portion of the district or neighborhood, and
3. that the variance will not alter the essential character of the neighborhood, and
4. that the hardship is not self-created.

The rules governing the issuance of an AREA VARIANCE have not been as clearly established by the courts as those for use variances. While there is no "test" as such for the granting of area variances, the new law requires the board of appeals to balance two elements: the benefit to the applicant from the variance, and the detriment to health, safety and welfare of the community or neighborhood that would occur if the variance were to be granted. The provision sets forth five factors for the Board of Appeals to consider in balancing these interests:

1. 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 variance.
2. whether the benefit sought by the applicant can be achieved by some feasible method other than a variance.
3. whether the requested variance is substantial.
4. whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions of the neighborhood or district.
5. whether the alleged difficulty was self-created (that it was, will not necessarily preclude the granting of an area variance).