What Is A Zoning Variance?
A Zoning Variance is an authorization granted under law by the Zoning Board of Appeals, waiving a requirement of the zoning code. In effect, a Variance is an "exception" to the zoning laws, which can only be granted when specific standards or criteria are met. There are two types of Variance Applications: Use Variances and Area Variances.
Use Variance
A Use Variance is a waiving of the limitations pertaining to the use of land or a structure to allow a use that is prohibited by the Zoning Ordinance.
Area Variance
An Area Variance allows the waiving of codes pertaining, but not limited to: physical requirements such as a dimension or setback; yard, space and bulk requirements; expansion, structural alterations, or enlargement of a non-conforming use; Specified Use Requirements; Requirements applying to all districts; or city-wide design standards.
Who Can Apply?
A Variance application may be submitted by a property owner, an agent for the owner (such as a contractor, attorney, architect or real estate agent), or a person with a contractual interest in the property such as a tenant or option holder. Change of Use applications require the signature of an owner.
How Do I Apply?
Applications are available in the City's Permit Office, Room 121B - City Hall, 30 Church Street. Applications must be submitted by appointment as indicated on the application form, and a public hearing is scheduled.
Who Approves Variances?
The Zoning Board of Appeals holds public hearings to grant or deny Variance requests. The Zoning Board is a seven (7) member board appointed by the Mayor and confirmed by City Council for two (2) year terms. The concurring vote of four members is necessary to approve a Variance. The Zoning Board is scheduled to meet once each month.
What Must The Applicant Prove?
Standards for approval of a Variance are established in the Zoning Code. The burden of proof in applying for a Variance lies entirely upon the applicant. In the case of Use Variances, the applicant must demonstrate that strict application of the Zoning Ordinance causes an unnecessary hardship and an inability to generate a reasonable return on investment. In the case of an Area Variance, the application must show that due to unique physical characteristics of the property, strict conformance to the Zoning Ordinance requirements is unfeasible or impractical. Other standards are also applied as shown in the application form.
What Happens At The Public Hearing?
Members of the Zoning Board are provided copies of the application in advance of the hearing. The applicant is allowed fifteen (15) minutes to present his/her case. Persons speaking either in favor of or in opposition are allowed three (3) minutes to address the Board, ten (10) minutes if the speaker is an authorized representative of an established neighborhood association. The applicant is allowed a five (5) minute rebuttal. After the regular hearing, the Zoning Board deliberates on and decides each application. Deliberations are also open to the public but the public cannot participate in them.
Is An Attorney Necessary?
No, but the applicant or a representative of his/her choice must attend the public hearing to present the application.
How Long Is a Variance Valid?
The rights to a Variance must be exercised within one year of the dates of the Decision by obtaining a Building Permit and/or Certificate of Occupancy. The approval of a Variance shall not authorize the commencement of any work, rather it merely authorizes the preparation, filing and processing of applications for any permits and approvals which may be required by the codes and ordinances of the City. Once enacted, Variances run with the land and do not otherwise expire.
Division of Zoning
City Hall - Room 125B
Rochester, NY 14614
Tel: (585)428-7043