In New York City property owners and developers seeking to use land in a manner inconsistent with existing zoning regulations must navigate two fundamentally different legal pathways for approval: a rezoning and a zoning variance. While both actions have the potential to allow for a development that currently might otherwise be prohibited, they differ significantly in scope, legal basis, application process, and governing body. Understanding the distinction is crucial, as choosing the wrong path can lead to substantial delays, increased costs, or outright denial of a project.
A zoning variance and a rezoning are both discretionary actions in NYC, but they differ in their fundamental nature. A zoning variance is an exception to one or more specific zoning regulations governing a particular development, whereas a rezoning is the changing of the applicable zoning regulations impacting a given lot or area by altering the property’s zoning district.
I am Jorge Fontan, an architect in New York and owner of Vinculum Architecture, a Manhattan-based architecture firm. At Vinculum we work on a variety of project types, including applications for Rezonings and Variances in New York. In this article, I will explain differences between Rezonings and Variances while reviewing some of the key issues that help us determine which is the best path for a specific project.
Discretionary Actions
In New York City, a “discretionary action” refers to a proposed development that does not strictly adhere to the established rules of the NYC Zoning Resolution. Unlike standard projects, these require an appointed or elected public body to exercise judgment and weigh the project’s merits before granting approval.
This process stands in sharp contrast to an “as-of-right“ development. An as-of-right project fully complies with all applicable zoning codes (such as height, setback, and density limits) and receives routine, administrative approval via building permits issued by the Department of Buildings (DOB). The approval for an as-of-right project is generally predictable.
If a developer proposes a project that deviates from the established zoning regulations, some form of discretionary action is needed to proceed legally. Common examples of discretionary actions include Rezonings and Zoning Variances.
A crucial aspect of discretionary actions is that their approval is not guaranteed. These applications are inherently subjective and often involve a rigorous public review process, such as the Uniform Land Use Review Procedure (ULURP). Various governing bodies, including the City Planning Commission (CPC), the Board of Standards and Appeals (BSA), Borough Presidents, and the City Council, hold the authority to approve, modify, or deny these proposals based on specific criteria and community input. The outcome is determined entirely at the discretion of these governing bodies.
Zoning Variance
In New York City a zoning variance is a project and site-specific, discretionary approval that allows a property owner to deviate from one or more specified zoning regulations prescribed by the NYC Zoning Resolution. A variance is required when strict adherence to the rules creates an undue hardship for a specific property development.
The power to grant zoning variances rests solely with the Board of Standards and Appeals (BSA). The BSA reviews applications after the DOB has issued a formal Objection and placed the application in Disapproved Status.
The Variance is for specific relief from one or more sections of the Zoning Resolution. The specific zoning sections and the extent of the variance are specifically illustrated in the application and the Variance if issued clearly expresses the extent of the approved variance.
To successfully obtain a variance, the applicant must provide substantial evidence proving they satisfy all five findings outlined in the Zoning Resolution:
- Unique physical condition: The property must possess unique physical characteristics (e.g., irregular shape, shallow depth, or unusual topography) that create a practical difficulty or unnecessary hardship not generally shared by other properties in the neighborhood.
- No reasonable return: Due to these unique conditions, there must be no reasonable possibility of achieving a reasonable economic return through an as-of-right development. This finding is waived for certain types of projects.
- Will not alter neighborhood character: The variance, if granted, must not alter the essential character of the neighborhood or district or be detrimental to public welfare.
- Hardship is not self-created: The practical difficulty or hardship cannot have been created by the current owner for example creating an irregularly shaped lot through a voluntary subdivision.
- Minimum variance necessary: The relief granted must be the absolute minimum necessary to afford the owner relief and overcome the hardship.
In New York City a Variance involves a Community Board review and the Board of Standards and Appeals. The entire application and public review process is lengthy, typically taking up to a year or more, and is entirely discretionary. There are no guarantees of approval; the BSA uses its judgment to decide each case individually.
If you would like to learn more about Variances we have another post you can read What is a Zoning Variance?
Rezonings
In New York City a Rezoning is a formal, legislative process that changes the established zoning district designation(s) on the official NYC zoning maps. This action permanently alters the land use and bulk regulations (such as building height, size, and permitted uses like residential or commercial) for a specific property or entire area. Rezonings are powerful tools used by both the Department of City Planning (DCP) to implement city-wide policy goals (e.g., creating affordable housing zones) and by private developers seeking more favorable development rules for their lots.
When rezoning a property you change which regulations apply to you by changing the applicable zoning district. You would then follow the zoning regulations of the new zoning district in order to complete the project.
Every rezoning must undergo the Uniform Land Use Review Procedure (ULURP), a mandatory, public review process involving multiple city agencies and elected officials. This rigorous, often lengthy, process (typically lasting 1.5 to 2 years) when including ULURP and all the Pre Application and Certification work before even beginning ULURP. The sequence of review is as follows:
- Community Board: The local Community Board holds public hearings and issues a recommendation within 60 days.
- Borough President: The Borough President reviews and provides recommendations.
- City Planning Commission (CPC): The CPC holds public hearings and votes. A denial here ends the process.
- City Council: If approved by the CPC, the City Council holds final hearings and votes, with significant weight given to the local Council Member’s input.
- Mayor & Affordable Housing Appeals Board: The Mayor, Speaker of the City Council, and applicable Borough President can vote to approve an appeal to a denial of certain Rezoning Projects.
Because rezonings are discretionary actions approved by public bodies, they completely subjective. There is no guarantee of approval, and the application must include extensive environmental impact analyses and building design proposals to demonstrate how the change does not negatively impact the public welfare and the neighborhood.
If you want to learn more about rezonings we have another post you can read on the Rezoning Process in NYC.
Rezoning vs Zoning Variance
As an architect working on rezonings and zoning variances I spend a great deal of time reviewing projects with clients and discussing which option suites them best. The right strategy and game plan is critical in the beginning of the project to move efficiently through the process and have the greatest chance of success.
Thank You for Reading Our Article on The Differences Between Rezonings and Zoning Variances in NYC
I hope this was helpful. If you would like to speak with an architect about a potential project, please get in touch with us directly at Vinculum Architecture.
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This post was written by Jorge Fontan AIA a Registered Architect and owner of New York City based architecture firm Vinculum Architecture. Jorge Fontan has earned 3 degrees in the study of architecture including two degrees from the City University of New York and a Masters Degree in Advanced Architectural Design from Columbia University. Jorge has a background in construction and has been practicing architecture for 20 years where he has designed renovations and new developments of various building types.
