Use Variance or Area Variance? The Two New York Zoning Standards, and the 30-Day Clock That Follows

By Eugene Bondar, Esq. · Updated September 29, 2026

In the towns of Rockland and Westchester, variance applications are decided under a single section of state law, Town Law § 267-b, and the first task is identifying which of its two standards applies. New York recognizes two kinds of variances, decides them under two very different tests, and gives the losing side thirty days to go to court. This post sets out what the statute says, so that an owner, developer, or institution knows what it is actually asking a zoning board of appeals to find. Villages and cities have their own provisions in the Village Law and General City Law, with different section numbers.

Two variances, two tests

The definitions are in Town Law § 267(1): “‘Use variance’ shall mean the authorization by the zoning board of appeals for the use of land for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations” (§ 267(1)(a)), and “‘Area variance’ shall mean the authorization by the zoning board of appeals for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations” (§ 267(1)(b)). Setbacks, height limits, lot coverage, and parking counts are typical dimensional requirements. The distinction is the first question in any application, because Town Law § 267-b assigns each a separate standard, and evidence built for one test does not answer the other.

The use variance: unnecessary hardship on four elements

Under § 267-b(2)(b), “[n]o such use variance shall be granted by a board of appeals without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship,” and the statute defines exactly what that means: “In order to prove such unnecessary hardship the applicant shall demonstrate to the board of appeals that for each and every permitted use under the zoning regulations for the particular district where the property is located, (1) the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence; (2) that the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood; (3) that the requested use variance, if granted, will not alter the essential character of the neighborhood; and (4) that the alleged hardship has not been self-created.”

Each element is a separate requirement. The first calls for a financial showing, typically a dollars-and-cents analysis of the property under each permitted use, not a statement that the proposed use would be more profitable. The second asks whether the problem is the parcel or the zoning; a hardship shared by the whole district is an argument for rezoning, not a variance. The fourth requires the applicant to show “that the alleged hardship has not been self-created.” Even when hardship is proven, the board “shall grant the minimum variance that it shall deem necessary and adequate to address the unnecessary hardship proven by the applicant, and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.” § 267-b(2)(c).

The area variance: a balancing test

Area variances are decided under § 267-b(3)(b). “In making its determination, the zoning board of appeals shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant.” The statute then directs the board to consider five factors: “(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 area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.”

There is no hardship requirement and no financial-return showing. That makes the area variance the more attainable relief, and it is why the characterization question matters so much: an applicant who can frame the request as dimensional rather than as a change of use has a much easier path. The minimum-variance rule applies here too: the board “shall grant the minimum variance that it shall deem necessary and adequate and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.” § 267-b(3)(c).

What the board may impose

Under § 267-b(4), the board “shall, in the granting of both use variances and area variances, have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed use of the property. Such conditions shall be consistent with the spirit and intent of the zoning ordinance or local law, and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.” Applicants should expect conditions and should think about which ones they can live with before the hearing, because an offered condition can address the concerns that would otherwise support a denial.

Site plans and the shortcut to an area variance

Site plan review under Town Law § 274-a is a separate approval, usually by the planning board. A “site plan” is “a rendering, drawing, or sketch prepared to specifications and containing necessary elements, as set forth in the applicable zoning ordinance or local law, which shows the arrangement, layout and design of the proposed use of a single parcel of land as shown on said plan.” § 274-a(1). Section 274-a(3) contains a useful provision: “where a proposed site plan contains one or more features which do not comply with the zoning regulations, application may be made to the zoning board of appeals for an area variance pursuant to section two hundred sixty-seven-b of this article, without the necessity of a decision or determination of an administrative official charged with the enforcement of the zoning regulations.” The two approvals can run in parallel, and the sequence should be planned so that the variance the site plan needs is decided before the planning board is asked to approve the plan.

Section 274-a(8) also sets the planning board’s clock. “In the event a public hearing is required by ordinance or local law adopted by the town board, the authorized board shall conduct a public hearing within sixty-two days from the day an application is received on any matter referred to it under this section,” and “shall make a decision on the application within sixty-two days after such hearing, or after the day the application is received if no hearing has been held. The time within which the authorized board must render its decision may be extended by mutual consent of the applicant and such board. The decision of the authorized board shall be filed in the office of the town clerk within five business days after such decision is rendered, and a copy thereof mailed to the applicant.” Under § 274-a(10), “[t]he authorized board shall comply with the provisions of the state environmental quality review act under article eight of the environmental conservation law and its implementing regulations.” See the post on SEQRA.

Thirty days, from filing with the clerk

Both statutes provide for court review by an Article 78 proceeding, and both use the same short deadline. Under § 267-c(1), “[a]ny person or persons, jointly or severally aggrieved by any decision of the board of appeals or any officer, department, board or bureau of the town, may apply to the supreme court for review by a proceeding under article seventy-eight of the civil practice law and rules. Such proceeding shall be instituted within thirty days after the filing of a decision of the board in the office of the town clerk.” Section 274-a(11) provides the same period for site plan decisions: “Such proceedings shall be instituted within thirty days after the filing of a decision by such board in the office of the town clerk.” The trigger is the filing with the clerk, not the vote, the mailing of the decision, or the applicant’s receipt of it. These proceedings “shall have preference over all other civil actions and proceedings” (§ 267-c(3); see § 274-a(13)), and “[c]osts shall not be allowed against the board of appeals unless it shall appear to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from” (§ 267-c(2); see § 274-a(12)).

Thirty days is not much time to obtain the record, identify the error, and draft a petition. An applicant who lost, or a neighbor who objected, should have counsel reviewing the decision the week it is filed. The firm’s Article 78 practice page covers what the court will and will not review.

Building the record before the vote

Because an Article 78 court reviews the record the board made, the application and hearing are where the case is won. For a use variance, that means the financial evidence on every permitted use is in the record, not promised. For an area variance, it means addressing each of the five factors on the record, with alternatives considered and rejected for stated reasons. For either, it means responding to neighbor objections in writing, so that the board’s findings, and any later court, have something to rely on.

This firm represents applicants and objectors before zoning boards of appeals and planning boards in Rockland and Westchester Counties, and brings and defends Article 78 proceedings arising from their decisions. Eugene Bondar served as counsel to Rockland County’s Planning Department and Planning Board as Principal Assistant County Attorney. The initial consultation is free.

Related services: Municipal Law, Land Use & Zoning · Article 78 Proceedings · Rockland County

Attorney Advertising. This post is for general informational purposes only and does not constitute legal advice. Citations are to the New York Town Law; villages and cities are governed by parallel provisions with different section numbers, and local zoning codes add their own requirements. Consult an attorney about your specific property and application.

Frequently asked questions

What must I prove to get a use variance in a New York town?

Unnecessary hardship. Under Town Law § 267-b(2)(b), "[n]o such use variance shall be granted by a board of appeals without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship. In order to prove such unnecessary hardship the applicant shall demonstrate to the board of appeals that for each and every permitted use under the zoning regulations for the particular district where the property is located, (1) the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence; (2) that the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood; (3) that the requested use variance, if granted, will not alter the essential character of the neighborhood; and (4) that the alleged hardship has not been self-created."

How is an area variance decided?

By a balancing test. Under Town Law § 267-b(3)(b), "the zoning board of appeals shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant. In making such determination the board shall also consider: (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 area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance."

Can the zoning board attach conditions?

Yes. Under Town Law § 267-b(4), the board "shall, in the granting of both use variances and area variances, have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed use of the property. Such conditions shall be consistent with the spirit and intent of the zoning ordinance or local law, and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community." For either kind of variance the board "shall grant the minimum variance that it shall deem necessary and adequate" (Town Law § 267-b(2)(c), (3)(c)).

How long do I have to challenge a zoning board of appeals decision?

Thirty days. Under Town Law § 267-c(1), an Article 78 proceeding by an aggrieved person "shall be instituted within thirty days after the filing of a decision of the board in the office of the town clerk." Site plan decisions carry the same period: such proceedings "shall be instituted within thirty days after the filing of a decision by such board in the office of the town clerk" (Town Law § 274-a(11)).