New York Real Estate Salesperson ExaminationLand Use Controls and RegulationsEasy
A homeowner discovers that a new fence they installed encroaches by 6 inches onto their neighbor's property, violating the local setback requirements. The homeowner wishes to keep the fence in its current location. Which of the following would be the most appropriate course of action for the homeowner to pursue with the local zoning board?
- AApply for a Use Variance
- BRequest an Area Variance
- CSeek a Conditional Use Permit
- DPetition for a Zoning Amendment
Show answer & explanationAnswer & explanation
Correct answer: B. Request an Area Variance
An area variance is the correct mechanism for relief when a property owner seeks to deviate from dimensional requirements, such as setbacks, lot coverage, or height limits, without changing the fundamental use of the property.
Why the other options are wrong
- A. A use variance is for changing the fundamental use of the property, not its dimensions.
- C. A conditional use permit is for specific, compatible uses that require extra review, not for dimensional deviations.
- D. A zoning amendment is a change to the zoning law itself, a complex process not typically used for minor individual dimensional deviations.
Area Variance
Permission granted by a zoning board of appeals to deviate from dimensional requirements of a zoning ordinance, such as setbacks, height limits, or lot coverage.
- Deals with physical dimensions, not land use.
- Requires demonstrating 'practical difficulty'.
- Generally easier to obtain than a use variance.
Memory trick: Area variances fix 'how much' space, Use variances fix 'what' you can do.