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Community and Q&A

How difficult is it to obtain a variance?

thegiz | Posted in General Questions on

Good evening hope everyone is doing well. So you have probably seen my posts before I’m basically dealing with a small 2 bedroom home and I’m attempting to expand my upstairs to a 3 bedroom. So on each side of the home the first floor, above a walkout basement, front and back is about 8 feet longer than the second floor. So if I were able to expand both the back and front of the second floor so it is even with the first floor I would have enough room for a 3 bedroom without major disruption to anything else on the second floor. Basically I’m extending 2 existing rooms on the second floor. This in my opinion would probably be more economical than major renovation inside the layout or building a new foundation to the rear or side of the house. My question is how hard is it going to be to obtain a variance? The house is located in a small town in westchester county ny. The home is over 100 years old. The house is about 3 feet from my neighbor, so on one side at least I would need a variance. I’m suppose to be 8 feet from my neighbor. My issue in the front of the home is two fold. It is too close to my neighbor and not far back enough from the front property line. I’m altering the second floor but the first floor of the house is already non conforming. Is getting a variance in this situation impossible? Should I be coming up with a different plan?

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  1. Expert Member
    DCcontrarian | | #1

    Zoning is entirely local. Here in DC it's administered at the neighborhood level.

  2. Patrick_OSullivan | | #2

    This situation is *highly* locale specific. I cannot stress this enough.

    A lawyer who deals with residential zoning in your municipality is your best expert to get an opinion. Second best would be an architect who does a lot of work in the municipality.

    Such professionals will help you understand where on the scale of "no problem, just some paperwork and meetings" to "no way, no how" this sits.

    In my experience in NJ, if you are improving a property and staying within the bounds of the existing non-confirming attributes, it's hopeful that the project will be looked upon favorably.

    If you don't know who to hire as a lawyer (or architect) for some initial guidance, find the meeting minutes for your local zoning board. Look through the last 6-12 months of minutes. I suspect you'll see some attorneys and architects that come up repeatedly. This may provide a good lead as to who to hire. Ideally you want someone who understands the law, local nuance, and the personalities involved.

  3. Expert Member


    It's also worth remembering that variances are to relax bylaws, not building codes. So getting one to reduce setbacks to the property line may still mean you can't build there, or have to use non-combustible construction. See IRC 302.1

  4. walta100 | | #4

    Getting a variance is not likely to be cheap or easy and impossible if your neighbor objects.

    If you are not changing the foot print of the ground floor you may not need a variance just a permit.


  5. sayn3ver | | #5

    Ive been battling my zoning director in a southern NJ municipality. It really depends on the zoning official, the zoning board and the town. Common sense is not to common in my town.

    Without expanding your current ground level footprint I couldn't see it as a major challenge zoning wise. However adding additional square footage to a non conforming structure will probably still trigger a variance. Look up your local zoning code to see how specific it is. My towns zoning code is rather ambiguous about many aspects which is frustrating as an electrician who deals with exacting code standards daily.

    You would probably benefit from stopping in or setting up a meeting with the zoning director or whatever they call it in your town and asking some questions. See what he or she thinks. I would imagine every town is going to operate differently. A variance regardless of favor-ability is probably going to cost you a bunch in application fees, mailings to neighbors, running news paper announcements, etc. Different towns require different amounts of money in an escrow for the variance for their attorney and engineer to look at your proposal.

    my town actually has a site planning board which has members on it from both our planning and zoning boards. Its supposed to be a "workshop" for new applicants to get constructive criticism and suggestions before submitting their variance application. I didn't find this very helpful myself as it seems many board members are not that well versed in our zoning or building codes.

    Everyone suggests an attorney and depending on how much you want this to be a reality, it typically is good advice if you can afford one. But even those projects at my own personal site planning meeting who had a slick well versed attorney were getting beat up by the board.

    I would google the difference between a bulk c variance and a "D" variance. bulk c variances are hardship variances and typically having a property that makes it challenging to abide by the zoning regulations. a bulk c variance (setbacks, height, etc). You sort of have to provide evidence of a hardship (not a financial hardship if you are't approved, but a legal hardship aka being restricted or denied of an approved use, size, accessory structure, etc due to the property or building pre dating modern zoning standards).

    Other towns by me are often accommodating of single family property owners who propose common or typical requests but live in areas that were built prior to the current zoning code and have non conforming elements. My current town doesn't appear to give a crap and would rather have me build in a ridiculous manner that meets their setbacks vs applying some common sense and allowing a solution that is more fitting for the use and aesthetic of the existing neighborhood and the existing property.

    basically, YMMV.

  6. gusfhb | | #6

    I would ask the building inspector. They can give you their [non binding] opinion.
    You may need a variance, but the inspector can give you an idea if that kind of variance is commonly granted
    Another factor is your neighbors. They usually get notified, and while they do not have a direct vote, their opinion usually weighs heavily on the decision

    One of the things about the process, in Mass anyway, is that if they grant you a particular kind of variance, they pretty much have to grant it to anyone. So while they may feel positively about your particular case, it may lead to 'mcmansionization' if the rule they make in your case is applied

  7. nynick | | #7

    I just got a variance in Westchester County in the Town of Somers. I also went through a MAJOR approval process involving multiple agencies including Federal, State and Local Departments for our home in Middlesex County, CT. Mostly, it's time, where one step leads to another. Money too, but mostly time.

    Don't hire the attorney quite yet. Like gusfhb says, go have a nice conversation with the Building Inspector. Ask for help. Be friendly. Ask for advice. That's what they're there for, not to make your life miserable...although some have been known to do so. BE NICE!

    What you're asking for is entirely possible. Be careful about whether the first floor walls can handle the 2nd floor additions btw. It would be nice to have your neighbors on board with this project because they will in fact be notified of your application and will have the opportunity to object to it, whether in person at the Zoning Board meeting or by letter. For one of my applications in CT, 10 people showed up to object and I still got the variance. hahahaha

    What you WILL probably need for your application are drawings of the proposed additions, most likely drawn by an architect. It is common for them to attend the meetings on your behalf to answer the technical questions.

    Stay involved. Attend all the meetings. Ask for advice. Attorneys are unnecessary unless you have major non-compliance. It doesn't sound like you do. Good luck.

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