Holding Court: If You Build It …

Holding Court is a series by retired Rye City Court Judge Joe Latwin. Latwin retired from the court in December 2022 after thirteen years of service to the City.

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By Joe Latwin

If you build it …

If you want to build almost any structure, you need to apply for and obtain a building permit from the Building Inspector. Upon receiving a building permit application, the Building Inspector must determine if the proposal complies with not only State Building, Fire, and Energy Codes, but the local zoning ordinance.

Since the 1920s, most jurisdictions have adopted “Euclidean” (after Euclid , Ohio – not the Greek geometry guy) zoning codes. These codes set up districts that permit certain types of uses (i.e., residential, single family, multi-family, commercial, etc.) and setting bulk (setbacks, height, floor area, and street frontage) and location requirements for each type of use. After review, the Building Inspector can grant the building permit application by issuing a building permit or deny the application by issuing a denial letter. Any party aggrieved by the Building Inspector’s decision can appeal the decision to the Zoning Board of Appeals (“ZBA”)). To be “aggrieved” one must own property near the affected property.  That is often measured by whether you are within the area in which notice is required to be given (properties located wholly or partially within 300 feet of the perimeter of the property that is the subject of the application).

If a property proposal does not comply with the zoning ordinance, the property owner may seek a variance. There are two types of variances – (1) an Area Variance, that seeks the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations. For example, reducing the required yard setback; or (2) a Use Variance, that seeks the use of land for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations. For example, allowing a gas station in a residentially zoned district. The standard for granting each type of variance greatly differs. To grant an area variance the ZBA must weigh 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:

• (i) 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;
• (ii) whether the benefit sought by the applicant can be achieved by some method feasible for the applicant to pursue, other than an area variance;
• (iii) whether the requested area variance is substantial;
• (iv) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and
• (v) 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.

No such use variance may be granted without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship.   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:

• (i)  the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;
• (ii)  the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood;
• (iii)  the requested use variance, if granted, will not alter the essential character of the neighborhood; and
• (iv) the alleged hardship has not been self-created.

An appeal from a decision of a Building Inspector must be taken within 60 days of the filing of the Building Inspector’s decision. While the appeal is pending, there is a stay of all proceedings in furtherance of the action appealed from. The appeal must be accompanied by a mailing to all the property owners of record within the notice area. The City Clerk will publish the notice of the appear in the newspaper. A hearing will usually be heard by the ZBA at the next monthly meeting. At the hearing, the witnesses will be sworn in and then can address the ZBA. The ZBA will also accept documents submitted. Within 62 days, the ZBA must render a written decision on the appeal. The ZBA may affirm, reverse, or modify the decision of the Building Inspector.

Next up, what happens if you are not satisfied with the decision of the ZBA.