In an ideal scenario for any property owner or developer looking to build on Long Island, all aspects of a new development project will comply with the applicable provisions of a municipality’s zoning ordinance. The reality for many, however, is that there is usually some element of the project that is either not permitted or triggers the need for additional scrutiny. In some cases, the project may require a variance or a special exception. Understanding the differences between these two forms of zoning relief is vital for navigating any municipality’s zoning approval process.

Variances

In zoning, a variance is special permission granted by a board of appeals that allow property owners to deviate from specific requirements under the zoning regulations. This enables owners to use their property in ways that would otherwise be prohibited.

Variances are divided into two categories: area variances and use variances.

Area variances allow owners to deviate from a zoning ordinance’s dimensional or physical requirements, such as maximum height or minimum setback. In determining whether to grant an area variance, the board of appeals is required to consider the following 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.” Town Law § 267-b(3)(b).

Use variances are variances that allow a use for a property that is not permitted by the zoning ordinance. Unlike area variances, use variances require a showing by the applicant that the applicable zoning regulations and restrictions have caused an unnecessary hardship.

“In order establish an 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.” Town Law § 267-b(2)(b).

Special Exceptions

Special exceptions, also referred to as special exception use permits or special use permits, allow a property owner to use their land in a way that may be permitted if the applicant is able to satisfy specific criteria enumerated in the zoning ordinance. Although the criterion for granting a special exception differs among the various municipalities, the underlying rationale often revolves around ensuring an orderly and harmonious arrangement of land uses in the zoning district and in the community.

The Distinction

This important distinction between variances and special exceptions is highlighted in the Second Department’s recent decision in McGinn v. Zoning Bd. of Appeals of Town of E. Hampton. In its decision, the court observed, “However, ‘[u]nlike a variance which gives permission to an owner to use property in a manner inconsistent with a local zoning ordinance, a special exception gives permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right.’” McGinn v. Zoning Bd. of Appeals of Town of E. Hampton, 241 A.D.3d 1340 (2d Dep’t. 2025)(quoting Matter of Retail Prop. Trust v. Board of Zoning Appeals of Town of Hempstead, 98 N.Y.2d 190, 195 (2002).

As noted by the Court of Appeals, “The significance of this distinction is that the ‘inclusion of the permitted use in the ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood.’” Retail Prop. Tr. v. Bd. of Zoning Appeals of Town of Hempstead, 98 N.Y.2d 190, 195 (2002) (quoting Matter of North Shore Steak House v. Board of Appeals of Inc. Vil. of Thomaston, 30 N.Y.2d 238, 243 (1972)).

Based on the differences between variances and special exceptions, “the burden of proof on the applicant seeking a special use permit ‘is lighter than that on an [applicant] seeking a variance, the former only being required to show compliance with any legislatively imposed conditions on an otherwise permitted use, while the latter must show an undue hardship in complying with the ordinance.’” Id.

For many projects, zoning relief in the form of variances or special exceptions may be required. Understanding the relief required and the factors to be established is of paramount importance to ultimately getting a shovel in the ground.