N.Y. Comp. Codes R. & Regs. tit. 6 § 666.9

Current through Register Vol. 46, No. 45, November 2, 2024

Section 666.9 - Variances from the regulations

(a) No variance may authorize any development or improvement prohibited by the act. The department, upon receipt of a written request made in conjunction with a permit application pursuant to this Part, may vary or modify any provision of this Part relating to allowable land uses or development so long as it is the minimum variance necessary and only if:

(1) in the case of a request for a use variance, the provision(s) to be varied or modified would cause an unnecessary hardship for the applicant. In order to prove such unnecessary hardship the applicant must demonstrate that:

(i) the provision(s) to be varied or modified deprive the applicant of all economic use or benefit from the property in question, which deprivation must be established 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 river corridor;

(iii) the requested use variance, if granted, will not alter the essential character of the river corridor; and

(iv) the alleged hardship has not been self-created; and

(2) in the case of a request for an area variance, the area or dimensional provision(s) to be varied or modified would cause practical difficulty for the applicant. In making its determination, the department will consider the benefit to the applicant if the variance is granted, as weighed against the adverse impacts upon river resources. The department will also consider:

(i) whether and to what extent a change will be produced in the character of the river corridor 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 river corridor; and

(v) whether the alleged practical difficulty was self-created, which consideration will be relevant to the decision of the department, but will not necessarily preclude the granting of the area variance.

In addition to addressing the foregoing considerations, an applicant for an area variance has the option of seeking to prove, by competent financial evidence, that the strict application of the subject provision(s) of this Part will result in significant economic injury. Such evidence will be limited to the effect of such provision(s) upon the value of the property in question; whether the value would be enhanced were a variance granted will not be relevant. If the applicant demonstrates significant economic injury, the burden is on the department to establish that the strict application of the subject provision(s) is reasonably related to the purpose and policy of the act and this Part.

(3) in the case of applicants which are State agencies or municipal corporations, the granting of a variance must be equally as environmentally protective of the river values identified in section 666.2(e) of this Part as compliance with the provision(s) to be varied and must fulfill a public health, safety or welfare function.

(b) A written request for a variance will contain each of the following:

(1) a description of the variance requested;

(2) a listing of each standard to be varied;

(3) a statement of the minimum relief necessary from each standard to be varied;

(4) a map of the area showing the location of the requested variance, proposed mitigation, property boundaries, and adjacent owners of record, if deemed necessary by the department;

(5) in the case of a request for a use variance, the applicant may be required to provide financial evidence which may include the following:

(i) the rate of return on the property both with and without the requested variance;

(ii) the owner's investment in the property, including purchase price, taxes, expenses, carrying costs, and cost of improvements; and

(iii) income, if any, produced by the property;

(6) a discussion of alternative site possibilities outside the river area; and

(7) a discussion of proposals for environmental impact reduction and/or mitigation. Such proposed mitigation must comply with the following:

(i) the mitigation must occur on or in the immediate vicinity of the site of the proposed variance if possible;

(ii) the location of the proposed mitigation must be subject to regulation under the act and this Part upon completion; and

(iii) the mitigation must provide substantially the same or more benefits than will be lost through the proposed activity.

(c) Any mitigation required in connection with the grant of a variance will be included as a permit condition and must be completed if other work is commenced.

(d) Any land use or development which, but for this subdivision, would require a variance due to noncompliance with one or more specific standards or criteria in this Part, may be permitted by the department without such variance if:

(1) the department determines that the project, if approved, will not adversely impact any affected river resource; and

(2) the project satisfies all other applicable standards and criteria, including the standards for permit issuance set forth in section 666.8 of this Part.

For the purposes of this subdivision, a determination of complete application pursuant to Part 621 of this Title shall not preclude the department from requiring an applicant to submit additional information in the event that one or more potential significant adverse impacts are identified and a variance is necessary for the project to proceed.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 666.9