When pursuing an area variance in New York State, the local Zoning Board of Appeals applies a five-factor balancing test to determine if they should grant the variance. One of these factors is if the "difficulty" encountered by the applicant is "self-created":

[NYS Town Law §267-B(3)(b)] In making its determination, the zoning board of appeals shall take into consideration 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: [...] (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.

Please note that use variances have a similar "self-created hardship" test, but I'm asking only about area variances and self-created difficulties.

I don't understand what is meant by "self-created", even after some web research on the topic. I'm not sure where the dividing line is intended or expected to be between "self-created" and "not self-created" difficulties. I'm particularly interested in cases where:

  • the applicant purchased the property in question, with the zoning rules that cause them difficulty already in place

and either:

  • the applicant wants to build something that would not fit the zoning rules, and thus would need a variance; but
  • the applicant could also have built something for a similar use that would fit the rules, and wouldn't need a variance (i.e. a smaller structure, or a structure on a different part of the property)


  • the applicant received a building permit; and
  • they or those they hired constructed something that deviated enough from the plans submitted for the building permit to violate zoning code in a way they would not have had they followed the plans perfectly

In these cases it seems to me the applicant got in their situation due to a series of decisions they, or people working on their behalf, took, and could have known exactly how this would violate zoning code. When, if ever, in these cases, could complying with the zoning code reasonably be considered not to be a self-created difficulty?

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