Varying the Variance: How New York City Can Solve Its Housing Crisis and Optimize Land Use to Serve the Public Interest

Urban America requires a solution to its affordable housing crisis, and combined with the above data, Census Bureau reports demonstrate that New York City needs a solution more than most cities. The present land use paradigm—zoning— creates neighborhoods unsullied by incompatible uses. But zoning also limits landowners’ freedom to utilize their parcels as they see fit. From the beginning of modern urban land use regulation, the variance has alleviated this tension by providing a constitutional safety valve—it creates exceptions to zoning restrictions when economic necessity demands it. Unfortunately, New York City’s current zoning and variance system slows affordable housing development and empowers special interest groups who oppose development even when the public clamors for aggressive change.
Because zoning has proved to be the best system yet for managing the conflicting needs of urban development, and affordable housing requires an exception to present zoning restrictions, policymakers should consider an expansion of the variance system. In particular, policymakers should adopt a new version of the variance—in essence, a “public interest variance”— through which municipalities could permit development outside the scope of the zoning rules for a particular property when it would serve an enumerated public interest. This would directly increase housing affordability and indirectly support antipoverty efforts that have been long resistant to government intervention intended to increase the supply of housing and decrease its cost relative to incomes. Ultimately, this note acknowledges the value of highly regulated, modern land use rules but seeks a solution that promotes property rights and the implementation of public objectives (i.e., housing affordability) through an expanded variance system.

Nathan T. Boone

Brooklyn Law Review

2016

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