How do I object to a neighbor’s proposed zoning variance?
When a property owner seeks a zoning variance, sometimes called a use variance, for his or her property, neighbors and other interested people have the right to object and oppose the request. Opposing neighbors and other interested people should make a written record against the requested use variance as soon possible. Methods to accomplish this would be to write the governmental entity hearing the zoning variance stating specific reasons for denying the request and ask that all letters be placed in its adminstrative record for the upcoming public hearing.
Shortly after the property owner submits the zoning variance request, the local governmental entity in charge of hearing it will post signage on the property indicating that a variance request is pending with the date, time and hearing for public review and opinion. The request may also be published in the local newspaper. Notice is required for the hearing date, time and place as well.
Before making a formal objection, first speak with the property owner to see if adjustments or accommodations can be made as to his or her request for the use variance. If the property owner refuses to accomodate, the next step should be to find others in the locality opposing the use variance and band together for united opposition.
A good way to begin the process is to circulate a petition against the zoning variance request around the neighborhood, obtain signatures, addresses and telephone numbers and send the signed document to the entity hearing the variance request to be placed in the adminsitrative record well before the set public hearing.
The local zoning board or city council will generally hold a public hearing before voting on the use variance request. These hearings are the best opportunity for neighbors and interested people to speak out against the request and establish a formal record of opposition.
Opponents should be sure to show up at the public hearing fully prepared, by bringing data and real facts to rebut any findings that the zoning board may make to support the passage of the variance. If enough neighbors complain, the board may deny the request at the hearing. Even if opposition is unsuccessful at the hearing, the evidence presented in opposition of the variance may later be used in court by way of the adminstrative record on the subject.
Grounds for Protesting a Zoning Variance
Before the hearing takes place, thoroughly research the factual and legal basis for the opposition. Typical grounds for opposing an use variance are: (1) the change in use is not desired in the neighborhood; (2) the change in use will adversely alter the characteristics of the neighborhood; (3) the change will negatively effect the neighborhood’s property values; (4) the scale of the project is extensive; (5) the change poses a threat to the health and safety of the neighborhood; and (6) there is no inordinate economic burden or hardship on the property owner sufficient to justify the variance.
Additionally, a variance cannot grant a special privilege to a property owner. Research local zoning laws, including the ones that apply to the subject property. The best place to learn about a city’s zoning laws is the jurisdictions' permit and resource department. It's also possible to obtain this information at the county courthouse, the public library, or online. There are maps that will show in detail which zoning laws apply to different areas of the given town or city. It is important to remember that in a large urban area, one property owner may be in a different zone than his or her nearby neighbor.
Formal Action Against the Variance
If your efforts at the public hearing are defeated, and the use variance is passed, you may move on to more formal actions such as a lawsuit. However, before filing a lawsuit against the passage of the use variance, first exhaust all of the required administrative remedies.
While the laws of each city, town, municipality and state will differ, an administrative appeal will generally include appealing a board of zoning decision to the city council or board of supervisors. Once all of the administrative appeals are complete, you can then file a writ of mandate challenging the approval of the variance. It's important to remember that each state has a statute of limitations in which the variance must be challenged in court.
If All Else Fails, You May File an Action in Court: Watch the Statute of Limitations
The overall strategy when objecting to a proposed use variance is to get educated on the zoning laws, band with other neighbors and interested people, and make sure the objections are heard at the public hearing with a complete and detailed adminsitrative record. If the use variance is passed, you may appeal this decision through the municipality where the property is situated. If all else fails, file an action in your county's superior court.
Keep in mind that typical statute of limitations to file a lawsuit against the governmental entity allowing the requested variance are relatively short, ninety (90) days from the approval of the variance.