Objecting to a Neighbor's Proposed Zoning Variance
UPDATED: September 18, 2013
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The overall strategy of 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 detailed administrative record. If the use variance is passed, you can still appeal this decision through the municipality where the property is situated. If that fails, file an action in your county's superior court, bearing in mind that the typical statute of limitations to file against the governmental entity allowing the requested variance is ninety days from the approval of the variance.
Grounds for Protesting a Zoning Variance
Research the local zoning laws including the ones that apply to the applicant's property. His variance request cannot grant a special privilege to this land. Learn about the city or town's zoning laws from the jurisdiction's permit and resource department. Information may also be available at the county courthouse, the public library, or online. Maps will show in detail which zoning laws apply to different areas of the given town or city. In a large urban area, one property owner may be in a different zone than his nearby neighbor.
Before the hearing takes place, thoroughly examine whether the change in use from granting the variance will alter the essential character of the neighborhood, if the change in use will negatively affect the neighborhood’s property values, the change poses a threat to the health and safety of the neighborhood, the scale of the project is extensive, whether there is not an inordinate economic burden on the applicant sufficient to justify the variance, or the change in use is not desired by the neighborhood.
Procedure to Object to Variance Approval
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 place of the hearing for public review and opinion. The variance request may also be published in the newspaper. If an interested individual wishes to object to variance approval, it is a good idea to first speak to the property owner applicant to see if adjustments or accommodations can be made to the requested use variance. If the property owner refuses to accommodate, 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 administrative record before the local zoning board or city council holds the public hearing. If enough neighbors complain with specific data rebutting reasons for variance approval, the board may deny the request.
Action if the Variance is Approved
If the variance is still passed, the opponent can file a writ of mandate challenging the approval of the variance. But, before pursuing a lawsuit, all the required administrative remedies must be exhausted. This administrative appeal generally includes appealing the board's zoning decision to the city council or board of supervisors. Once that is completed, the variance can be challenged in court, being vigilant that the short statute of limitations (typically ninety days from variance approval) has not run.