How To Appeal a Zoning Board Decision

If your application for a zoning change received an initial denial, there are still some avenues of recourse that may offer an eventual approval.  The process of appealing a zoning board decision may expose the applicant to public scrutiny, media attention, political dealings, and some hefty processing fees.  However, there are cases where the initial decision by a planning and zoning board should be questioned and reversed.

The city or county ordinances of your particular jurisdiction will describe the process for appeal.  Usually, the appeal will be heard by a Board of Zoning Adjustment or BZA.  In some jurisdictions, a zoning appeal goes directly to the city or county commission, or the elected officials of that government unit.  A specific application and fee for the appeal should be filed in a timely manner, so avoid delaying too long and be aware of the deadline  if you intend to appeal.

Some situations of building and land use do not fit the general standards of a zoning district, which can generate an automatic denial at the rezoning hearing.  These cases are often passed on to another board for a different type of review.  If you believe that your zoning case was unique because of a particular locational issue, such as an unusual shape of the parcel, the local BZA may have the authority to grant a variance for your situation.  If your zoning issue has arisen from a case of personal hardship, such as a family member who needs handicap access, the BZA may be able to grant a special exception.

In both of these cases, you will need to lay out the reasons that your case is different from the average situation in that particular zoning district.  Perhaps your lot requires a very long driveway due to its irregular flag shape, and it is the only lot of that shape in the subdivision.  You could describe how the lot met the code at the time you purchased it, then the code was changed before your building permit could be processed.  The BZA will not typically approve a variance or exception if it becomes a negative precedent for the neighborhood.  However, for a legitimate land use that is prevented by a technicality in the code, they may offer clemency.  In this capacity, the BZA offers property owners an opportunity to build according to the intent of the code, even when they cannot meet the letter of the law due to an unusual circumstance.

Your application for a special exception or variance should demonstrate that most of the zoning code requirements can be met, except for the specific area where you need flexibility.  Where you propose to deviate from the code, there should still be an effort to meet safety and aesthetic requirements so that neighboring properties are not affected by your proposal.  Remember that a major foundation of zoning codes is the police power of government, which exists to protect the health and safety of the community, and to guard against losses in property value.  If your proposal (after it's built) becomes a menace to the neighborhood, zoning will have failed in its mission to guard the interests of the community.  Therefore, it is helpful to explain several ways in which your proposal will have a positive rather than negative impact, such as the rehabilitation of an abandoned building, for example.

If your request for zoning approval involves a broader issue, such as a change from residential to commercial land use, the appeal will most likely be heard at the county or city commission level.  In this case, you would want to research other rezoning and land use changes of a similar type.  You may be able to establish that there is a precedent for your type of request.  You may also need to hold some extra meetings to hear the concerns of neighboring property owners.  If the neighbors suggest fewer driveways, more landscape buffers, lower building heights, and other conditions of approval, you may have to redraw your site plan to show how these requests have been accommodated prior to presenting your appeal at a public hearing.

Since you will be dealing with elected officials, public opinion of your proposal can be a major turning point in how the ultimate vote is cast.  This can become a balancing act between the integrity of your property rights versus the compatibility of your proposed use with the surrounding area.  If the local planning and zoning staff members indicate that your proposal is premature, you may have to present a market study showing the demand for your proposed use.  You may also have to negotiate a way to provide roads, water, sewer and other public services or infrastructure without overburdening the existing facilities in that area.  You may need to refer to the comprehensive plan policies of the locality, and cite the reasons why your development proposal is consistent with the plan.

An effort to negotiate on matters of compatibility will usually sway some of the commissioner votes towards the applicant's proposal.  However, sometimes the proposal is still viewed as premature or unsuitable, and the case is denied again.  The next level of appeal is the circuit court, for those with enough resources to launch a major legal challenge.  There may be recourse to change a zoning decision in court if it appears that the city or county acted against their own criteria, such as a contradiction to their own comprehensive plan.  If the local government's actions appeared to be arbitrary and capricious, the court case may succeed.  However, many of these cases end with the court upholding the original zoning denial.  In conclusion, the applicant should conduct as much research as possible prior to paying hefty appeal fees and legal fees.  Many zoning denials are based on policies of the city or county comprehensive plan, which carry the weight of law and cannot be reversed without a review at the state level.


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