How to Object to Neighbor's Variance

by Jen
(New Jersey)

Visitor Question: I live in a condo and my building got a use variance to build to full lot coverage in 2005. My condo is in the residential zone (R-1) and should be 2 families with 60% lot coverage. However, it was built with 12 units, 100% lot coverage.

We, the owners, were not involved with requesting variances or construction of the building. My balconies, the only light and air source to my home, are on the property line.

Now my next door neighbor in the R-1 zone just got a variance to build 94% lot coverage, which means blocking my balconies with merely a 6'7" feet setback.

Since my building is 4-story and the neighbor's proposed building is 5-story, all the units will be blocked by the new building.

We all know that the city is very corrupted and the neighbor has big connections in the city to back them up. My questions are:

1. If we appeal, who will be reviewing the appeal case? If it is reviewed by the city, we pretty much know the decision won't be reversed.

2. Another question is can we sue the zoning board since they approved my building 11 years ago, and now approved the neighbor's variances to block us?

Editors' Reply: On questions such as this one, we have to answer on the basis of most typical zoning practice around the country. We also have to assume that visitors are using the correct terminology.

On that basis, we proceed ahead fearlessly. Lot coverage means the percentage of the area of the total lot that is covered by the building. So it is crazy to build anything at 100% lot coverage, but that is what was done.

The word variance usually means an action that allows something that would not ordinarily be allowed under zoning is granted permission to do so by a city board, on the basis that the literal interpretation of the zoning ordinance would bring a unique hardship to the property owner.

To allow a property owner and developer to go from 60 percent lot coverage to 100 percent lot coverage is just silly.

Now apparently there is another application for a variance from the next door neighbor. For residential properties 94 percent lot coverage is still too much.

To answer your questions, if your city is typical, the people who will be deciding on the variance are those who sit on a board called the board of zoning appeals, board of adjustment, or a variation on one of these names. They are not the same people as the planning commission or the city council.

It's possible that this isn't what you mean by a variance, of course. So you need to ask the question directly of your city, or start looking through the zoning ordinance online, if it is posted, as most are these days. There could be a "variance" granted by a city council, but that would not be typical. It is also possible that an administrative person grants variances, but that too would be quite unusual.

Whatever group or individual makes the decision will be either appointed by the city government or an employee. All you can do in this situation is make your most logical argument and appeal to people's better nature. No one really would want to have their balcony blocked like this, so perhaps your decision makers would show some empathy.

Now let's move to your second question about suing. If you can afford it, and it makes economic sense, your condo association certainly could sue the city for this ridiculous action. Talk to a local attorney if you want to pursue this. We generally point out that people bringing suit against a city on account of a zoning action have an uphill battle, due to a doctrine called presumption of validity of a governmental action.

But your situation borders on a civil case almost. So the facts of the situation might incline an attorney to think this would not be a hopeless case.

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