How to stop construction of a three story building

Visitor Question: How does a town stop the construction of a three-story building? Currently, the first request by the applicant to the town was denied, and the town gave specific information on what the developer needed to fix. Now the board members and the developer are making their case of the new changes, with the residents attending this meeting.

The proposed construction of a three story, sixteen (16) unit multi-family building with twenty-five (25) parking spaces is across the street from a school. The property is located in the Borough’s R-5 Zone, which only allows construction of single and two- family homes. The developer is seeking approval from the Zoning Board of a variance to permit construction of the building. This area is also an historic area, with an old church and pond and museum nearby.

My questions are:

1) How much effect do the public and the residents have on the decision of the board members’ approval?

2) How can we stop the construction of this 3 story building? It feels like the board is already on board to approve it, but needs to do the legal proceedings.

A petition with more than 800 signatures has already been signed by the residents, and a lot of the residents do not approve of this new construction.

I want to be prepared for the next board meeting with facts. Any advice would be great.

Editors Reply: For the benefit of our readers as well as the person who asked this question, we want to try to clarify terms that apply in most of the U.S. The questioner’s place could always have an unusual procedures, but as a first step, check into the possibilities we are outlining below.

The most likely situation is that a developer applied to a town board for a permit to construct this building. At that point the developer most likely was told that this multi-family land use is not permitted under the zoning ordinance, since that zoning district allows only single-family or two-family homes. Then either the developer on their own or on the direction of town officials or staff decided that the way to remedy this problem was to apply for a variance.

In most places, a variance is appropriate only when there is a unique hardship due to physical properties of the land. Usually the variance is granted by a separate group than the town council, which decides on rezoning based in part on the advice of a planning commission. The board that gives variances has a limited function and is supposed to pay attention only to the criteria listed in the zoning ordinance for a variance and to the physical situation of the property in question. We admit that often the zoning board of appeals, or whatever it may be called in your town, listens to public opinion, becomes overly sympathetic with a property owner, or otherwise strays from the criteria in the ordinance, but that is the theory. To become more familiar with this, you need to read our page on zoning variances.

We admit that there is a very small but growing segment of well-run communities and competent city planner who admit that there might be such a thing as a valid "use variance," but they are few and far between. Let’s hope your town isn't one of them.

To deal with your specific questions, in a well-run town, the likely impact of residents expressing their strong opinion will differ depending on whether this procedure is actually a rezoning or a variance. If it is a rezoning, the typical process begins with a public hearing before the planning commission, followed by a recommendation from that commission to the city council, a public hearing before the city council, and then action by the city council.

In theory the planning commission would be less interested in public opinion than the city council, but of course planning commissioners are just unpaid residents, and depending on the individual, they may be swayed by resident opinion too. A city council (or whatever it is called in your location) is elected and therefore should be quite concerned about resident opinion, while still exercising their own judgment about what is best for the community in the long run.

Your second question is how to stop construction of the building. You may well be correct that the board already has made up its mind, especially if they were quite active in recommending a course of action to the developer. If so, your petition and testimony against the proposed building at a hearing may not mean too much.

But we wouldn't recommend that you give up. Even if you lose this battle, you might be able to stop additional future development if you attract other residents in the process of opposing this particular building. If you haven't done so already, you may want to read and absorb our article about opposing a rezoning to give you the best possible chance of winning at the decision-making level.

Here are a few additional things that occur to us as we look at your set of facts as you have presented them. These are things to think about as you prepare for the meeting.

1. Are there pressures on your board to allow more affordable housing in the form of apartments? If so, be ready with reasonable ideas about where multi-family housing seems more appropriate. If there is affordable housing discussion, including comments that teachers and firefighters can’t live in your community, this could be influencing the board. But if there are no such issues, and housing at affordable prices is readily available, the rush to build multi-family in a single-family zone should be criticized more severely.

2. We are not impressed with the argument that this proposed building would be across the street from a school. Most schools are larger than most single-family homes, so if you use this argument, you would sound to your board like the typical single-family homeowners who show up at public hearings and say things like, "You know what kind of people live in apartments." Of course your situation may vary from what we picture in our minds, but sit with our comment for a while. Try to avoid sounding like you are protecting your own social class.

3. The historic area argument might be a good one, depending on the facts. Multi-family buildings aren't inherently inappropriate in an historic district; in fact, they are what makes many historic districts viable. So to make this argument, you need to attack the architectural character of the proposed building. This might or might not include an argument that a three-story building is highly incompatible with your one-story single-family homes and one-story school, if indeed those are the typical heights in your area. If a modern design, as opposed to a traditional look, is proposed for the multi-family building, criticize specific proposed building features rather than implying that multi-family and historic areas are always incompatible.

4. Regardless of any of the above, it's ridiculous to use anything other than a rezoning to place multi-family building in a single-family and two-family zoning district, so don't be afraid to say so. Just don't act like you are just the run of the mill "against it" homeowners.

We hope these reflections on our part will help you prepare. You might be indignant about some of our comments, but at least you can see how others might be thinking.

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