Improper Notification of Zoning Variance

by KB
(Lady Lake, Florida)

Visitor Question: My question is about a zoning variance. In this town you must notify all neighboring properties within 150 feet. One neighboring property was not notified. The records also did not note their name as a property that was given notification. Would there be a penalty after the fact? If so where would I look to learn that? Could this be pursued without hiring an attorney?

Editors Reply: Usually when a property owner is not notified properly, a staff member has made an honest mistake in the form of a clerical error or poor map-reading that day.

The remedy for you and your neighbors depends on whether the zoning board of appeals, board of adjustment, or whatever that board is called in your jurisdiction has already held its public hearing and made its decision on the variance.

If the variance already has been granted, then your only recourse is to go to court to contest the action. You would need an attorney if you want to pursue that, but the attorney would have the lack of procedural due process as a good argument on your behalf.

If you are writing before the board of adjustment meeting and hearing has been held, however, you are in a much better position for fighting this without hiring an attorney.

In that event, go to the hearing and explain what happened. If the city staff member is reasonably cooperative, treat that person well, but enlist his or her support in owning up to the error.

The hope is that you could convince the board of adjustment to postpone or extend the hearing to the next meeting. Then the city staff may be willing and able to go through the notification process again, this time correcting the mistake. Your goal should be to convince the board of adjustment to insist that staff do this.

Usually we do not recommend trying to intimidate appointed volunteers such as a board of adjustment, but in this case if they have been properly oriented to their task, they realize that going to court is the only appeal for their actions. So threatening to file a lawsuit is a very reasonable action on your part. Just keep the tone businesslike and civil, because if you can obtain the sympathy of the board, you might be able to avoid the expense of an attorney.

In almost all cases, the zoning ordinance is where specific local laws concerning the granting of variances are found. In Florida you might have a unified growth management law or land development code, which encompasses the traditional functions of a zoning ordinance, subdivision regulation, sign regulation, and miscellaneous environmental regulations such as tree protection.

So the zoning ordinance or its substitute could give specific directions somewhat different from what we have said, but our experience is that zoning variance processes are pretty uniform across the U.S.

Many to most towns, cities, and counties now have their complete zoning ordinance online, making it more convenient to browse through than having to go to city hall during business hours.

We hope these observations are helpful. The critical point here is whether or not the variance already has been granted. If so, unless your local ordinance gives some unusual twist, you would have to go to court. If not, your neighbors should attend the hearing as a group and try to persuade the board of appeals to recess the hearing until proper notice can be given.

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