Nonprofits opposing variance applications

Visitor Question: Can a nonprofit organization send a representative employee to oppose a variance application without hiring an attorney?

Editor Reply: In every jurisdiction where I have direct knowledge, anyone can participate in a hearing about whether or not to grant a variance from the zoning ordinance, whether or not they bring an attorney.

For readers who may not know about variances, which are called exceptions in some locations, a local zoning ordinance typically includes some provision for applicants to obtain permission to go outside of the zoning rules. For example, if the ordinance says that a building cannot be closer than 10 feet to the property line, unusual circumstances could mean that an applicant seeks a formal legal action to allow an outbuilding that is only 8 feet from the property line.

Most often, there is a separate board, apart from the city council and the planning commission, that hears applications for these variances. State laws usually require a public hearing where others can express an opinion about the proposal.

You may be aware already that the procedure for obtaining a variance is a little more formal and legalistic than a typical plan commission action. Under a model zoning ordinance created about 100 years ago, local decisions on variances can be appealed only to a court, not to the city council, mayor, or some other city body. Thus over time, variance procedures have become less about public opinion and more about creating the beginning of a legal record that a court would consider.

In an increasing number of cities and towns, it is a hearing officer rather than a board of adjustment or board of appeals that is in charge of the proceeding. The latest one that I attended took place in a tiny room with very little seating. You can see that the nature of handling variance applications really varies widely.

While you no doubt can attend the hearing without an attorney, the question is whether this is advisable. Here you need to be aware of local custom. If you don't know if it is common for members of the public to appear at a variance hearing without an attorney, the first recommendation would be to ask the staff member who works with the zoning board of appeals (whatever it may be called in your jurisdiction).

If the staff member will not answer that question, try to find someone else who will. One possibility is to ask the city attorney (who you might be able to ask before or after another public meeting they attend, such as a city council meeting). If there is a group that conducts the hearing, such as a board of zoning adjustment, look on the city's website to find out who chairs the board and call that person. If all else fails, talk with an attorney your nonprofit has used or who donates to your nonprofit, and ask them to find out. The attorney network in a city is usually fairly tight knit, and they can ask others until they find someone who knows.

My point is that if almost everyone offering testimony about a zoning variance brings an attorney with them, you should follow that custom if you want to be effective. If your networking shows that some participants who support or oppose a variance bring an attorney, and some don't, then follow your instinct about whether the nonprofit representative can present good arguments and stay disciplined about not saying too much or too little. Unlike a rezoning hearing, where sometimes a blatantly emotional appeal will carry the day, variance hearings are usually somewhat subdued. Of course, there are exceptions, but as a baseline, consider that opposing variances in a winning manner usually involves a factual approach about the impact on nearby properties.

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