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Success In The Neighborhood Zoning Battle

Community associations are increasingly finding themselves in zoning battles with adjoining property owners or developers. History has shown that neighborhood groups often do not fare as well as they could in zoning battles. Regardless of whether the opposing parties have more knowledge and/or financial resources or because community associations are unfamiliar with zoning strategies and procedures, there are options available that may work better than others for your association. Here are some ideas for neighborhood groups looking to develop more successful strategies to winning zoning fights.

Obtain a Copy of All Written Materials Regarding the Rezoning.

When interested parties seek rezonings, they must file an application explaining in detail what they are planning to do. The application is a matter of public record. Always start by obtaining a copy of the zoning application, and periodically check for supplements or amendments to avoid surprises. Careful study of the zoning application will often reveal the strengths and weaknesses of the case at hand and how best to fight the proposed rezoning.

Talk with the Land Use Planner Assigned to Your Case.

Most local governments have professional planning staffs which review zoning applications and make recommendations on: (a) whether to approve or deny a rezoning request, and (b) specific zoning conditions which might minimize the harmful effects of a particular rezoning request. Talk to the planners early, and let them know your concerns.

Understand What Zoning Is All About.

While zoning can appear complicated, the basics are easy to understand. Zoning laws are designed to encourage compatible land uses to locate close to one another and away from incompatible land uses. Residential land uses are thought to be best located next to other residential uses and away from office and commercial uses.

Understand the Nature of the Zoning Review Process.

Zoning in Georgia is typically a three-step process. First, the planning staff reviews a rezoning request and makes a recommendation. Next, a public hearing is held before the local planning commission which reviews the case and makes its own recommendation. Finally, the governing body (the county commission or city council) holds a public hearing and decides the case. Neighborhood groups often do not realize that the governing body which makes the final zoning decision can disregard the recommendations it receives. Therefore, it is important that a neighborhood opposed to a rezoning be represented at all public hearings, even if its position has been rejected in the past.

Get Promises in Writing.

If anyone makes promises to you about development, these promises will likely not be enforceable unless included as written conditions of a zoning approval. Verbal assurances are not binding. Even with written conditions, signed private zoning agreements with the developer are valuable.

Be Realistic and Pick Your Battles Carefully.

In zoning, the issue is usually not whether the land will be developed, but how it will be developed. Those with realistic views of their neighborhoods as dynamic, evolving places are usually best able to define and shape the future face of their neighborhoods.

Do the Right Things Politically.

When it comes to the politics of rezoning, there is strength in numbers. Write letters, collect petitions, and turn out large, well-behaved crowds at the hearings. Slogan buttons, armbands and T-shirts are fine; clapping, cheering, banners, and other forms of demonstration are not.

Make the Governing Body Comfortable That Your Position is Legally Defensible.

Litigation and the threat of litigation are often used as tactics to get zoning concessions from local governments. It is important for neighborhood groups to show the governing body that the denial of the rezoning request is legally defensible. Submitting a position paper that explains in legal terms why the property has economic value as zoned and why a rezoning denial will greatly benefit the public often demonstrates why a request is legally defensible.

Make the Governing Body Comfortable That Your Position Reflects Sound Land Use Policy.

One veteran county commissioner once said: "Turning out a large crowd gets us in the mood to help, but voicing the opposition in sound land use terms sure gives us an excuse to do the right thing."
Winning zoning cases often means that neighborhood groups need to speak and think like land use planners and developers. There are new terms to master and lengthy zoning ordinances to understand. Without the expertise, neighborhood groups are, at best, playing on an uneven field and, at worst, are not meaningful participants in the process. Often, a lack of understanding can result in neighborhood groups focusing on issues of a non-zoning nature or of lower priority to the land planners and governmental decision-makers. One common example is focusing too much on drainage problems, which normally is a post-zoning issue.

When homeowners can explain in "zoning talk" why sound land use policy dictates a particular position, the homeowners have a greater chance of achieving their goals. Having the expertise also leaves neighborhood groups in a better position to gauge when to fight and when to compromise with regard to any zoning case. This is where using a skilled zoning attorney is invaluable. Remember, your opponent likely will be using an attorney whose career is understanding and working the zoning process.

Use Your Presentation Time Wisely.

Most local governments have a ten-minute limit on either side's presentation of a zoning case. It is crucial to be organized and concise. The presentation should be the culmination of a neighborhood's hard work in opposing a rezoning request and a summary of the neighborhood's position. Photographs, charts, and booklets can all be used to help explain the neighborhood's case. Zoning presentations are increasingly the domain of zoning attorneys due to their skill and experience in making successful presentations.

Carefully Consider An Appeal.

When a rezoning request is denied, the losing party may sue the local governing body to try to overturn the decision. When this occurs, most neighborhood groups simply monitor the litigation, letting the local governing body defend its position. Increasingly, however, neighborhood groups are filing "friend of the court" briefs to state the neighborhood's position and let the judge know that this is a case of great interest to the neighborhood. On some occasions, neighboring homeowners may seek to become actual parties to a lawsuit either to challenge an approved rezoning or to support a zoning denial.

For more information, contact one of our zoning attorneys.