Q: The developer of an adjacent property is attempting to rezone it. We are already facing problems due to the growth in our area. Does the local government have a legal or moral obligation to protect us? (R.Z., via e-mail)
A: According to my partner Kathleen O. Berkey, AICP, Board Certified in City, County, and Local Government, local governments cannot decide rezoning cases based on perceived “moral” obligations. However, there may be a legal basis to deny a rezoning if it will excessively burden the surrounding transportation network or pose a risk to public health, safety, or welfare.
There are a number of approval criteria applied to rezoning, which are heard in “quasi-judicial” or “mini trial” type proceedings. These criteria will vary by jurisdiction and depend on the type of zoning relief being sought. Different criteria will likely apply to a rezoning, as opposed to a special exception or variance, for example.
The general rule requires the developer to demonstrate that the proposed development complies with the applicable criteria, as well as the code of ordinances, land development regulations, and comprehensive plan. These standards often require that a proposed project not lead to excessive impact on public facilities, including roads. The proposed development usually has to be compatible with the general appearance and character of the community.
Rezonings also generally cannot result in detriment to the “public health, safety, or welfare.” Once the developer makes a showing to support that the proposed project complies with the approval criteria, the burden shifts to the local government to justify denial of the rezoning for proper reasons based on competent substantial evidence in the record.
Third parties challenging a rezoning request, such as individual property owners and associations, must establish on the record that the developer’s proposal does not comply with the approval criteria and the local government’s codes based on competent substantial evidence. This often includes providing expert witness testimony at the hearings on the application.
An overall dislike for a proposed development is usually insufficient. Any opposition to the proposed project must be specifically tied to the stated approval criteria and applicable code requirements, and ideally be supported by expert witness testimony and written reports submitted into the record. For example, testimony of transportation engineers and independent traffic impact studies showing that the proposed project will exceed the levels of service on the road network to serving the project and the surrounding area may be a sufficient basis for the local government to deny the request.
The record must contain all information necessary to support a denial on appeal. In other words, if evidence on an issue being appealed was not presented at the hearing before the local government, the evidence does not exist as far as the appeal is concerned.
If your association wishes to oppose the proposed development, it is recommended that you consult with a knowledgeable land use, and zoning attorney. That attorney will analyze the application and assess the potential impacts on your community. These cases are also most successfully addressed by negotiating with the developer to have more favorable development conditions.
If you have to go to a hearing, an experienced attorney can help you find the right expert witnesses and advocate your position. An attorney can also help you to understand what uses and improvements are currently permissible on the adjacent property, by right, without needing to go through the public hearing process. You can then be more prepared for what development could come down the pike if the rezoning is denied.
Your association should also consult with its regular corporate counsel to ensure it has the proper authority to use association funds in this type of proceeding, as they can be protracted and costly.