Question

I received notice from the city that a developer has applied to rezone my neighborhood from low density residential to high density residential. I think the developer wants to put a large apartment complex a couple blocks from my house. I am concerned the rezone will change the character of my neighborhood and lead to more people, traffic, safety issues, and noise. It may also cause our property values to decrease.

How do I stop the city from rezoning my neighborhood?

Answer

In cases like this, as an initial step, it is important to make note of any procedural requirements. Depending on the rules where you live, you may receive written notice that includes information about the proposed zone change, as well as applicable deadlines and upcoming hearings.

While this initial notice is helpful, you should confirm for yourself any procedural requirements that may apply, by reviewing the applicable zoning ordinance (sometimes called a “development code”). If the ordinance is unclear, promptly contact a land use attorney to help make sure you do not miss deadlines or important hearings. If you do, you may lose your right to appeal.

Being familiar with the procedural requirements will also help you make sure the city and developer follow the rules.

In addition to the procedural requirements, the zoning ordinance will describe the substantive standards that apply to the rezone application. For example, the zoning ordinance may require the applicant to show:

• That the zone change is consistent with any applicable comprehensive plan for the area. A comprehensive plan is a general plan that directs the future use and development of land. A "comp plan" might state, for example, that a certain area should be preserved as low density residential. A zone change seeking high density might be inconsistent with that statement in the comprehensive plan. If a proposed zone change is not consistent with the comprehensive plan, the application should be denied. Sometimes, if a proposed zone change is inconsistent with the plan, the applicant will simultaneously seek a plan amendment that allows the zone change to be consistent with the amended comprehensive plan. If that is the case, you will also want to become familiar with the standards that apply to a comprehensive plan amendment.
• That there is a need for the zone change. Sometimes this standard will require that the proponent of the change show that there has been a change in circumstances or that a mistake was made when the property was originally zoned. As an example, if there was no mistake made when the neighborhood was originally zoned, and there is sufficient land elsewhere for high density residential use, the fact the applicant wants to develop a specific piece of property may not be enough to justify a zone change, since there is no need to rezone the neighborhood.
• That the zone change will be consistent with surrounding uses. This may require the applicant to show the zone change will not result in property values going down, or interfere with existing development. For example, rezoning a neighborhood from low density residential to heavy industrial, when the neighborhood is surrounded by other residential uses, is likely to be found inconsistent with surrounding uses.
• That the zone change is consistent with the orderly development of public services. A zone change may not be appropriate in an area with no public services, especially if another part of town already has the services and can support the same type of development the proposed zone change will allow. Such requirement may also require the applicant to show that the zone change will not significantly impact traffic.

By becoming familiar with the approval criteria, you will be in a better position to identify any weaknesses in the application and to argue that the applicant cannot demonstrate compliance with some or all of the approval criteria.

In addition to the approval criteria found in the zoning ordinance, there may be state and federal laws that apply. A land use attorney help you identify all applicable laws and regulations that must be complied with by the applicant.

In addition to becoming familiar with both the procedural and substantive requirements that apply to the zone change request, you will also want to put together a strong showing in opposition to the proposal. To do this, some people host neighborhood meetings to see how others in the area feel about the proposal. Putting together a vocal group in opposition can influence decision makers. The decision maker is usually a hearings officer, planning commission, city council, county board. Since land use decisions like zone changes are political in nature, a well organized, vocal group in opposition to a proposal can influence decision makers who may be concerned about the next election.

All those opposing the zone change should plan to speak out against it at the scheduled public hearing. In fact, to preserve your right to appeal, you will likely need to participate in the hearing. In some cases, you may be able to “make an appearance” by submitting written testimony, but you should confirm whether you can do that with a local land use attorney. Sometimes a petition put together by opponents to a land use proposal can be helpful. A petition is most effective if it clearly states what the signatories are opposing and why. However, a petition will most likely not be sufficient to preserve anyone’s right to appeal, should the zone change be approved.

In cases like this, it may also be possible for the developer to seek a “variance” to the zoning ordinance that allows the apartment complex despite the uses permitted under current zoning. Variances can be difficult to obtain, so perhaps the developer believes the zone change is the best way to proceed. However, if you are more concerned about the zone change than a single apartment complex, it may be possible to negotiate a solution that allows the apartment complex through a variance, but avoids a complete rezone of the neighborhood.

Zone changes can be complicated applications. Opposing the application can also be complicated, so it is important to be familiar with the procedural and substantive requirements. A land use attorney familiar with the standards that the city or county will apply is a valuable resource in these cases.

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