7 Tips for Winning a Variance at the Zoning Board of Appeals
There is a problem with your city or town Zoning Board of Appeals. It’s a problem that’s age old, and in light of the fact that this problem has been around for so long, I sometimes wonder if it may ever be resolved. Yes… it’s chronic. What’s the problem? Put simply: the Zoning Board of Appeals is comprised of people. People are the problem. Let me elaborate.
People are the problem because they have opinions and emotions and sometimes even carry preconceived judgments based on those opinions and emotions. Consider the phenomena of jury nullification, for instance, where a group of people will sidestep its duty because it believes the underlying law or charges are flawed. Of course opinions and emotions are the birthright of everyone, but people sometimes allow their opinions and emotions to color what ought to be an objective evaluation. In other words, people sometimes bring preconception and prejudice into their deliberations and behave counter to their charge. This is not unusual in the case of zoning variances, where they are granted (sometimes) quite liberally. I submit to you that if it is given a proper, objective evaluation, a request for a zoning variance or waiver would very rarely conclude in favor of the applicant. This bodes well for applicants, but don’t get too excited – it’s not to say waivers are handed out like candy.
Generally speaking, when it comes to zoning regulations, a waiver cannot technically be granted without the presence of a hardship. And hardship in a zoning sense does not nearly belong in any domain where empathy or sympathy would bear influence. A hardship is absolutely not related to anything financial or personal. Put simply, hardship is an objective, fact based condition arising naturally from a feature that’s unique to your property and creates an insurmountable obstacle that prevents you from meeting the part of the regulation that you seek a waiver from. In other words, you can’t meet a requirement because of the way the property is and so you are looking for a waiver from the requirement.
That said, I speculate that many waivers granted in any given year by any given ZBA are granted in the absence of an authentic hardship. In fact, I would go further and imagine that of those waivers, most are granted based purely on whether or not any neighbors came out to the public hearing in opposition to the application. If there’s no opposition (and if the request is relatively modest and benign) then the waiver may actually be granted despite there being no valid hardship…if the approach is careful. And these tips are the care that I have known to win variances where technically no real hardship was present.
Before I get to the tips, I need to first say that what follows is meant for DIY’ers. If that’s you, then these tips are for you. But there’s a mother-of-all-tips kind of tip that precedes the ones that follow below. That is the advice to hire a zoning attorney or architect or land use engineer to handle the application and the presentation. Local professionals have often appeared numerous times before the Board and will have a keen grasp of the regulation. Moreover, they may be familiar to the Board and may have an added influence in that regard – one that you will not have.
So with that said, I have 7 tips to offer for anyone who is going for a zoning variance:
1. Present a (real) hardship.
Obviously, this is quite literally the number one tip for winning a variance. But as mentioned above, a hardship is a very narrowly defined thing. It must be based on unique, limiting characteristics of your land parcel. Contrary to popular misconceptions, a zoning hardship has absolutely no basis in personal circumstances. If you are hard pressed to identify a real hardship, but you have a strong will and a dire need to alter your house a certain way despite the lack of a true hardship, and you are insistent on trying to win one, then my first advice is to be very thoughtful with your interpretation of that very narrowly defined term. Show some logic that does not go to the obvious no-no’s like financial impact, decreased land value, mother-in-law needs a place to live, etc. and provide something that Board members can sign on to without appearing to be in dereliction of their duty. Would you like more coaching on what a hardship is? Get a deeper dive into hardship here.
2. Be Respectful.
Be respectful. To the Board, to your neighbors (those who are either for OR against your application), to the ZEO (Zoning Enforcement Officer), to the audience at the hearing and above all be respectful to the responsibility of the Board by understanding what exactly its duty is. It is not to obstruct your dream house addition by lording power over you, so be careful not to present that attitude. Understand the overall process for a waiver and have a grasp on where everyone fits in to that process. Having that knowledge and demonstrating it in your conversations, exchanges and presentation is a good step taken towards respectful interaction. Respect is also shown by being on time, by addressing the Board with a tone of deference, and generally by checking any bit of potentially bad behavior at the door.
3. Be Prepared.
Fire up your strategy, perform reconnaissance work and organize a good pre-game, so to speak. Form alliances upfront and do any “horse trading” before the hearing. I don’t mean bribery…just some good-natured quid pro quo. Ask for neighbors to appear in person to speak in favor of your application, or to write a letter if they cannot attend in person. Provide letter language as suggestions. Attend a public hearing leading up to your own, to get the gist of what it’s like and to get a feel for the room and the degree of formality. Should you wear business attire? Or just casual clothing? Model your wardrobe choices on what you see at the prior hearing. Note the manner in which people address the Board. Observe how applicants present their requests and look for any correlation to the decisions that are reached.
4. Create exhibits.
Create exhibits like plans and photos and the like and share them with neighbors (loop this tip in with #3 as necessary) Integrate the exhibits with your argument and bring them to the Hearing. If you are making “poster size” graphics to present, like plans or maps, consider bringing multiple copies of a smaller scale version that you can distribute to the Board members if they so allow – sometimes they appreciate that. Mount your larger graphic on a stiff backing (like foam core) for easy propping on an easel (if one is at the hearing – if not use a vacant chair or bring a companion to hold it up for you). If your municipality provides an online GIS mapping service, include a printout of that information in your presentation. You can print those maps to scale, and annotate it to scale with your proposed activity. Photographs are useful as well, especially if they showcase your argument. Ultimately, bring any exhibits that will establish the context of what you’re proposing, illustrate the extent of your proposed activities and show relationship of your property and project site to abutting neighbors. If you share these exhibits with your neighbors before the hearing and if the ones who cannot attend the hearing can reference the exhibits in their letters, that will give an added boost to your application.
5. Practice your argument.
Practice your argument so you can deliver it with humble confidence, and without ego or any air of entitlement. You want to be assertive, not aggressive; formidable, not adversarial. Be yourself when you get up to speak – whether that means speaking extemporaneously or by reading a pre-prepared statement verbatim. In any event, write down the key components of your argument and study them so that you are assured not to forget anything when you are before the Board and so you are comfortable and confident in your delivery. You may even want to have a companion perform a devil’s advocate role in a mock hearing with you, just to help you get in the proper frame of mind for answering questions. The more pointed and aggravating the mock questions are, the better prepared you will be for any sticky questions in your actual hearing, so enlist a companion who will not hold back!
6. Review with the ZEO.
Review your application and what you are wanting to do with the ZEO beforehand, if possible, to learn any glaring glitches or omissions or experience with similar applications of other variance seekers who came before you with the same nature of hardship or request. This can be enormously helpful to understanding what your’e up against, and to avoid any last minute corrections that could leave you off the agenda of the hearing date you are targeting.
Per tips #2 & #3 above, you want to strike an open, transparent and respectful tone with the ZEO at your very first introduction and carry that all the way through your application experience. More likely than not, the ZEO will assist you in filling out the application and helping you to make sure all the requirements of the process have been met.
Speaking of target dates, hearings sometimes fill up and you may find that an opening is not available for some months, so keep that in mind during your planning. In terms of the actual hearing agenda, it is usually filled in a first come, first listed basis, so if you don’t want to sit through all of the applications, try to submit your application early.
7. Express Gratitude.
When you appear before the Board to present your case, be authentically grateful and express that gratitude. Do it before you wrap your presentation, so that your gratitude is expressed whether or not they act in your favor. Acknowledge that you are asking for an exception to be made in your case, based on your hardship, and express gratitude that there is a process available for your appeal. You may even go so far as to thank the Commissioners for their service to you and the community. If you do all this, do it without hamming it up. If you feel it genuinely, it should come off as natural and authentic and you should be fine. If however you really don’t feel that way genuinely, and you are not a convincing actor, then simply say thank you with sincerity…after all, they did volunteer their personal time to hear your case.
In conclusion, there’s really nothing earth-shattering in these tips. Most of them are based on principles that we all learn in grade school as we become socialized among other people. But that’s the key here, really. Unless you have some kind of power available to you to wield, or a slam-dunk hardship that is undeniable on it’s face, you are presenting your ask to reasonable people, who may (or may not) put reason aside in your favor if your hardship is technically invalid but your ask is benign and can’t be called greedy. The influence of a good natured, positive and respectful manner that you bring to your hearing may help the people on the Board to see things your way. A favorable outcome will likely have grown, to some extent, out of the quality of your interaction with the people who constitute the Board.
Good luck to you in your preparation and your application!