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Victor Menasce

Unlocking the Secrets of Zoning Variances

When it comes to real estate and property development, few things can be as challenging as navigating the intricacies of zoning regulations. Whether you’re an experienced developer or just dipping your toes into the real estate world, zoning variances can be a daunting subject. Today, we’re going to explore the art of negotiating minor zoning variances, shedding light on some crucial aspects of this complex process.

Understanding the Legal Landscape

First things first, let’s acknowledge that zoning is a legal land use doctrine. It’s like a rulebook that governs how land can be used in a particular area. And much like any legal framework, zoning compliance generally takes precedence over common sense.

The primary purpose of zoning rules is to ensure that neighborhoods maintain a sense of harmony. Think of it as the invisible hand that guides how properties are developed. Zoning rules dictate setbacks, height restrictions, and density limits to establish some semblance of order. The goal is to avoid scenarios where you walk down a street and think, “Well, that’s just weird.”

For instance, having houses set back at consistent distances on a street creates a harmonious character in the area. Imagine if houses were randomly placed, with no rhyme or reason. One neighbor might want a massive front yard, while another insists on a backyard pool. Chaos would reign supreme.

Differences in building heights can introduce a host of issues. These variations could lead to wind-induced problems, snow loading, or even privacy concerns. Imagine a scenario where a resident on an upper floor can peer into their neighbor’s low-rise property. It’s not an ideal situation.

Another critical consideration is the distance between buildings and property lines. Building too close to a property line can increase the risk of fire propagation. In such cases, strict fire safety measures, like fire-rated materials and suppression systems, become necessary to prevent a fire from engulfing entire rows of houses.

Negotiating a Zoning Variance

Imagine you have a proposed project with a side yard setback that falls below the city’s zoning code standards. Let’s say the code mandates a five-foot side yard, and your neighboring property also has this requirement. If you proceed with this setback, you’d have a 10-foot gap between the two buildings.

Now, you’re in discussions with your neighbor about their project, which includes a sixteen-unit building. The main building respects the five-foot setback, but there will be a bicycle storage garage on the property line and a wheelchair accessible ramp that comes within one foot of the property line. Your neighbor seeks a minor variance, and you, as the adjacent property owner, can either support or oppose it.

Interestingly, you’re also seeking some relief from the rules. You want a four-foot setback instead of five. Both your building and your neighbor’s building will have minimal windows along the side yard, addressing privacy concerns. So, you’ve decided to support your neighbor’s request in exchange for their support.

However, the negotiation doesn’t stop at setbacks. When you start excavating for underground parking, you risk destabilizing the soil on your neighbor’s property. This necessitates a mutual shoring agreement to ensure that both construction projects can proceed without causing harm to one another.

The Uncertain Nature of Zoning Variances

In many cases, zoning variances are decided by committees or zoning boards. These decisions are guided by existing legislation and legal precedents set in similar cases. However, the process is far from straightforward. The opposition from well-organized neighbors can sway the decision in unexpected ways. They may present compelling arguments for denying your variance request in favor of their interests.

This is why the process of getting zoning variances can be so uncertain. All it takes is a group of well-organized neighbors to make a lengthy and compelling case as to why your request should be denied and their interests put ahead of yours.

A famous case in San Francisco illustrates this point vividly. Opponents of a high-rise project once argued passionately for the preservation of a laundromat that was slated for closure to make way for a gleaming new high-rise building. The battle between development and preservation can be intense, with the fate of a project hanging in the balance.

The Three-Step Process

Achieving a zoning variance generally involves three key steps:

  • Support from City Staff. Convincing city staff of the reasonableness of your request.
  • Neighbor Support. Enlisting the support of neighbors who could be affected by the variance.
  • Legal Precedence. Building a case based on legal precedents of similar variances being granted.

To succeed, you need to put effort into all three areas. You need city staff on your side, grassroots neighbor support, and a skilled land use attorney to argue your case based on legal precedents.

In Conclusion, Zoning variances are like a complex puzzle. It takes careful planning, strategic negotiations, and a deep understanding of the legal landscape to successfully navigate this terrain. One or two well-placed pieces won’t complete the picture; you need all three elements working together to achieve your goals. While the process can be uncertain and challenging, with the right approach, you can unlock the secrets of zoning variances and make your property development dreams a reality.

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