Nudes, Dudes, and Zoning Disputes

Anyone who has participated in a local zoning controversy—whether as a property owner desiring to alter the use of a parcel, a nearby property owner displeased with the proposed change, or a governmental agency (council, planning commission, zoning board of appeals) required to resolve the issue—knows full well that these matters can arouse strong emotions.   Indeed, a whole vocabulary of clever acronyms has emerged to characterize attitudes frequently encountered in these situations, such as NIMBY (not in my backyard), NIMTOO (not in my term of office), BANANA (build absolutely nothing anywhere near anyone), DUDE (developer under delusions of entitlement), and NUDE (neighborhood under delusions of entitlement).   Litigation may result from these disputes, and the threat of litigation is often made whether or not a party intends to follow through.  However, an important point to keep in mind is this:  unless a municipality clearly violates the Constitution or a statute in making a land use decision, or clearly abuses its discretion, a court is likely to uphold the municipal decision.   Hence, parties involved in these matters would be well advised to focus on how best to present and explain their positions, rather than on how a court might eventually bail them out.

A number of things are worth the attention of both the property owner wishing to make a change and nearby property owners opposed to the change:

Remember that those on the other side feel as strongly as you do, and may have legitimate constitutional, legal, and economic interests at stake.   Consider communicating with those people in advance of seeking relief from the municipality (you may even be required by ordinance to do so), and consider making concessions which do not seriously undermine your position but which may enable the matter to be resolved with minimum unnecessary expenditure of time, money, and stress.

Carefully review the statutes, ordinances, municipal plans, and other development standards which will provide the framework for the municipal decision, and consider discussing the matter with the municipality’s professional planning staff to determine whether there are interpretations relevant to those governing documents, or proposed changes to those documents under consideration, which might impact the municipality’s decision.

Prepare thoroughly for any presentation to a decision-making body, considering such questions as:  Who should speak?  What documents or other exhibits should be provided?  Would any expert testimony be helpful?  Can community interests be addressed so that the presentation will not be viewed as merely an expression of narrow economic concerns?  How can the presentation be orchestrated so as to avoid undue repetition or personal attack?

From the standpoint of the municipal decision-making bodies, attention must be paid to a number of other matters:

All relevant procedures, must be followed, such as providing all notices required by statute and ordinance, and conducting all public hearings which may be required.

Adequate rationale should be provided for all decisions, with an indication of how all relevant standards have been considered.

Compliance with these suggestions will of course not guarantee complete satisfaction by all parties with the decision reached, but may at least help assure that all important concerns have been fairly and adequately addressed.

Pear Sperling attorneys have considerable experience in dealing with municipal government matters, both with regard to zoning and land use and many other topics, and have represented both municipal agencies and private parties in resolving such matters.   For more information or to speak with us about your legal issue, please contact us in Ann Arbor at 734-665-4441.  To learn more about Pear Sperling Eggan & Daniels, P.C., or any of our attorneys, please visit us at www.psedlaw.com.