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Thread: Zoning appeal: standing?

  1. #1
    Cyburbian mike gurnee's avatar
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    Zoning appeal: standing?

    I don't get many zoning appeals, less than one a year. The question is: Does any place have standards on who has the right to appeal? Our code just says that anyone aggrieved by a zoning decision may appeal.

    In this case, a competitor has objected to our decision on relocation of a cell tower. On the petition, the attorney involved replaced the competitor with a person whom I do not know.

    Just how "aggrieved" should a person be in order to file a zoning appeal?

  2. #2
    Cyburbian munibulldog's avatar
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    First of all, has he met the timing rules to challenge a decision? There should be a process for challenging decisions in your ordinance.

    If the applicant has not met the timing requirements, have your attorney draft a letter to him stating this.

    If he has met the timing requirements, you better let him have his say in front of the zoning board of appeals. BUT ... he has to be questioning a decision or interpretation of the board, and he has to state what he is challenging, so get him to tell you, or better, get him to put it in writing. Don't deny him his right to appeal though, it might come back to burn you if you do.

  3. #3
    Cyburbian Emeritus Chet's avatar
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    In Wisconsin, "any aggreived party" has the right to appeal in 30 days. After that, any aggreived party, well, sucks to be you. I have often thought about filing against stupid variances, but now that I work as a conslutant (intentional mispelling mastiff), not gonna happen.

  4. #4
    Member Wulf9's avatar
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    My preference is that anybody has the right to appeal. Any time you try to limit the "standing," you eliminate the potential for a citizen to appeal.

    Every person should have the ability to speak to the Council on decisions made by a lower body.

    In past jobs, I have seen the "standing" argument used to keep citizens not favored by the Council from appealing a project.

  5. #5
    Cyburbian Rem's avatar
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    In NSW, an approval can only be appealed by a third party on process - not merit. That is, if the application was assessed and determined in accordance with law - no appeal rights. There is a seperate class of significant developments (called 'designated development'} where there is a 45 day third party, merit appeal right.

  6. #6
    Forums Administrator & Gallery Moderator NHPlanner's avatar
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    Quote Originally posted by Chet
    In Wisconsin, "any aggreived party" has the right to appeal in 30 days.
    Ditto the New Hampshire Statutes.
    "Growth is inevitable and desirable, but destruction of community character is not. The question is not whether your part of the world is going to change. The question is how." -- Edward T. McMahon, The Conservation Fund

  7. #7
    Cyburbian donk's avatar
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    Inmy current and previous jurisdictions, any person has the right to appeal.

    Here in order to be permitted to appeal you "must" attend or be represented at the original hearing (ie agent or letter).
    Too lazy to beat myself up for being to lazy to beat myself up for being too lazy to... well you get the point....

  8. #8
    Cyburbian
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    In MA anyone has the right to appeal within 20 days of a board decision or 30 days of a building commissioner decision. Only when the case gets to court does the issue of standing become relevant.
    Planning is much like acting, as my old theater professor used to say, "If you sin, sin boldly, only you know if you are ad libbing." I follow this adage almost daily.

  9. #9
    Cyburbian mike gurnee's avatar
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    And I agree with all the above. I wondered if standing could ever be part of the board deliberation. I may bring it up just to show the intent of the appeal, then go in to the merits of our decision vs. the appeal. I just starting thinking that an anti-zoning type could appeal left and right just to tie us up.

  10. #10
    Cyburbian thinknik's avatar
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    http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0163/SEC3215.HTM&Title=->2003->Ch0163->Section%203215

    Our zoning code requires that appellants have "standing" according to the Florida Statues (state). Those parties are described as "aggrieved or adversely affected party."

    Who is: " any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons. The term includes the owner, developer, or applicant for a development order."

    Note: In Florida local zoning codes are all tied to Comprehensive Plan which are required by state statutes.

    The ordiance that created this new requirement is new and was controversial when introduced -- some still want it reversed. It originated as a reaction to a single property owner who was said be creating "frivolous" appeals regarding her (considerable) land holdings.

  11. #11
    Cyburbian Queen B's avatar
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    Quote Originally posted by mike gurnee
    And I agree with all the above. I wondered if standing could ever be part of the board deliberation. I may bring it up just to show the intent of the appeal, then go in to the merits of our decision vs. the appeal. I just starting thinking that an anti-zoning type could appeal left and right just to tie us up.
    Of course they could Mike, but generally they just really don't care so no one thinks about it.
    It is all a matter of perspective!!!

  12. #12
    Cyburbian donk's avatar
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    Quote Originally posted by mike gurnee
    And I agree with all the above. I wondered if standing could ever be part of the board deliberation. I may bring it up just to show the intent of the appeal, then go in to the merits of our decision vs. the appeal. I just starting thinking that an anti-zoning type could appeal left and right just to tie us up.

    They might get 1 or 2 chances at this, but in a small jurisidiction the judge is going to get pretty PO'd at someone who appeals everything. Here, if a case is found to be vexatious or frivolous the Board has the ability to award costs to the wronged party. Another way around it is to make the applicaiton fees really high with an out that if the jurisidiction is found to be wrong than a refund will be issued, less administrative costs.

    Was there not a story posted here from a place where a person had appealed so many items that a restraining order was placed on them and if they wanted to lodge an appeal a judge had to approve it first?
    Too lazy to beat myself up for being to lazy to beat myself up for being too lazy to... well you get the point....

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