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The Importance of Neighbors In Land Use Applications- Connecticut

The Importance of Neighbors in Land Use Applications

So you have applied for a variance for your property or if not a variance, a wetlands permit or some other approval that requires a public hearing before a town board or commission. Unless you own your whole town, you have neighbors and your neighbors want to know what you are up to. Many towns require that you notify your neighbors of any pending applications; some towns even send the notifications for you. Even where there is no such requirement, notice of your application will be published in a newspaper and that means your neighbors will find out.

The opinion of your neighbors can have an enormous impact on whether your application is approved, but the degree depends on the type of application. The first thing to note is that the board members or commissioners who will be deciding your application are elected officials, so public opinion is important to them. If twenty people come out opposed to your application, the politically astute commissioner will take notice, and this may hurt your chances of getting an approval. But how much weight neighbor opinion is given depends on the type of the application and the amount of discretion the board or commission is given under the law.

Zone changes, special permits and variances are the toughest applications because the zoning commission and zoning board of appeals, respectively, are given broad discretion in deciding these applications. With a zone change, the decision is entirely discretionary while with variances, since it's almost impossible for an applicant to meet the legal standard for hardship in Connecticut, the decision is in essence discretionary. Strong opposition from nearby landowners can just about doom these applications. Variances are especially difficult because the applicant is asking for permission to use his or her property in violation of zoning regulations. If the applicant seeks a setback variance, great weight is given to the neighbor who is protected by the setback and rightly so. Unless your request is reasonable and the objection of your neighbor is not, neighbor consent is almost a de-facto requirement.

Neighbor opposition can also be important in wetlands applications even though board members don't have quite the discretion described above. Third parties actually have the right to intervene as a party if they can prove that your activity poses an actual threat of harm to the environment. If there is a successful intervention, if you end up in litigation with the town, the intervening parties will have to be parties to any settlements, which can make negotiations difficult. Even absent intervention, if our twenty neighbors show up with "save the lake" signs, e.g., a board can go rogue and deny even a reasonable application, daring you to appeal.

Subdivisions and site plan approvals are less worrisome because commissions have less discretion. With subdivisions, you merely have to show that your application meets the regulations and a commission or board must approve it (technically anyway). With site plan approvals, you are essentially asking for approval for an "as of right" use, so unless there is a health or safety issue, neighbor opposition should carry little weight.

No matter the type of application, however, it is good to know going in how your neighbors will react to your proposal. The answer is obvious in some cases, not so obvious in others. I am often asked by clients whether they should talk to their neighbors and my advice varies, as it should. If you have a no-win situation and you don't need an easement or other concession from a neighbor, then there really is no need to spend time talking to neighbors--just make sure you know what their objections will be and be prepared to address them fully.

But if your application is innocuous or specially affects a particular neighbor, I find that news is usually better received over a beer or some brownies than it is in a cold letter from a stranger. So talk to your neighbor and bring a copy of your plans for discussion. Don't tell them what you are "going top do" but instead show them what you'd like to do and expect input. This simple act can go a long way in winning you neighbors over and getting that approval.

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