Basic Procedures in Administration of Zoning Regulations: Appeals
James B. Cook and George F. Nickolaus
Department of Community Development
This guide has been prepared as a training aid for city and county officials and citizens. It illustrates the basic sequence of events in situations commonly involved with administration of local zoning regulations. It indicates the normal place and function of the various officials and bodies in the different kinds of procedures.
The outline of appeal procedures below, available as a chart in the printed versions of this publication, provides a framework that will help in considering many aspects and contingencies that ordinarily are a part of the zoning administration process. It is not intended to prescribe universally applicable procedures. Each city and county adopts its own set of zoning regulations, so the provisions of each specific zoning ordinance or order must be taken into account for a thorough understanding of local procedures.
Brief commentaries on various elements shown in the illustration are included. These serve to clarify some basic points and provide supplemental information and assistance in evaluating administrative procedures.
Outline of appeal procedures when Certificate of Occupancy or Building Permit is denied.
If Certificate of Occupancy or Building Permit is denied, go to the Board of Adjustment to either
- Allege error appeal
- Request exception
- Request variance.
After contacting the Board of Adjustment, a Notice and Public Hearing can be called. This is followed by Finding of Fact, after which the Board upholds or reverses the ruling, grants or denies exception or grants or denies variance.
Commentaries on various elements of the appeal procedure
Refer to the outline above to trace the numbered step procedures described below.
- Appeal (to Board of Adjustment)
An appeal to the Board of Adjustment involves a situation in which an interested party alleges the Zoning Enforcement Officer (Building Inspector) has made an error in the interpretation of the Zoning Regulations in a specific case. This usually arises when the officer refuses to issue a certificate of occupancy or a building permit, though it can come up in other circumstances (e.g. when an interested party contends the officer was in error by issuing a particular permit). The function of the Board of Adjustment in an appeal is to make a judgment as to the interpretation of the zoning provisions in the context of the specific facts of the case. The Board, in an appeal, has no authority to set aside any provision of the zoning regulations or to authorize the issuance of a permit that violates the strict terms of the zoning provision.
In most zoning regulations there are specific provisions that prohibit certain things except as the Board of Adjustment may allow them. The text of the zoning regulations usually includes some standards that must be met if an exception is to be made. In other words, for a request for an "exception" and the circumstances under which it can be granted in the particular situation. It is fairly common for provisions regarding "exceptions" to relate to some aspects of non-conforming uses.
The most familiar action requested of a Board of Adjustment is to grant a "variance." This is to allow some variation in the dimensional requirements of the zoning regulations in cases where their strict application would involve undue hardship. Generally, variations in the use requirements cannot be granted by the Board. The authority of the Board to grant variances is limited to a vary narrow range of situations. Often Boards of Adjustment have tended to overlook the great limitations on their power and acted in ways that go beyond their authority. The Board should not authorize as "variances" things that amount to an amendment of the zoning provision. The Board has no power to amend the Zoning Regulations. That power is rightly vested in the legislative body. A Board of Adjustment that tends to overstep its authority in granting variances confuses the situation, makes for erratic enforcement and zoning administration, and opens the way for charges of favoritism.
- Board of Adjustment
The Board of Adjustment is an important body in zoning administration. However, it has very specific and limited powers and duties. Fair zoning administration depends on the Board's ability to do its work well, and to restrict its operations to matters within its jurisdiction. The Board of Adjustment and its members should be interested in equitable and effective zoning and should be free to make recommendations to the Planning Commission or the legislative body on matters of concern in zoning. The Board, however, should not interfere with the Zoning Enforcement Officer (Building Inspector) in the performance of his or her duties, or attempt to take to itself the functions of the planning commission or the legislative body. The Board must always keep in mind that it does not have the authority to amend the zoning regulations. The Board of Adjustment does not have a formal role in the amendment process. The Board should make clear to the public that it does not have power to amend the zoning provision. If requests come to it of this nature, it should refuse to hear them and advise those making the request as to the proper procedures through which to seek Zoning amendments. The decisions of the Board of Adjustment are subject to review in the circuit courts, but not by the County court, City Council or Board of Aldermen. The legislative body itself does not have the authority to revoke or modify a decision of the Board of Adjustment, nor can it direct the Board to render a particular decision in a specific case. If the legislative body feels the Board of Adjustment is in error in a certain case, it may seek remedy through the judicial system.
DM7613, reviewed October 1993