Collier Marsh | Construction Executive
Construction companies and developers are accelerating projects in the southeast and throughout the country as the economy rebounds from the worst of the COVID-19 pandemic. Whether they are building commercial, industrial or residential projects, these developments often require rezoning to maximize an investment. But rezoning disputes can add significant delays and costs to a project and can even defeat the project altogether.
There are proactive steps construction companies can take to avoid disputes as they are working to secure rezoning approval, as well after the rezoning is complete. During the initial rezoning process, before a final municipal decision, one of the best practices is to anticipate opposition and address it head-on. As for post-approval disputes, those often come down to how carefully a company followed the local procedures and, where applicable, the local evidentiary requirements.
AVOIDING PRE-APPROVAL DISPUTES
Disputes during the rezoning process typically arise with neighbors and other stakeholders who oppose the project. Before initiating a rezoning, a developer should identify who might oppose the project and why. Anticipating the opposition helps companies evaluate in advance what they can and cannot include in their proposal to appease these stakeholders. If there isn’t much room to give, this step at least helps companies prepare thoughtful talking points to articulate and defend their positions.
The key is figuring out what is most important to the opposition. For this reason, another best practice is to maintain an open line of communication with those who are opposed. Taking the time to listen to their feedback can go a long way. Adapting to the feedback can help prevent, or at least mitigate, rezoning disputes.
For example, take a company that is developing a commercial project that backs up to a residential neighborhood. That company should anticipate from the start that some neighbors will not be excited about the increase in traffic, noise and—at a fundamental level—the change to their neighborhood. The company should be prepared to exceed minimum requirements to mitigate the impacts of their project. Among other things, it should consider adding landscaping, enhancing buffers and taking other steps to make the project more palatable to the neighborhood. By engaging with neighborhood stakeholders early and listening to their concerns, a developer can identify and prioritize the concessions that will make the biggest difference.
AVOIDING POST-APPROVAL DISPUTES
Just because rezoning has been approved does not mean developers are in the clear. The best methods to avoid post-approval challenges to rezonings depend, in large part, on the type of approval received. For purely legislative decisions, one of the biggest threats to a rezoning approval is procedural errors. Rezoning procedures vary greatly among municipalities, but common errors include incomplete rezoning submissions and improper notice to the community that inhibit the community’s ability to participate in the rezoning process.
For purely legislative rezonings, make sure to follow the local requirements to a “T”—and make sure to document compliance with those requirements. These best practices require an investment in understanding exactly what is required form the start. When construction companies endeavor to rezone for the first time in a new municipality, it is especially useful to partner with attorneys and consultants who are familiar with the local requirements.
Another common rezoning process is through quasi-judicial proceedings. Quasi-judicial proceedings have elements of legislative decisions, but the decision-making body also acts like a judge and reaches a final decision based on evidence submitted for their consideration.
With quasi-judicial proceedings, complacency can be the enemy. When a project doesn’t face much opposition, there can be a tendency for companies to get complacent in collecting and properly presenting evidence, especially because there are costs that accompany a thorough submission. In North Carolina, for example, the best practice is to engage expert witnesses such as appraisers or engineers to testify in satisfaction of local requirements. Expert costs are worth the early investment; omitting these experts hurts the chances of success and makes an approval more susceptible to reversal after the fact. And fighting a challenge to an approved rezoning can be far more costly than early investment in a thorough submission.
CONCLUSION AND AN IMPORTANT NOTE ABOUT LOCAL NUANCE
Some disputes are inevitable, but they are actions contractors can take to minimize them. One of the best ways for construction companies to avoid disputes during the rezoning process is to anticipate opposition, listen to the opposition and adapt in the feasible ways that are most important to the opposition. As companies go through rezonings, they should also invest in understanding the local requirements and preparing the strongest evidence when required.
That last part—understanding the local requirements—is critical. Zoning is inherently local. Municipalities all have their own ordinances, procedures, and decision-makers. As a result, the best practices in one city may be vastly different from another just down the road. For this reason, an overarching step construction companies can take is to partner with attorneys, engineers and other consultants who are familiar with the specific requirements where the development is planned. Listening to local experts can help to avoid all sorts of pitfalls.