If you’re building on a piece of property within city limits, you probably have zoning restrictions. Zoning restrictions tell you what you can and can’t do with your property. For example, you can’t build a gas station on a lot that is zoned for residential use, at least not easily. Zoning generally tells you how far away from your property’s edge you can build (something called “setbacks”), how high you can build, how much impervious cover is allowed, and even, in some cases, how many square feet you can have.
Our lot is zoned “SF-2”, short for “Single Family Residence – Standard Lot”. If your city is worth two hoots and a holler, it should have all of this info on its web site. In fact, you should even be able to figure out your zoning from its web site as well. To be SF-2 in Austin, you have to have a lot of at least 5,750 square feet. This zoning also comes with a height limit (35 feet), restrictions on usage (for example, we could have a bed and breakfast or an urban farm on our lot [fire up the tractor!] but not a duplex), minimum lot width (50 feet), maximum building coverage (40 percent), maximum impervious cover (45 percent), and minimum setbacks (25 feet for front yard, 5 feet for side yard [15 for street-side side yard], and 10 feet for rear yard).
In Austin, zoning gets a little more complicated because we have something called the “McMansion Ordinance”. After a slew of sun-blocking McMansions popped up like cowpies in a feedlot during the last building boom, the city put some additional restrictions on certain parts of town. For example, McMansion applies to our lot, so instead of being able to build to 35 feet, we can only build to 32 feet. McMansion puts a “building envelope” over the lot and restricts square footage. Because our lot is bigger-than-the-average-lot, we don’t have any worries, at least for what we want to do. Your (hopefully local) architect should have a good familiarity with the your city’s zoning requirements (and zoning personnel and personalities).
Just because your zoning says you can’t do something doesn’t mean you can’t do it. One path is to do it anyways and duke it out in court once the city finds out (but as the saying goes: “You can’t fight city hall…”). The other path is to seek a variance. A variance is an official reprieve from the city from a certain zoning requirement. Although it sounds rather serious, cities give variances all the time. In fact, in my humble opinion, it’s appropriate that they do. Rules are rules, but rules usually don’t anticipate all circumstances. And if you’re close to meeting the standards (the parameters of which are somewhat arbitrarily set), why shouldn’t you be able to do want you want to do?
Let’s say you have a lot zoned SF-2 but, instead of having the required 5,750 square feet, you only have 5,700 square feet. Guess what: You can’t build on the lot! The variance system allows you to go to the city and get an official reprieve from that requirement so you can build. When seeking a variance, you have to be reasonable. Let’s say that instead of 5,700 square feet, you had 2,500. Unless you gave heartily to the mayor in last year’s election, you’re probably not going to get that variance. Variances take time and, if you use professionals to represent you, money. So you definitely want to carefully consider any required variances before you buy a lot. Again, if you architected up early, he or she can help you out.
I served on our current neighborhood association’s steering committee for more than 10 years. Because we are an older neighborhood (established before 1900), there are no enforceable neighborhood-wide covenants in place. The only influence we have on development is through the variance and rezoning processes. Because these are city and, therefore, public processes, there are opportunities for public input and influence on the final decisions. In Austin, neighborhood associations are fairly powerful, so if you, the landowner, don’t have the support of the neighbors and the neighborhood association, you may be in for the ride of your life.
There’s a right way and a wrong way to get a variance or a zoning change. The wrong way is to try and bypass the neighborhood association and go straight to the Board of Adjustments (the name of the body appointed by city councilfolk and the mayor to oversee variance requests, at least in Austin). You might get away with this if it’s a minor request, but if it’s not a minor request, you just made whoopie to yourself. The right way is to meet with the neighbors and neighborhood association and be honest and forthright with your goals. You need their trust, and you have to earn it. All neighborhood associations have had multiple bad experiences with developers, so they approach developers or anyone who smacks of a developer with great caution. Your every move and word will be scrutinized.
Many times I’ve interacted, as a steering committee member, with developers and landowners that cannot believe that they “have to” meet with and negotiate with the neighborhood association. Meeting with the association is not required, but you are almost certainly assured smooth sailing through the process if you have the neighborhood on your side. If you are looking for minor variances, then getting a stamp of approval (or expression of neutrality) from the neighborhood association will assure smooth sailing. If you’re looking for something more major, then prepare to do a little wheeling and dealing. If you and your agent are doing it right, then you’re listening carefully to concerns and doing what you honestly can to address those concerns whether or not you agree that the concerns are concerns. It’s also good to ensure that you and/or your agents are polite and professional to everyone at all times, even if you and the neighborhood aren’t seeing eye-to-eye. If you want to create a neighborhood jihad against your project, go ahead and be a jackass. I hope you have deep pockets and a strong tolerance for disappointment.
Not all neighbors and neighborhood associations are reasonable, so you may find yourself going to city hall anyway. Again, be polite and professional to everyone all the time. I’ve seen developers be their own worst enemy by insulting city staff and even city representatives, snatching defeat from the jaws of victory. Be logical. Be truthful. Be nice.
Several years ago the lot behind our house and our neighbor’s house sold. It was a tiny lot on a former alley zoned for light office. Our neighborhood plan expressed a desire for this lot to eventually be zoned some flavor of single family. Unfortunately, when our neighborhood plan was approved by city council, staff miscoded the desired future zoning as mixed use. The owner, someone in the business of buying and selling land, came to us (the neighbors and the neighborhood association) requesting support to change the zoning to mixed use. His desire: to build a single-family home on the lot that his family would live in.
The neighborhood wasn’t too keen on supporting mixed use zoning on this lot facing a paved alleyway. Given the expressed desire to build a single family home for his family on this lot (suspicious given that the lot was bounded by parking lots on two sides and sat across from dumpsters), the neighborhood found a special flavor of single family zoning that would achieve the owner’s stated goal. But that wasn’t good enough. He wanted mixed-use zoning. At this point, the owner lost any credibility with the neighborhood. We found a way for him to do exactly what he said he wanted to do without mixed-use zoning, but that wasn't good enough. What did he really want to do? And since he wasn’t sharing, all we could assume was the worst. After a bitter eight-month battle that went all the way to city hall (twice), the owner lost.
I went to nearly every hearing during that affair and learned some important things. One is that if you hire someone to represent you, go check him out beforehand and attend hearings on your issue to watch him. The guy the owner hired to represent him was terrible. He wasn’t familiar with the process (something I geekily learned by pouring over city codes, bylaws, and pamphlets and attending earlier unrelated hearings to understand the culture and modus operandi of the different boards, commissions, and councils we had to work through). And even worse, when expressing frustration about things not going his way (in large part because he hadn't done his homework), the agent publicly lashed out at city employees as incompetent.
Never ever lash out at city employees, even if you deeply believe the nasty things you believe to be true. City folks are supposed to be helpful and neutral, and they usually are, but they are human just like you and me (it’s true!). How helpful do you think you could be to someone who publicly accuses you of being incompetent you in front of your bosses and the world? The other thing to consider is that staff tends to have close relationships with the various commissioners, board members, and councilfolk they work with. Insulting staff very likely insults the folks voting on your issue.
I could go on and on about this (and realize that the aforementioned will mostly fall on deaf ears for those that most need to hear it because the first law of jackasses is: “If you’re a jackass, you generally don’t realize you’re a jackass.”), but I’ll leave it at that. The bottom line when pursuing a variance or zoning change is to be reasonable, be truthful, be polite, and be professional. If you do this, you place your case in the best possible light, and facts, not emotions, will (hopefully) be the deciding factors.
