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PUBLIC HEARINGS IN ZONING MATTERS, OR
WHAT TO DO WHEN YOU GET THAT CERTIFIED LETTER

Imagine that you have lived quietly in your residential subdivision when one day,  your neighbor tells you that he wants to build a 2-story, 1,000 square foot garage in his back yard in order to store two new Monster Trucks.  You’re not too thrilled about the prospect of a gigantic garage taking up most of your neighbor’s yard and blocking your view of the neighborhood park, nor are you looking forward to the roar of Monster Truck engines at all hours!  A few days later, you receive a certified letter in the mail, telling you about a public hearing before the Board of Zoning Appeals concerning your neighbor’s proposed garage.  What does this mean, and what can you do? 

In Indiana, cities, towns and counties are authorized by state law to create zoning ordinances which a) divide land into various zoning districts (for example, residential or business); b) set forth what kinds of uses are and are not permitted in each district; and c) establishes rules governing how tall or how close to the property lines buildings can be constructed and other developmental standards governing the construction of buildings or structures in each district.  A city or town zoning ordinance applies to all land within that particular city or town.  A county zoning ordinance applies only to unincorporated areas within that county.

When someone wants to do something that is not permitted by the zoning ordinance, a variance petition must be filed with the Board of Zoning Appeals, or “BZA”.  In Indiana, the BZA generally has the sole authority to grant use variances – permission to conduct an activity on property that is not ordinarily allowed in the designated zoning district –and developmental standards variances – permission to construct a building or structure that doesn’t comply with the size, height, area or other requirements of the zoning district (although in certain cases approval of the legislative body may also be required).  Before granting or denying a variance, state law requires that the BZA must hold a public hearing where interested parties and the general public can get information on what is being requested and can provide comments and information to the BZA about the impact of the requested variance and whether it should or should not be granted. 

Indiana law provides that at least 10 days before the hearing date, notice of the public hearing must be published in the newspaper and given in writing to each “interested person” that would be affected by the requested variance.  However, each BZA is permitted to establish its own rules as to who constitutes an “interested person” and how notice is to be given to them.  Many times, an “interested person” is defined as someone who owns property either adjacent to, or within a certain distance (e.g., 300 feet) of, the property for which the variance is requested, and notice is required to be given by certified mail; but these rules can vary.  Also, some places require the applicant to post a sign on the property advertising the public hearing and some don’t.  The local rules of the BZA in the city, town or county in question will define who is an “interested person” in that area, how notice is to be given, and whether other postings or notice is required. 

Typically, at the BZA hearing, the applicant requesting the variance will first be given an opportunity to explain what variance is being requested and why.  Then, the BZA will allow members of the audience to ask questions and/or provide comments.  Often, those who are in favor of the variance will be permitted to speak first, followed by those who are against the variance.  When this process is completed, the BZA will begin the decision-making process; and the public, typically, will not be permitted to make further comment.  Sometimes, a BZA will have rules that:  require those wishing to speak to put their name on a sign-up sheet before the public hearing begins; limit the amount of time that an audience member may provide comments; permit the submission of letters or written comments to the BZA in advance of the public hearing (which may or may not be read during the public hearing); and the like.  Therefore, it is very important to check the local BZA’s rules as to what procedures apply to public hearings in that particular city, town or county.

If you receive written notice of a public hearing concerning a variance request, it is often a good first step to contact the Building Department, (some local governments might have a Planning or Zoning Department) of your city, town or county to find out about the public hearing process, what the BZA’s rules are if you want to speak at the hearing, whether you can submit written comments and if so, to whom and when they should be submitted, and whether you can offer pictures or documents to help illustrate your points.  You can also find out if a copy of the variance application is available to be inspected in advance of the public hearing; and if so, where you can go to take a look at it or get a copy of it. 

Please note that this post is only a brief summary of the public hearing process.  It does not constitute legal advice nor does it establish an attorney/client relationship.  Should you have specific questions regarding the above, please contact Laura Frost or R. Lawrence Steele at Hodges and Davis.

Hodges and Davis, P.C. - January 2015