by Bernard Singleton
(Newport News, Virginia)
Visitor Question: Our city has a 100' encroachment rule for new churches. They measure the furthest edge of the building to the nearest property line. The building must sit 100' or more from the property line.
A building is legally subdivided into 3 parts. Our rental sits in the middle and is 145' from the nearest property line. They will not use our part for the measurement, but use the outer part of the building, which is 97 feet from the property line. They will not allow us to use our part as a house of worship because of this.
What is the advice on proceeding to get permission to use our part as a house of worship?
Editors Reply: This interesting question only demonstrates the nearly endless number of zoning questions that can arise. Even the best run cities frequently create unintended consequences through their zoning ordinances.
Without seeing the exact wording of the zoning ordinance, and all parts of the zoning ordinance, it is hard to say whether the administrative interpretation of the ordinance is correct. If you have not talked directly with someone in the planning department, we suggest that as a next step. Sometimes the clerks at the permit counter are overruled if there is a conversation with a higher level administrator.
Note that we also are unsure of the Newport News meaning of your phrase that the building is "legally subdivided."
If you don't find a city official who will reverse the previous decision, you have just a couple of options.
First, you could sue the city, which might be operating on thin ice here, since some courts have held that First Amendment rights of churches limit the ability of towns and cities to restrict them through zoning. Your chances of success are uncertain, it would take quite a bit of time to prepare the suit and have it decided, and you would incur some substantial legal fees.
Second, you could try to obtain a zoning variance based on your unique facts. Indeed, we think your facts are unusual and that you might well receive a variance. In contrast to a lawsuit, a variance is decided locally, relatively quickly, and relatively inexpensively.
To familiarize yourself with the likely process and theory behind it, we suggest our article on zoning variances
Obviously applying for a variance is a simpler process. If you lose at the board of appeals, board of adjustment, or whatever the board may be called in your city, the only possible appeal is to a court.
So it's really worthwhile to try to have a conversation with someone with more authority at your city hall, if you haven't taken that step. Good luck to you.
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