Finding The Middle Ground to Address Neighboring Development

By Katie O. Berkey, Esq., AICP / Published March 2023

Photo by iStockphoto.com/tiero

You have probably heard of the term “NIMBY,” which is the acronym for “Not in My Back Yard.” It is the attitude of some who oppose new development, fearing that it will adversely affect them in terms of architectural style, adverse impacts to views, housing density, or traffic, for example. However, with some proactive investments of time and resources and the guidance of a qualified land use attorney, there may be opportunities for community association leadership and residents to collaborate with an adjacent developer to identify compromises to instead get to “Yes in My Back Yard,” or “YIMBY.” 

     Community associations and their members must remain vigilant and be prepared to act quickly—time is key to achieving the best possible outcome. Even before the rumor mill starts buzzing with talk of adjacent development proposals, associations would be wise to initiate contact with an adjacent contract purchaser, new owner, or developer to gather details on possible future construction as early as possible. This will help to establish an amicable working relationship and may help to influence the forthcoming development plans. Associations with neighboring properties that are ripe for development would also greatly benefit from engaging a knowledgeable land use attorney to confirm the property’s underlying zoning and future land use classifications, and to advise what the permitted uses and development regulations are currently. A land use attorney can be tasked with routinely reviewing those properties for any changes of ownership, preapplication meetings, or recent filings by the developer that signal a forthcoming change, too. Community association leadership and individual owners should also watch the newspaper and their mailboxes closely for any notices of filings or public hearings pertaining to properties in the vicinity of the association. 

      Once an association knows that nearby construction is being contemplated, it is advisable that the association retain legal counsel, to the extent the community association has not done so already, who can request a complete copy of all submissions, correspondence, and notices of any public hearings involving development of the subject adjacent property; advise on how impactful the proposed development may be for the residents if approved; advise on the local government’s approval process and opportunities for the community association and its individual owners to provide input throughout that process; and advise on the local government’s approval criteria so points of opposition can be tailored in the most persuasive way to the final local government decision-maker. These steps will best position the community association and its members to negotiate with the adjacent developer or, should negotiations not be productive, challenge the proposed development.

      Common areas of concern for community associations that can be discussed with the adjacent developer include, but are not limited to the following: incompatible architectural styles; obstructed views; setbacks and screening; reductions to property values; hours of operation for the proposed use and for construction; noise; outdoor lighting; massing and shadowing, depending on the proposed height and orientation and the surrounding development pattern; traffic congestion and circulation, internal and external to the proposed project; placement of trash receptacles and the treatment of solid waste; stormwater management facilities and ongoing maintenance responsibility of same; flooding potential for adjacent properties; access for construction vehicles and vendors; density; parking; and easements proposed as part of the overall proposed development in relation to the association (e.g., beach access and kayak storage). It is important to be aware that generalized statements of opposition that are not based in fact may be disregarded as not constituting competent, substantial evidence on which a final decision to deny or approve with conditions can be made by the local government. Accordingly, it is advisable that the association and its members document eyewitness observations, relevant facts, and documentary evidence, including photographs, aerials, and maps, to substantiate their concerns in a manner that will be most persuasive to the final decision maker. 

     The community association attorney can also advise on how the association can best mobilize the individual owners to support the association’s efforts to have the proposed project modified, and discuss the value of enlisting the help of one or more technical experts, like a traffic engineer, certified land planner, or civil engineer. A technical expert can critically review the application package and provide written and verbal testimony to support the association’s objectives at later public hearings considering the neighborhood concerns and the local government’s approval criteria. Having a trusted third-party and technical expert like this, in conjunction with your land use attorney, will help the community association to objectively assess the application and its potential impacts, and it may help identify where to start in terms of a possible “middle ground” compromise with the adjacent developer that would satisfy all concerned.

     Having the benefit of as much advanced notice of the proposed development as possible, the association’s attorney can engage with both the local government planning staff assigned to the proposed development and the adjacent developer to discuss the neighborhood’s concerns and identify possible solutions well in advance of any scheduled public hearings on the application. The adjacent developer’s willingness to work with the community association to modify proposed development plans in response to the neighborhood’s concerns is ultimately influenced by several factors, including, but not limited to 

  • How early in the approval process the community association opens a dialogue with the developer, as there is generally more incentive for a developer to collaborate with the neighbors early on. The reason is that with most types of zoning and development approvals the applicant has already committed a substantial amount of money to that proposed development plan by the time the application is made final, and that plan is more strongly held to the further into the approval process the developer gets.
  • How reasonable the community association is in its expectations. For example, is the community association a dead-fast NIMBY unwilling to compromise at all, or a YIMBY, subject to the developer agreeing to certain revisions or conditions as part the proposed development? Said differently, is the community association open to a possible “middle ground”?
  • How expansive the community association’s opposition is in terms of the numbers of residents willing to come out to meetings and hearings, write to decision makers, and write editorials for the local paper.
  • The appearance and demeanor of the community association itself. For example, is the community association seemingly well-organized and well-capitalized with strong and committed leaders? How coordinated are the community association’s leaders and the individual members? These considerations signify to the developer the association’s “staying power” and effectiveness throughout what can be a lengthy approval process and any subsequent litigation. The best way to gather the most leverage is to start with the appearance, and hopefully also the reality, of organization, financial strength, and dedication.

     As you can gather from the above best practices and helpful tips, a community association’s success when faced with adjacent development is very much dependent on how proactive and diligent its leadership is. Beyond a particular property or application, community associations would be well-served by enrolling to receive personal email communications from the county or municipality where the association is located to stay apprised of proposed land development code or comprehensive plan amendments. Such amendments, if approved, may alter the framework within which an adjacent developer will operate for years to come, possibly to the detriment of the association. For example, the county or municipality may be seeking to expand the list of by-right permitted uses (i.e., uses that are allowable without need for special review and approval by a local governing and without an opportunity for public comment), reducing the minimum building setback from the shared property line, or increasing the maximum building height for a particular zoning district, and a property adjacent to the association may hold that zoning designation. Having a “seat at the table” as an active participant in the public hearings related to amending local government land development policies, as compared to only reacting to a proposed development once an application is filed, may help to minimize the potential for improper development long before it is ever formally sought by an adjacent developer and get the association to a place of “YIMBY” with fewer hurdles and expenses.

Katie O. Berkey, AICP

Shareholder and Certified Professional Planner, Becker/h3>

     Katie O. Berkey is a Florida Bar board-certified specialist in city, county, and local government law and a certified professional planner with Becker in Fort Myers, FL. She is the only practicing professional to hold both credentials in Southwest Florida and one of eight statewide. Ms. Berkey represents clients in zoning, land use, and planning matters around the state, including representing clients in local government administrative matters before city and county commissions, councils, and boards; environmental resource and water use permitting; local and state code compliance; and private and government contracting and negotiation. As a certified professional planner, she is qualified to provide expert witness testimony on zoning, land use, and planning issues. Ms. Berkey also represents condominium, cooperative, and homeowners’ association clients with the management and operational aspects of governing their communities, as well as zoning and land use matters. For more information, visit www.beckerlawyers.com.