Variance for Fence Height or Freeway Sound Wall?

October 1, 2022 2:05 AM

Amazon recently built a facility in my town that has drastically increased road traffic near my house. I want to build a wall to block the noise, and I'll need a height variance from the city to make it worthwhile. The building code specifically notes that "Any standard cited in an application for “reasonable accommodation” or “reasonable modification” under the federal Fair Housing Act Amendments of 1998" as a reason a variance would be allowed, which would apply to me. Do I need a lawyer?

I have extremely well documented PTSD and treatment resistant anxiety, both of which are made worse by noise and truck sounds. I know I'll need a contractor to build the wall and submit the paperwork, do I also need a lawyer? I am thinking a lawyer would be able to write something up that clearly and concisely makes the case for why a variance is necessary. What kind of lawyer do I want? How can I find such a person? This is in Albuquerque, New Mexico.

In my ideal world, they would just put up sound wall along the freeway and I wouldn't have to build something on my property. There is a sound wall along the entire freeway except for the area near my house. Do you think I could get them to build that section? Would I be able to use the same HUD Section 504 to push my case? It says

"Under Section 504, the requirement to make reasonable accommodations applies to any changes that may be necessary to provide equal opportunity to participate in any federally-assisted program or activity. This includes a change, adaptation or modification to a policy, program, service, facility, or workplace which will allow a qualified person with a disability to participate fully in a program, take advantage of a service, live in housing, or perform a job. Reasonable accommodations also include any structural changes that may be necessary. Reasonable accommodations may include changes which may be necessary in order for the person with a disability to use and enjoy a dwelling, including public and common use spaces, or participate in the federally-assisted program or activity."

And specifies that "Under Section 504 and the ADA, public housing agencies, other federally-assisted housing providers, and state or local government entities are required to provide and pay for structural modifications as reasonable accommodations/modifications."

I think it's a stretch, but I don't know where to start.

The situation has gotten really bad over the last couple months and I am barely able to sleep at night. We've lived here for 20 years and the truck traffic has never been this bad, and it's worse overnight than during the day. I really just want to build a sound wall, and it sounds like according to the local laws I should be allowed to if I submit the right paperwork. Who do I ask to help me file the paperwork correctly?

posted by anonymous to Law & Government (9 answers total)

I think talking to a lawyer is a good idea because how this is handled is a local thing. Where I live, building code variances are handled by a board that rejects them all - if I were going to do something like you propose, I would need extensive support from a lawyer and maybe a lawsuit. But where you live it may work differently.

I'll also add that there may be other relevant laws. You need a lawyer to know what applies.

You can get information by talking to people. You should definitely do this before submitting any paperwork, so that you have the strongest case the first time. There should be an office that handles plan submissions, they can usually help you with the formal requirements. There will also be some board that handles variance requests. You want to ask them some specific questions: What fraction of variance requests are granted? What factors are considered when a variance request is a disability accommodation? What fraction of variance requests related to a disability are approved? What documentation of a disability is important to provide?

You find a lawyer by searching for disability law and your state/city. I would start here: Disability Rights New Mexico. Be ready to talk to a lot of people, you'll want to talk to 4 or 5 lawyers and other conversations to get referrals to people. But somewhere out there is a person with knowledge of disability and housing who can help you.
posted by medusa at 6:10 AM on October 1, 2022 [2 favorites]

Like the answer just above says, this is a very local thing and you will want to talk to people with specific ABQ variance experience. If you hire someone (like a lawyer or a planning consultant), you want someone who has a practice based on this, who knows all the people in the room, etc.

That said, I have dealt with this twice, both over fence issues. One time I went in to the planning office to find out about variance procedures for fence height, and the planners I met with suggested a work-around that was (supposedly) legal and avoided needing a variance. (Their suggestion was to build an earthen berm, and then build a standard height fence on top of the berm. I am not 100% sure this was really a legit solution, but they proposed it and no one complained when I did it, so...) The point of this story is that it is worth having an informational chat with the planning office in case they can offer an easy solution of some kind.

Another time we were able to DIY the permissions, but it took a lot of calls and emails and I think it only worked because my partner got on the phone and made a very emotional appeal -- until that point, they had been telling me that they were unlikely to approve. In hindsight we just got lucky and should have used a consultant.
posted by Dip Flash at 7:32 AM on October 1, 2022

I bet your neighbours hate the noise too, so I would involve them at some point - petitions and local politicians can be powerful. And research if any other towns have convinced Amazon to up their remediation efforts in other areas.
posted by nouvelle-personne at 8:18 AM on October 1, 2022 [3 favorites]

If you have a fair housing organization in your area - google seems to indicate you do - I would start there, at least as it pertains to using the Fair Housing Act's disability-related rights. They'll have lawyers on staff who can advise if this is a fruitful line of approach, or if you're better off organizing with neighbors to approach your political reps as a group.

Good luck. It's a righteous and just thing to force the city to mitigate the effect of traffic noise, especially overnight noise as a result of a major new industry.
posted by minervous at 10:48 AM on October 1, 2022

It would be really great if you could get your neighborhood and political representatives on board to continue the sound wall along the highway. Let your state spend the money.

I'm worried that if you build an expensive sound wall of your own it's not going to make much difference. Sound goes over and around sound walls and you may not notice an appreciable difference unless you're right next to the wall.
posted by oneirodynia at 11:32 AM on October 1, 2022 [4 favorites]

As an alternative (or additive approach), you may wish to install noise reduction windows (particularly in the bedroom). Noise-reduction windows can block up to 90 to 95 percent of sound.
posted by oceano at 11:41 AM on October 1, 2022 [4 favorites]

If you are near a federal highway, contact your Congressperson about it. Remember, however, that state or federal projects often are "in the pipeline" for a long time, so for immediate relief it might be necessary to implement something yourself with the help of a contractor.
posted by TimHare at 3:46 PM on October 1, 2022

Depending on the nature of the sound where you live you may not need a height variance - traffic noise varies a lot depending on local conditions, and sometimes much of the problematic sound originates at lower levels.

Look for Fine Home building magazine, 2002, issue 145 - A quiet house on a noisy street. About a house at a very busy intersection in Albuquerque. The architect designed a block wall where each block was placed as randomly as possible, and the top was all random (up and down and irregular). There were also some window changes - this was a house deliberately built in a noisy location so there was more control over build from the start, but there are still many useful ideas in the article

This was complimented by a plant selection of hard leaved, spiky plants (always use evergreen plants) and rough ground. For some sites this is exactly the approach I would take.
posted by unearthed at 7:52 PM on October 1, 2022 [2 favorites]

Amazon caused the problem, and Amazon should be the party to fix it. Why should you be forced to spend thousands of dollars on a wall, lawyers, contractors, etc? I doubt this is your issue alone, although your documented disabilities might cause the noise to be more injurious to you. It's one thing to get permission to build a wall, but that might not completely solve the issue, since sound travels in waves and can travel around and over structures like walls - that's why when sound walls are built along roads they are continuous. A continuous wall would be more effective and help the entire neighborhood. It would also preserve housing values - who wants to buy a house where there is so much noise?

Have you talked to your local elected officials about the issue? Surely someone there is aware of this new Amazon center and needs to hear from constituents that there is a substantial noise issue. If you can have a group of neighbors join you, that would have more impact. Is there a neighbors association? That might be a place to start and they will have a mechanism to alert many members about the issue thus giving you a large number of residents who will join you in battling the noise.

If you have difficulty getting traction, local press might be helpful is putting pressure on both politicians and Amazon. Good luck. Noise is really tough to live with.
posted by citygirl at 8:56 PM on October 1, 2022