The Old, Wrong Way
Here’s the all too common scenario. Citizens learn a development project is proposed for their watershed. It looks like the project may cause harm, but there’s only two weeks before the big hearing. This leaves little time to understand the process, verify impacts or to research options for resolving negative effects. So they do what far too many folks opt for: Hire a lawyer to kill the project. After all, killing the project prevents all impacts. And it seems to work because someone heard that another project was killed a couple of years ago. From the citizen’s perspective, what could be better? Well, nothing except this approach succeeds less than 5% of the time vs. 90% for the better way. The wrong way also burns out volunteers, wastes limited funds, and gives citizens the inaccurate impression that government is in the builders’ pocket.
The Better Way
Rather than immediately hiring a lawyer and setting the adversarial process in motion, citizens first obtain the plans, identify potential impacts, consult with staff and other experts to determine if impacts are likely to occur, and for those judged real seek ways to resolve each impact, preferably in a manner that allows the applicant to get most of what they want. This is the Equitable Solutions approach. It frequently costs very little, inspires citizens to become active participants in watershed management, and leaves citizens feeling positive about how their local government functions. An Equitable Solutions campaign can also use a single poorly designed project to improve environmental protection throughout a county, city or state.
Equitable Solutions is described in detail in How To Win Land Development Issues, a 300-page book free for download at: ceds.org/publications.html. CEDS can also conduct an Equitable Solutions workshop in your area (go to end of this article for details). In the meantime we offer the following Equitable Solutions How-To summary. We’re also a phone call away (410-654-3021) if you have questions.
An Equitable Solution Example
Let’s say you live on a dead-end (cul-de-sac) residential street. A project is proposed to connect to the street increasing traffic volume by ten-fold. Since 60% of all traffic-related childhood fatalities occur on neighborhood streets and increasing traffic volume can lower property value, you and your neighbors are rightly concerned.
Possible Equitable Solutions include:
- The applicant could install speed humps and other traffic calming measures which might make the street safer and quieter even with a modest increase in traffic;
- If the connection is need to provide a second safety access to the proposed project then perhaps it could be gated to restrict use to emergency vehicles and eliminate cut-through traffic; or
- The citizens might support increased density to generate the additional revenue the applicant would need to purchase land for another access point.
Negotiate With The Applicant
The citizens present their Equitable Solutions to the applicant and request a hearing postponement so everyone has sufficient time to seek common ground. Most Equitable Solutions are relatively easy to implement, particularly when contrasted with the alternative – spending two- to three-years in the courts. Our experience has been that half the time the applicant agrees to make the changes and modifies the plans accordingly. If the applicant does not agree to Equitable Solution A and gives a good reason, then the applicant will usually come up with a Plan B. Citizens then consult with their experts to verify that Plan B will resolve their concerns..
Seek Support From Government If Good Faith Negotiations Stall
If citizens are convinced their Equitable Solution(s) are reasonable, yet the applicant refuses to negotiate, then the next step is to request support from their local elected officials, like a County Commissioner, Town Council member, Mayor, or other officials like a planning director. The citizens make it clear they are not trying to kill the project. Instead they believe they’ve found solutions which resolves their concerns yet allows the applicant to get most of what they want. Usually the elected official will encourage the applicant to cooperate. And most of the time this pressure leads to a settlement. Citizens can then win the small percentage of remaining cases by employing Smart Legal Strategies which is described later in this article.
Equitable Solutions, Permit Conditions & Side Agreements
If both citizens and the applicant agree to one or more solutions, then plans are revised accordingly and the solution is made a permit condition, which then makes it enforceable by regulatory agencies. Sometimes though a solution falls outside the legal authority of enforcement agencies. In this case a legally binding side agreement is used to require full implementation of the solution. To minimize citizen expense, the agreement should be drafted by the applicant’s attorney then reviewed by the citizens’ attorney. If notarized and recorded in the land records then the solution should apply to not only the current property owner, but all future owners as well. Frequently we can then get our clients reimbursed by the applicant for the expenses they incurred.
Why Equitable Solutions Are Better Than Litigation
I used the kill the project approach for most of my 40+ years helping citizens deal with development projects. I’ve watched far too many people take out second mortgages and drain college funds to support legal action intended to stop a development proposal. About 10% of the time well-funded efforts would succeed in killing the project at a cost of $20,000 to $100,000. But then the same or a modified project would come back a year or two later without the flaw that nixed the first proposal. By that time citizens were too drained of funds and energy to mount a second challenge. Usually, the best outcome would be a negotiated settlement where the applicant agreed to make changes that resolved the concerns which prompted our clients to oppose the project. Ten years ago I started searching for a better way. This search led to Equitable Solutions where we seek to negotiate changes up front, well before the first hearing takes place. As a result our clients have gone from winning 5% of the time to 90% and at a fraction of the cost!
Concern About Public Image More Powerful Than Litigation
Most of the companies that take a project through the permitting process only work in one or two local jurisdictions (counties, cities, etc.). These companies rely upon the good relationships they have with local officials to gain permits and other approvals. Their image would be tarnished if they were viewed as being insensitive to citizen concerns, particularly when citizens go the extra mile to find a solution that resolves their concerns while also allowing the applicant to achieve their goals. This loss of image is actually a greater threat then litigation. Also, savvy companies know that the favorable exposure coming from a successfully negotiated equitable solution is publicity money cannot buy. This is why the Equitable Solutions approach is so much more effective than the traditional Hire a Lawyer, Kill the Project strategy.
Equitable Solutions Works With Most Projects
We’ve used Equitable Solutions to resolve our clients’ concerns about projects ranging from a four-lot residential subdivision to a $1.2 billion multistate electric transmission line proposal. But the approach can also succeed without a project being built. In the case of the transmission line, Equitable Solutions held up permitting for two years until data became available showing the project was not needed to keep lights on and would actually increase electricity costs. However, this was the exception. So whether the concern is about impacts to traffic, schools, the environment or some other quality of life issue, Equitable Solutions is the best option available to citizens.
Using A Single Project To Win Sweeping Improvements
Most development projects go through the review process with minimal citizen opposition. Those that do generate controversy invariably pose threats most would view as unreasonable. These flawed projects frequently reveal a defect in growth and watershed management that is common throughout a city, county or state. By using the project as a poster-child in an Equitable Solutions campaign you can win improvements throughout the jurisdiction or even statewide. Here’s an example.
In 2009, Maryland adopted an improved approach to stormwater management known as Environmental Site Design. This approach can reduce pollutant loads by 80% to 95% vs. the 30% to 50% reduction achieved with conventional stormwater controls. ESD offers the potential to halt the loss of waterways due to new development and to reverse degradation as existing building and parking lots are redeveloped with highly-effective runoff pollution control measures.
In 2013, a townhouse project was proposed for a site in Baltimore County, MD. Both the developer and County officials insisted the site was unsuited for ESD measures. Further analysis by CEDS showed this was not true. However, negotiations with the applicant and the County were unproductive. CEDS then reviewed more than a dozen projects recently approved by the County and found that only 27% made full use of ESD. Other jurisdictions like Montgomery County, MD were achieving a 95% compliance rate. A letter expressing extreme displeasure with this appalling compliance rate was sent to the County Executive and signed by 15 local, statewide and national groups. The leading regional newspaper then ran a lengthy article on the County’s poor ESD record. As a result, the plans for the townhouse project were revised to show 100% compliance with ESD.
A second review of plans recently approved by Baltimore County indicated that the ESD compliance rate has increased countywide from 27% to 50%. We believe further improvements have been made since then. So, for a fraction of the cost of the Kill The Project approach, a severely flawed project was converted into an ESD model and the use of highly-effective runoff control measures was increased dramatically throughout one of the most populous counties in the nation.
Access To Technical Expertise Challenging
One of the limitations to a search for Equitable Solutions is access to objective technical expertise. Most of the folks with the right expertise are consultants servicing the development industry, which creates three problems for citizens:
- the consultant will likely decline to help citizens;
- they frequently lack the motivation and experience needed to identify all impacts, and
- they are prohibitively expensive.
In more heavily populated areas the local government usually has staff with the requisite expertise. These planners and other professionals can help citizens determine if perceived impacts are likely to occur and, if so, assist in identifying possible Equitable Solutions. In rural areas the local government may rely upon consultants for this expertise. Frequently though these consultants also work for the development industry.
Other sources of expertise include university faculty and nonprofit organizations. We also field several dozen calls a week from folks around the nation with questions about Equitable Solutions and other aspects of strategy. Just give us a call at 410-654-3021. How To Win Land Development Issues provides numerous Equitable Solutions as well.
Smart Legal Strategies
Sometimes there’s just no avoiding a legal contest. This is usually because citizens have failed to find satisfactory equitable solutions, the applicant refuses to negotiate, or a project is so poorly conceived that the impacts cannot be reduced to a reasonable level. If you truly have tried to be reasonable and have gone the extra mile to find Equitable Solutions, then you’ll find decision-makers far more open to killing a project. There are also instances where an advocacy group is seeking a legal precedent that can only be obtained through the courts. Regardless of what gets you into a legal battle, the following Smart Legal Strategies will greatly increase the likelihood of victory. The Chapter references are below are to the relevant portions of How To Win Land Development Issues.
Identify all permits and other approvals relevant to your concerns (Chapter 1);
- Determine the status of each permit-approval with regard to (Chapter 1):
- unresolved issues;
- upcoming comment periods;
- remaining time before approval; and
- appeals process.
- Speak with the officials overseeing each permit-approval to assess their willingness-authority to resolve your concerns (Chapter 38);
Take a look at the actual law to verify what you’re told about limits of authority (Chapter 41);
Research the actual decision-making history of each permit-approval to determine if (Chapter 40):
- it has ever been used to achieve your desired outcome; and if so
- how to best structure your case to achieve that outcome; and
- note the names of the citizens, their attorney and any expert witnesses for further research and possible use in your case.
- Based upon this research identify the permit-approval which offers the best opportunity to resolve your concerns (Chapter 35).
Identify attorneys who have successfully represented folks like you with regard to the most promising permit-approval (Chapter 40).
- Interview each attorney to find the most competent then ask for their minimum fee to enter their appearance, seek a postponement (if needed), and ensure you do not miss comment periods, filing deadlines, or other critical events with regard to the most promising permit-approval; and
By retaining an attorney you demonstrate a commitment to a protracted legal battle. Assuming you selected a permit-approval where you have a reasonable chance of success, this demonstration could provide the leverage required to reach agreement on an Equitable Solution.
If a project is so severely flawed that Equitable Solutions are not available, then the following actions are used to block the issuance of a key permit-approval:
- Expand efforts to mobilize public opinion in support of your position (Chapter 36);
- Seek to further expand public support by reaching out to those who live near other locations where the activity exists or may be proposed (Chapter 36);
- Focus public attention on decision-makers who have the authority to prevent unreasonable harm (Chapter 39);
- Initiate fund-raising among your ever growing number of supporters (Chapter 36); and
- Consider changing the law if existing ordinances fail to give decision-makers the necessary authority to act (Chapter 41).
Most Attorneys Do Not Pursue Smart Legal Strategies Research
One would assume that most attorneys pursue these Smart Legal Strategies with every case. While I’m certain attorneys representing applicants do, citizen attorneys rarely do this research. Instead, they go after the first permit up for a hearing and seek to kill the project there. Unfortunately, contesting this first permit is not always the best use of citizens’ limited resources. I suspect this first permit is pursued for two reasons. First, limited funds which precludes spending a lot of time on research. Second, a lack of extensive experience with land use and environmental law. In most states, there are a dozen or two attorneys who specialize in representing citizens in land use and environmental issues. These attorneys provide citizens with the best chances of success. Many of these attorneys are part of the CEDS network, which now totals 135 nationwide.
Most Attorneys Seem Uncomfortable With Equitable Solutions
You would think that most of the attorneys representing citizens would consistently use Equitable Solutions and Smart Legal Strategies. Unfortunately, this is not the case. Frankly only a small number of the attorneys we’ve worked with across the nation are comfortable with aggressive use of Equitable Solutions prior to a hearing. Most seem to have a strong desire to build a Kill the project case then seek negotiations after losing the first round. This is why we suggest getting in touch with CEDS before hiring an attorney.
It appears that most of the citizens who visit our webpages and download our book pursue Equitable Solutions on their own. Many of these folks succeed in resolving their concerns. A small portion of the remainder hire CEDS to manage a part or all of their campaign. You may wish to consider a middle ground in the form of a workshop. CEDS can hold an introductory half-day workshop in your area for a fee of $750 plus travel expenses. After the half-day workshop ends we usually spend the rest of the day meeting with folks concerned about specific projects. By charging a fee of $25 to $50 per attendee the workshops usually pay for themselves. The workshops can be held Monday through Saturday. To discuss scheduling a workshop for your area contact CEDS president Richard Klein at 410-654-3021 or Rklein@ceds.org.