A Better Way To Resolve Land Use & Environmental Disputes
Community & Environmental Defense Services (CEDS) has refined a new approach that triples citizen success in resolving concerns about land use changes and other projects impacting a neighborhood or the environment. We call this approach Equitable Solutions. This webpage will get you started in applying Equitable Solutions to your case. But if you're facing an imminent threat and time is critical then please feel free to request an emergency strategy analysis by calling CEDS at 1-800-773-4571 (toll-free nationwide).
An Equitable Solution is one which fully resolves citizen concerns while allowing the applicant to get most of what they want. Most savvy applicants will quickly adopt the solution, assuming it truly is equitable. Those that don't face the prospect of being viewed as unreasonable by the press, elected officials, and the public at large. This consequence has proven far more effective in allowing citizens to win these disputes when compared to the traditional threat of legal action alone.
While Equitable Solutions does not work with all issues, it does with most. For those few projects so badly planned that impacts cannot be resolved, the CEDS Smart Legal Strategies approach makes it ten times more likely the project will not be approved.
For land trusts, nonprofits, and other organizations with a long term interest in responsible growth and environmental management, Equitable Solutions also:
expands the base of public (voter) support for responsible growth management;
increases membership and the number of active volunteers supporting grass-roots groups; and
leads to more citizens becoming highly-effective leaders at the grass-roots level and in appointed or elected positions.
For elected officials and other decision-makers, Equitable Solutions prevents those absurd situations where one is forced to chose between that which is popular and that which is not. Instead, officials are asked to support a solution which safeguards their constituents and is fair to the applicant.
Finally, for development companies and other applicants, Equitable Solutions offers a way to identify and correct those aspects of a project that generate public opposition. The end result is a better project that proceeds more swiftly through the review and permitting process while leaving a very positive impression with decision-makers.
An Equitable Solution is that which resolves concerns about a project while allowing the applicant to achieve their goals. Following are a few real-life examples:
Viewshed: Those living next to a 3-acre forest were told it would never be developed when they bought their homes. But policy shifts over time eventually allow the property to be developed. After researching all of their strategy options, including stopping this by-right project, the neighbors negotiate a 100-foot, densely landscaped buffer rather then the required 50-foot buffer. The enhanced buffer preserves their forest view. In exchange the neighbors testify in support of the project, which bolsters the applicant's image in ways that pays them back many times over with this and future projects.
Stormwater: Downstream property owners are concerned a headwater housing project will degrade fishing, other recreation and lower property value. They learn of innovative Best Management Practices which take up less space and are far more effective in protecting water quality. They show the applicant how the BMPs can actually reduce development costs and even allow another house to be built. The citizens agree to urge local elected officials to permit the use the innovative BMPs. If all goes well, the project brings about a net reduction in pollution loads to the waterway.
Traffic: Those living on a small court learn of a proposal to extend the court as part of a large residential development project. As above, they explore all of their options including an attempt to kill the project. But they learn of another possible access point which could serve as the main entry into the residential project. The developer still needs a second means of access for emergency vehicles. The residents learn that a gate could be placed across the extended court so fire, ambulance and police can have access, but no one else. The applicant realizes this option can actually reduce development costs and avoid a lengthy legal battle. The court residents and applicant jointly go before the decision-making body and request approval of the gate option. Approval is granted.
Again, the three preceding examples are all from real life situations. In fact, CEDS provided the expertise needed to identify and negotiate the adoption of all three. In each example, there were a dozen or more potential Equitable Solutions. Some may have been nearly as effective as that selected while others only appeared to work. Identifying these optimum solutions can be the most challenging part of this approach. In the next section we'll introduce you to the How To of Equitable Solutions.
Following is a brief, simplified description of the four actions which compose the CEDS Equitable Solutions approach. The first three are:
Finding Equitable Solutions;
Negotiation Before Litigation: and
Winning Through Public Opinion.
The fourth approach, Smart Legal Strategies, is initiated when:
you fail to find an Equitable Solution that fully resolves your concerns; or
applicant negotiations reach an impasse.
For the most part, the actual Equitable Solution is technical. On rare occasions, a nontechnical solution is available, such as purchasing a proposed development site. But, again, this is the rare exception.
To find Equitable Solutions you need access to professionals with the right expertise: civil engineering, landscape architecture, urban planning, etc. But citizens face three major problems in gaining access to these experts:
For the most part they make their living servicing the development industry and won't take your call;
If they do agree to help their fees are usually more then citizens can afford; and
There's a tendency to recommend solutions which the applicant likes, but do not fully resolve impacts, particularly over a long period of time.
CEDS has taken a number of steps to make life easier for individuals and associations seeking Equitable Solutions,
First, to help you determine how a project may impact your quality of life we prepared a four-page:
Second, we wrote a 300-page book called How To Win Land Development Issues. This book and many other CEDS documents are available free for download on our publications webpage. Chapter 2 describes how to research Equitable Solutions in general. Chapters 3 to 26 address in detail the 24 most common impacts associated with development. Each chapter expands on the checklist and suggests common corrective measures.
Third, if you are seeking to preserve your home, neighborhood or the environment from impacts then CEDS will review project plans free of charge. During this quick initial review we'll identify potential impacts and Equitable Solutions. We'll then share the results with you and your allies via conference call. Again, there's no charge for this initial review.
Fourth, if you have a question we'd be delighted to answer it free by phone: 1-800-773-4571 (toll-free nationwide). E-mails don't work so well for us since it tends to take much more time to get your core concerns.
Earlier we cited three issues with gaining access to professional expertise. Allow us to now qualify this caution. If during the initial negotiation process described below you sense the applicant really wants to find an Equitable Solution, then ask them to have their consultants recommend one or more options. But before accepting an option check it out first by giving CEDS a call. We'll be delighted to give your our thoughts on how well the solution will work and what you can do to verify effectiveness.
Additionally, larger jurisdictions have full-time staff including engineers, planners and other professionals. These staff can be an extremely valuable source of Equitable Solutions. However, in more rural areas consulting firms may provide functions, like plan review, normally performed by staff in urban jurisdictions. These firms may also provide consulting services to the development industry which could create a conflict of interest when it comes to advising citizens on possible Equitable Solutions.
CEDS research indicates that about 25% of citizens resolve their development-related concerns by negotiating with the applicant. These citizens never hire a lawyer or other professionals. Again, they simply meet face-to-face with the applicant to find a solution both can live with.
We cannot urge you strongly enough to try negotiation before hiring an attorney. About 40% of our negotiations with applicants are successful. We win another 10% through regulatory agency negotiations, while discussions with elected officials and agency directors allows another 30% of our clients to win adoption of their Equitable Solution.
Applicant Negotiations: We assume the advice provided in the preceding section of this webpage has allowed you to find one or more potential Equitable Solutions. If it has then contact the applicant. Make it clear your goal is to find an Equitable Solution. Present the potential Solution(s) you've identified and request an opportunity to discuss each in person.
During the meeting listen very carefully to any objections the applicant has to your proposed solution. Resist the temptation to interpret these as "I don't want to negotiate." Instead, what you're probably hearing are initial concerns that may eventually be resolved. There's also a good chance the applicant will propose other Equitable Solutions that will be as or more effective then yours but are easier for the applicant to adopt. It shouldn't matter how an impact is resolved as long as the solution is effective over the life of the project.
If you reach agreement then ask the applicant to modify project plans accordingly. Also ask that they request that regulatory agencies make the Equitable Solution(s) permit conditions. This increases the likelihood of a Solution being fully implemented then maintained over the coming decades. Further advice on negotiating with the applicant can be found in Chapter 37 of our free book.
Regulatory Agency Negotiations: If you fail to reach agreement with the applicant, yet still believe your Equitable Solution is fair and reasonable, then seek the support of agency staff overseeing those permit-approvals most relevant to your concerns. Also, you should seek to preserve your legal rights by beginning the initial actions presented on the CEDS Smart Legal Strategies webpage.
Most government agencies are used to negotiating with applicants and citizens to resolve issues. You'll find staff far more willing to work with you if you make it clear that your goal is not to Kill The Project but to resolve specific concerns through an Equitable Solution.
As with the applicant, forward your potential Solution(s) and request an opportunity to discuss each in person with the staff person reviewing the project. If they feel the solution makes sense and they're willing to make it a permit condition then great. However, its usually not that simple. Frequently a solution will need to be adjusted so it fits within the limits of what the agency can require. As with applicant negotiations stay very open when working with staff. After all, your goal is to resolve an impact and not to win the adoption of your pet solution. Further advice on working with staff can be found in Chapter 38.
If staff agrees your concerns are genuine and your solution makes sense, but say they lack the authority to require it, then try negotiating with your elected representatives or other higher decision-makers.
Elected Officials & Other Decision-Makers: It never ceases to amaze us how often elected officials and agency heads come up with creative ways of resolving a problem. This is why meeting with both your elected representatives and agency directors is critical to success. In fact, these are probably the most important discussions.
Well, in your conversations with the applicant and staff you've been advocating Equitable Solutions rather then stopping the project. You should find that this approach has greatly increased the willingness of both elected and appointed officials to work with you. And between scrutiny by the applicant and staff the solution should be thoroughly vetted, at least from a technical perspective. In other words, you should now be confident it will work.
You're probably approaching the officials because the applicant has refused to implement the solution and staff feel they lack the authority to require it.
If the officials agree that they do lack the authority to require your Equitable Solution then ask if they would be willing to:
talk with the applicant about implementing the solution voluntarily;
change the law to provide the necessary authority; or
work with staff experts and others to come up with other solutions which may be equally effective and fall within their legal authority.
However, there's a very good chance that within a week or so of meeting with the elected officials or agency heads the applicant or staff will resume negotiations, culminating in an agreement to adopt the Equitable Solution. If this doesn't happen then its time to employ Winning Through Public Opinion.
If you genuinely believe that a truly Equitable Solution exists to resolve your concerns that is also fair to the applicant, then you are in an excellent position to win through the court of public opinion, which is far less expensive then a court of law.
Most development companies, their consultants, attorneys, and others practice in a relatively small area (one or two counties or cities). Their success hinges to a large degree on how they are perceived by elected officials, other decision-makers, review staff, and the public at-large. If you have proposed a reasonable Equitable Solution yet they refuse to adopt the solution, then their public image diminishes, particularly if the impact to you, your neighbors or the environment is obvious and excessive.
The public opinion effort should focus on a single decision-maker or decision-making body with the authority to require implementation of your Equitable Solution. But be certain to craft a positive message, such as: We know our elected oifficials want to do the right thing. Let's provide the public support they need to do their job.
Initially ask those who live near the site to join with you in urging the decision-maker to act. Expand the effort by reaching out to others who may be indirectly effected. It is likely others in your town or county are affected by the same impact but at other sites. You should ask these folks to contact the decision-maker in hopes of safeguarding both your neighborhood and theirs.
These are but a few of many ways for convincing decision-makers that the future holds only one outcome - an ever increasing number of people who are wondering why they refuse to solve an obvious problem. Further advice on winning through public opinion can be found in Chapter 36.Smart Legal Strategies
Each year countless individuals, homeowner associations, and environmental groups initiate legal action to protect their homes, neighborhoods, and natural areas. Yet CEDS research shows that most get very little for their time and money. Fortunately, our research has also revealed a better way, which we call Smart Legal Strategies. When combined with our Equitable Solutions approach, Smart Legal Strategies triple citizen and association success at a fraction of the cost.
Each development project may require a dozen or more permits or other approvals (rezoning, special exception, conditional use permit, waiver, variance, wetland permit, etc.). Smart Legal Strategies consist of a series of actions designed to identify THE permit-approval which offers the best opportunity to:
Again, the first step in Smart Legal Strategies is to identify all required approvals then research each to determine which provides the best opportunity for success. While this may seem like common sense few newcomers to this business and far too many attorneys fail to perform this critical research. Instead, limited resources are exhausted opposing the first permit-approval which comes up for a hearing. Detailed advice on how to conduct permit research is provided on our Smart Legal Strategies webpage.
We urge you NOT to hire an attorney before completing the research.
Because you won't know what type of attorney you need - land use, zoning, environmental, etc. - until you've done this research. More importantly, you won't have the background needed to interview prospective attorneys (we urge you to screen at least three) to learn who will provide the best representation and how to keep legal fees at a minimum without lowering the probability of success.
For further detail visit our Smart Legal Strategies webpage.
First, CEDS offers several no-cost forms of assistance to citizens seeking to protect a neighborhood or the environment from development impacts.
If you have a copy of project plans then mail them to us. We'll do a quick, initial review of the plans to identify both potential impacts and possible equitable solutions.
We can conduct a strategy session by phone with you and your allies to discuss the project and how to employ the Equitable Solutions approach to resolve your concerns.
We would be delighted to try and answer specific questions free of charge by phone, provided we don't need to do any research.
Again, the three preceding forms of assistance is offered free to those seeking to preserve a neighborhood or the environment. Just give us a call at 1-800-773-4571 or e-mail us at: Help@ceds.org. Besides our 300-page book you'll also find other free publications and information on our website: ceds.org
About two-thirds of the citizens we help take our free assistance and run with the campaign on their own. The other third hire us to manage a portion or all of their campaign. This is how we make the funds needed to stay in business. So if you feel that winning a development battle requires more time then you can spare, give us a call to discuss the cost of having CEDS take over the more difficult or time-consuming aspects of the campaign.
If you're uncertain how to get a campaign started then consider retaining CEDS to perform an Initial Strategy Analysis. For further detail visit: ceds.org/strategy.html.
Over the past ten years CEDS has conducted intensive research across the country on what does and doesn't work for citizens seeking to resolve concerns about proposed development projects. The Equitable Solution approach evolved from the following major findings:
The preceding research findings plus more then 30 years of helping citizens nationwide with land use and environmental issues, allowed CEDS to come up with a new approach based upon Equitable Solutions. We know from our own experience that this approach will:
Triple the success rate of citizens seeking to resolve specific concerns through Equitable Solutions;
Increase the likelihood of stopping a truly bad development project by ten-fold;
Correct defects in existing growth-management programs and laws so future projects are less likely to cause the same impacts;
Expand the membership and active volunteer ranks of the citizen group leading the effort to protect a neighborhood or the environment from a development proposal;
Increase the number of voters who are knowledgeable about and willing to provide the support needed to improve growth-management and environmental-protection programs;
Prompt more good people to run for seats on planning commissions, school boards, town-county councils, board of supervisors, etc.; and
The Equitable Solutions approach achieves all this at a fraction of the cost (in dollars, stress, and hours) when compared to the conventional Hire a lawyer to stop the project approach.
Following are a few examples of the victories possible with Equitable Solutions. CEDS was an active participant in all of these examples.
Smart Growth: Everyone has heard the phrase Smart Growth. But you may not know that Smart Growth was a result of Equitable Solutions & Smart Legal Strategies in action. In the mid-1990s, the Sierra Club led a fight to save Chapman's Forest - 2,000 acres of highly-sensitive forest near Washington, D.C. Chapman's Forest became a focal point - a poster child - for the many ills of dumb growth. The campaign generated so much public support that it allowed former Maryland Governor Glendening to preserve all 2,000 acres and he instituted Smart Growth as state policy and law. Of course, Smart Growth is now a cornerstone of responsible growth management nationally. And it all started because of the highly-successful execution of Equitable Solutions at Chapman's Forest.
Through-Traffic Nixed: Southfork Court is a quiet, dead-end street with 14 townhomes. The Court is more then a place where residents park their cars. Children play in the Court. An annual picnic and other gatherings are held on the Court. But all this would've changed with plans to extend the Court into a through-road to serve a proposed development project. This action would have increased traffic on the Court by 800%. County policy required a second means of emergency vehicle access into the proposed development. An extension of Southfork Court was the only way of meeting this requirement. CEDS research of past decisions revealed an equitable solution. After extensive negotiations with the applicant and County officials, they agreed to extend the Court and place a gate across it which only emergency personnel could open. This solution provided the second means of emergency access without any increase in normal traffic volume, thus preserving the tranquility of Southfork Court.
Visual Impact Resolved: Rural residents were deeply troubled by a proposal to build new houses within view of their homes. They feared the loss of a natural view, light trespass from street lamps, and glare from the floodlights new homeowners tend to plaster all over their houses. After our clients threatened to get the site downzoned (a real possibility) the applicant agreed to forego the street lights, place a covenant in the homeowners association bylaws restricting outside lighting, and to provide the additional landscaping needed to preserve the view. These points were set forth in a written agreement which the applicant and the rural residents signed. The agreement also required making it a binding condition of County development approvals. This makes government responsible for enforcement - not the rural residents. The applicant also reimbursed the rural residents for the $2,000 they paid CEDS to win this victory.
$500,000 in Aquatic Resource Protection: A massive shopping center was proposed for a site at the head of a highly sensitive river. Area citizens treasured the river but were not necessarily opposed to the shopping center. However, they were very concerned about the thousands of gallons of contaminated runoff which would flow from the shopping center into the river. CEDS helped local activists demonstrate widespread community support for preserving the river and organized a legal team which convinced the applicant they were in for a long fight. The applicant then offered to put in some additional runoff pollution controls, costing about $100,000. We eventually got them to agree to what was really needed - $500,000 in aquatic resource protection measures.
Globally Rare Wetland Saved: Wade's Savanna is one of seven Central Coastal Plain Basin Swamps in the world. A mining company had proposed excavating a 70-foot deep pit covering 140-acres next to Wade's Savanna. The resulting extraction of sand and gravel would have dewatered (and killed) Wade's Savanna. After partial execution of a strategy developed by CEDS the applicant became convinced that they stood little chance of getting mining permits. They then sold the site below market value to a preservation organization.
Flawed Infill Stopped: Suburban residents were concerned by a proposal to build five houses on lots much smaller then theirs. The houses would have been unduly close and posed other compatibility issues. CEDS discovered the applicant needed to run a sewerline through the property owned by the residents. The residents are now using this leverage to negotiate resolution of each concern with the applicant.
Wastewater Treatment Improved: The health of 161 families was threatened by a problem-prone form of wastewater treatment known as drip-irrigation. Though this case was initially viewed as hopeless, CEDS used both Equitable Solutions and Smart Legal Strategies to win much greater protection for the families while also improving State permitting and enforcement of these facilities. For further detail visit: Equitable Solutions Improves Wastewater Treatment & Protects Threatened Neighborhood.
Following are some of the many citizen groups, nonprofit organizations, and government agencies we've helped across the nation: Apple Greene Civic Association; Baltimore County, MD; Blue Ridge Coalition - Floyd County Chapter; Chesapeake Bay Foundation; Citizens For A Better Flathead; Citizens to Protect Brice Prairie; Coalition Against Surface Mining; Echo Hill Outdoor School; Friends of Beaver Lake; Mannington Preservation Citizens Committee; Piedmont Environmental Council; City of Pocomoke, MD; Potomac River Association; Saddlebrook Estates Homeowners Association; Shawnee Preservation Society; Sierra Club; Southern Environmental Law Center; State of Hawaii Office of Planning; Talbot River Protection Association; The Nature Conservancy; Valleys Planning Council; Vineyard Conservation Society; West Virginia Highlands Conservancy; Woodland Hills Homeowners Association; and hundreds of other groups and individual citizens.
None scheduled presently, but contact us at 1-800-773-4571 or e-mail us at: Help@ceds.org to discuss scheduling a workshop for your area.