Smart Legal Strategies
- Identify all potential impacts of a development proposal or some other project threatening a community or the environment using the CEDS Impact Checklist and the issue resources on our many other webpages,
- For projects that can be modified to fully resolve impacts, look for Equitable Solutions to achieve this goal then win adoption of the solution by negotiating with the applicant or regulatory agencies,
- Use public opinion and the desire of most applicants to maintain a positive image as a source of negotiating leverage,
- Use demonstrations of public support to provide elected officials and other decision-makers with the backing needed to require full implementation of the Equitable Solution, and
- Ensure that the Equitable Solution is fully implemented and maintained through permit conditions, side-agreements, and other safeguards.
- For fatally-flawed projects that cannot be changed to resolve excessive harm:
- Identify all permits-approvals that must be granted before the project can be built,
- Research decision-making history with regard to each permit-approval,
- From this research determine which permit-approval provides the best opportunity to defeat the fatally-flawed project,
- Search for attorneys that have a good reputation representing citizens and have expertise relevant to the key permit-approval,
- Help citizens raise the funds needed to retain the attorney along with the expert witness(s) needed to win, then
- Launch a campaign parallel to the legal strategy demonstrating widespread public concern so elected officials and other decision-makers will have the public support needed to deny the key permit-approval.
- shopping centers, housing projects and other land development proposals,
- transmission lines, substations, etc.,
- mining operations,
- stormwater and construction site pollution,
- wastewater plants and other pollution sources,
- noise, odors, other nuisances, and
- many, many more.
What Are Smart Legal Strategies?Smart Legal Strategies are initiated concurrently with the following Equitable Solution steps:
- Verify that your concerns are valid;
- Seek to identify Equitable Solutions that fully resolve your concerns while allowing those responsible for the problem activity to achieve their goals;
- Negotiate adoption of the Equitable Solution with the responsible party, regulatory staff, elected officials and other decision-makers;
- Ensure that the Equitable Solution will be fully implemented then maintained through permit conditions, side-agreements, and other safeguards;
- Use public opinion and the desire of most responsible parties to maintain a positive image as a source of negotiating leverage; and
- Use demonstrations of public support to provide elected officials and other decision-makers with the backing needed to require full implementation of the Equitable Solution.
- Identify all permits and other approvals relevant to your concerns,
- Determine the status of each permit-approval with regard to:
- 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,
- Take a look at the actual law to verify what you’re told about limits of authority,
- Research the actual decision-making history of each permit-approval to determine if:
- 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.
- Identify attorneys who have successfully represented folks like you with regard to the most promising permit-approval.
- 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.
- 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,
- Seek to further expand public support by reaching out to those who live near other locations where the activity exists or may be proposed,
- Focus public attention on decision-makers who have the authority to prevent unreasonable harm,
- Initiate fund-raising among your ever growing number of supporters, and
- Consider changing the law if existing ordinances fail to give decision-makers the necessary authority to act.
How Smart Legal Strategies Differ from the Conventional Approach?One would think that the preceding Smart Legal Strategy actions are routinely pursued. While this is true for major cases launched by well-funded interests, it is not true for the vast majority of cases where a few individuals with limited resources are scrambling to protect their homes and environment. To understand why Smart Legal Strategies are so effective it helps to contrast it with the conventional approach applied to the vast majority of land use and environmental disputes. The conventional approach typically unfolds like this:
- A neighbor learns that in two weeks the Planning Commission will hold a hearing on a proposed development project,
- Nearby residents have sketchy information about the project and naturally begin picturing the worse,
- They scramble to hire the first lawyer who will take their case and direct the attorney to pursue the one goal that resolves all impacts – Kill The Project – unaware that this goal is rarely achieved,
- Since most experienced land use or environmental attorneys will not represent opponents, the lawyer hired by the citizens probably has minimal experience,
- Lack of experience combined with a paucity of funds prevents the attorney from thoroughly researching other permits-approvals, decision-making history, and staff positions and this research is critical to identifying the permit-approval giving the best chance of success,
- Citizens exhaust limited resources on the hearing only to learn that the Planning Commission makes a recommendation, but the local Board of Appeals is the final decision-maker, then
- With very little funds left to hire expert witnesses or pursue other actions essential to presenting a strong case before the Board of Appeals, the project is approved. Since the citizens sought to simply Kill The Project, they didn’t propose any Equitable Solutions which could have become conditions of approval and thereby reduced project impacts.
Finding the Best Attorney for Your CaseThe best attorney is one who:
- Has extensive experience with the area of law at issue in your case, and
- Has successfully represented citizens (protestants) in similar cases.
- Does the attorney freely answer your questions?
- Do the answers make sense?
- Have they provided a clear description of the work they need to perform to determine if you have a reasonable chance of winning?
Good Attorneys By StateCEDS has compiled a database of attorneys practicing throughout the U.S. who help citizens with land use or environmental issues. Most of these attorneys must charge for their services. A number of the attorneys have asked that we not publish their contact information. Instead, they prefer that folks contact CEDS first. After learning what type of attorney you need, CEDS can then see if an attorney with the right expertise is listed for your area. To initiate the referral process, contact us at 410-654-3021 or Help@ceds.org. If you cannot afford an attorney then we can help you determine if one of the 140 university law clinics in the U.S. may take your case. It is also possible that one of the 850 pro bono legal aid agencies may have interest in your case. Finally, we can help you tap local sources of funds using methods such as those described at: Funding the Good Fight. Following is the number of attorneys listed in the CEDS Good Attorneys database for each state.
|Illinois||5||New Mexico||1||Washington, D.C.||13|
|Indiana||2||New York||8||West Virginia||5|
Appeals: When Does it Makes Sense to Contest an Unfavorable Decision?If your goal is to get the courts to overturn a bad law or set a legal precedent, then an appeal makes complete sense. But for most other cases CEDS research indicates its quite uncommon for citizens to succeed in reversing a decision to issue a permit or other approval. Instead a negotiated settlement is the most likely positive outcome. The reason for this lack of success is a principle known as judicial deference. Under this principle courts tend to defer to agencies, planning commissions, and a Board of Appeals on technical-factual matters. However, if you feel a permit or approval was issued in violation of applicable laws, then the likelihood of a reversal increases. But the odds are still against you. How bad are the odds? Well, there don’t appear to be statistics on how often land use or environmental permit decisions are reversed, but they do exist for other areas of the law. For example, about 2% to 5% of criminal convictions are reversed when appealed to higher courts. We suspect though that judges are more likely to reverse a criminal conviction when compared to a land use or environmental permit decision. So the odds of winning on appeal are likely very low. How low? Again, there do not seem to be much in the way of hard statistics but one of our favorite questions is:
Can you point to a case where an appeal permanently stopped the project?We have won some of these, but they are rare. What citizens usually get out of an appeal is a settlement. But with our Equitable Solutions approach you’re more likely to reach a good settlement without the time, money and stress of drawn-out litigation including appeals. So, again, if you feel a permit was issued even though the facts showed it should not, then the probability of winning on appeal is low. But, if the law was ignored then the odds improve. For example, if the law requires a 100-foot separation between streams and buildings but a project was approved with only a 50-foot buffer (without a variance), then this is the type of legal issue favoring a successful appeal. However, even if you win on appeal the applicant may then request a variance allowing the 50-foot buffer. If the permitting agency was willing to approve the project with a 50-foot buffer then they’d probably approve a variance. So your appeal buys some time but you end up with the same outcome. While it may seem that we’re making the question of appeals unduly complicated and we’re far too pessimistic, this is not the case. Instead, we’re simply striving to present the realities. This is why we believe citizens should always consider alternatives to an appeal before investing limited resources in this action. And Equitable Solutions is the best way to identify then win adoption of good alternatives. Consider the following actual case we just settled.
In 2008, we got a call from a homeowners association concerned about a proposal to site a wastewater land treatment system next to their homes. All of the key permits-approval had been granted: conditional site plan approval, a special exception, and the State discharge permit. Unfortunately the filing deadline to contest all the permits had passed, otherwise an appeal would likely have been filed.
In the past CEDS would’ve viewed this as a hopeless case. But by applying the Equitable Solutions approach we eventually won enough changes to the project that the Association felt their health and property value were adequately protected. The applicant agreed to these changes because we made their project the most controversial in the County while the changes allowed them to achieve their goals. The applicant also reimbursed the Association for all the expenses they incurred. It is unlikely that an appeal alone would have achieved as good an outcome.Before bringing this section to a close, let us say that if your goal is to get the courts to overturn a bad law or set a legal precedent, then an appeal makes complete sense. Also, if you’ve exhausted our Equitable Solutions approach then an appeal may also be the best recourse. But before launching into a long and expensive appeal give CEDS a call at 410-654-3021. After learning the specifics of the case we can help you to determine if alternatives exist.
How CEDS Can HelpWe can help you build the best case possible in two ways. First, you can take advantage of the extensive free assistance described below. Second, you can retain CEDS to oversee the use of Smart Legal Strategies to build the best and strongest defense possible for your position. To discuss this second option give us a call at 410-654-3021. For further detail see: Hire CEDS To Manage A Portion or All of Your Case below.
Free Smart Legal Strategies Help From CEDSA number of issues are listed along the right at the top of this webpage. By clicking on these issues you’ll find advice on how to determine if a problem will cause impacts related to the issue. Possible solutions for each impact are also provided. You can download our no-cost, 300-page book How To Win Land Development Issues at: ceds.org/publications. If you have any questions then please give us a call at 410-654-3021. We never charge those seeking to preserve neighborhoods or the environment for answers by phone (provided we do not need to do any research).
Hire CEDS To Manage A Portion or All of Your CaseSince 1987, CEDS has helped literally thousands of people throughout the nation with hundreds of cases. From this unique experience we’ve learned what approaches are most effective in winning cases on behalf of individuals, homeowner associations, and nonprofits. This unique experience is the reason why our clients are winning 90% of their cases at a fraction of the usual cost. Here are several examples of how CEDS can greatly increase your chances of success with minimal expenses:
Smart Legal Strategies ResearchThe first three Smart Legal Strategy actions are: Identify all permits and other approvals; speak with the officials overseeing each permit-approval to assess their willingness-authority to resolve your concerns; and research the actual decision-making history of each permit-approval to determine if it has ever been used to achieve your desired outcome and if so, how to best structure your case to achieve that outcome. We’ve found that a few of the attorneys who specialize in representing citizens routinely carry out all three components. But due to limited funds this tends to be the exception. However, attorneys charge $200 – $500 per hour while the CEDS fee is far less. Also, since we perform this research in the hundred or so cases we manage each year we’re very good at it. The bottom line is that we can complete this research very thoroughly for a fraction of the cost.
Expert WitnessesNext to attorneys, expert witnesses are usually the most expensive part of a case. Because of the many cases we manage across the U.S. we’ve compiled a long list of expert witnesses who:
- Have very good credentials;
- Tend to cost citizen clients less;
- Have proven to be strong witnesses on cross-examination; and
- Have the expertise required to take a hard look at technical issues from the citizen’s perspective.
Initial Strategy AnalysisFor our more complicated cases we prepare a written document we call an Initial Strategy Analysis. The analysis identifies all permits-approvals, staff positions on each permit-approval, decision-making history for each, and all the other information which makes up Smart Legal Strategies. As the title implies, the analysis lays out in detail the strategy option most likely to produce the least expensive victory. To see an example of one of these strategy documents click on the following text: MAPP Transmission Line. Others can be viewed on our Initial Strategy Analysis webpage.
Poor Issue Identification & Preparation: The Most Common Reason Why Cases Are LostWhat do we mean by an Issue? An issue is usually an impact prompting citizens to oppose a development project. Your goal is to convince a decision-maker to act in a way that prevents the project from being built until the issue is resolved. But to do this you need to prove that:
- the issue is real – likely to occur,
- the negative effects of the issue pose an unreasonable threat to your quality of life,
- a solution is available for resolving the issue, which can range from expanding a buffer to denying approval, and
- the decision-maker has the legal authority to implement your solution.
Required FindingsFor each permit-approval there will be criteria that must be met. These criteria are frequently referred to as Required Findings. They will be found in the section of local, state or federal laws for each permit-approval. Most development related required findings will be found in a local zoning, land use or unified development ordinance. Following are the required findings for granting a Special Exception permit in our home county, Baltimore County, MD:
Before any special exception may be granted, it must appear that the use for which the special exception is requested will not:
A. Be detrimental to the health, safety or general welfare of the locality involved;
B. Tend to create congestion in roads, streets or alleys therein;
C. Create a potential hazard from fire, panic or other danger;
D. Tend to overcrowd land and cause undue concentration of population;
E. Interfere with adequate provisions for schools, parks, water, sewerage, transportation or other public requirements, conveniences or improvements;
F. Interfere with adequate light and air; [Bill No. 45-1982]
G. Be inconsistent with the purposes of the property’s zoning classification nor in any other way inconsistent with the spirit and intent of these Zoning Regulations; [Bill No. 45-1982]
H. Be inconsistent with the impermeable surface and vegetative retention provisions of these Zoning Regulations; nor [Bill No. 45-1982]
I. Be detrimental to the environmental and natural resources of the site and vicinity including forests, streams, wetlands, aquifers and floodplains in an R.C.2, R.C.4, R.C.5 or R.C.7 Zone, and for consideration of a solar facility use under Article 4F, the inclusion of the R.C. 3, R.C. 6, and R.C. 8 Zones.Success in resolving concerns about a proposed development project is far more likely if you can present facts showing that one or more of these required findings are not met. It is more likely the decision-maker will be persuaded by the facts if they are presented by someone who can qualify as an expert witness based on their education and/or experience. Legal precedents and custom-practice will color how required findings are interpreted then applied. For example, in Maryland the Special Exception required findings must meet the legal precedents established in two cases: Schultz v. Pritts and People’s Counsel v. Loyola College. In the Schultz case the appellate courts ruled that to deny a Special Exception the decision-maker must find that the impact of the proposed use would be greater than that resulting from the same use proposed for any other site in the jurisdiction with the same zoning. The Loyola case shrunk the area of the comparison down to the more immediate vicinity of a project site. Many other states use a similar extraordinary impact test with regard to special exceptions, conditional uses or special permits. While an extraordinary impact test may seem difficult to meet, frequently CEDS can demonstrate that a project will result in unusually severe impacts. In fact, there is usually some unusual, excessive impact that prompts nearby residents to oppose the small fraction of development proposals that are contested. Custom and practice is how regulatory officials have interpreted and applied their required findings. While custom and practice lacks the force of a legal precedent it can be crucial to winning the staff support for your position then convincing a decision-maker to require measures that resolve your concerns or to deny approval.
CEDS Uniquely Qualified To Identify & Prove IssuesAs far as we can tell, CEDS is the only organization in the U.S. providing so much free and for-fee assistance to citizens concerned about development impacts. For more than 30 years CEDS has managed hundreds of cases and helped thousands of citizens with development related concerns. As a result we’ve worked with citizen advocates, university professors, other experts, attorneys and government officials in nearly every state. From these folks we’ve learned what works and what doesn’t. This ever expanding experience allows CEDS to keep up to date on the most effective and innovative approaches for preventing impacts and winning cases. This experience also allows CEDS to:
- identify issues most others would miss,
- then to identify solutions, and
- quickly compile the proofs needed to convince decision-makers to implement our proposed solutions.