Smart Legal Strategies
Smart Legal Strategies can increase the likelihood of defeating poorly-planned growth by ten-fold at a fraction of the cost
Smart Legal Strategies is an approach CEDS developed based on 40 years of helping individuals, homeowner associations, and nonprofit groups win battles to protect neighborhoods and the environment throughout the U.S. While the conventional approach to fighting bad development only succeeds 5% to 10% of the time, Smart Legal Strategies stop half of all poorly-planned growth. So, before hiring an attorney contact CEDS at 410-654-3021 (call-text) or Help@ceds.org for an initial no-cost discussion of how Smart Legal Strategies can greatly increase your chances of victory.
Please don’t hesitate. Delay almost always decreases the likelihood of success.
The advice offered in this webpage was written by CEDS president Richard Klein, who is not an attorney. These suggestions reflect the advice of numerous attorneys, many of which specialize in representing those concerned about proposed development and other projects that might pose a threat to a neighborhood or the environment. You should always consult with an attorney, like those in the CEDS Good Attorneys network, when considering options for preserving your community through legal action.
Smart Legal Strategies Overview
The Smart Legal Strategies approach consists of the following elements:
- 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.
With Smart Legal Strategies, CEDS clients have won campaigns involving:
- gas stations-convenience stores,
- transmission lines, substations, etc.,
- mining operations, and
- many, many more.
To discuss how the CEDS Smart Legal Strategies approach can be applied to activities threatening your community or the environment contact us at 410-654-3021 or Help@ceds.org.
Smart Legal Strategy Details
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.
Following are the Smart Legal Strategy actions which, again, are initiated concurrently with Equitable Solutions. These actions increase the likelihood of reaching agreement on Equitable Solutions. However, if a project is so badly planned that Equitable Solutions simply are not available, then these actions increase the likelihood of stopping a bad project by ten-fold.
This ten-fold increase is achieved in large part because you’ll be able to show decision-makers that despite your best efforts to find Equitable Solutions the project is so poorly planned that impacts cannot be reduced to a reasonable level.
- 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.
The preceding are the basic Smart Legal Strategy actions, but CEDS frequently employs others while in pursuit of victory on behalf of our citizen clients. If you wish, CEDS can carry out the steps listed above through an Initial Strategy Analysis. Frequently the Analysis costs less than $1,000. For further advice on how to carry out these Smart Legal Strategy actions go to How CEDS Can Help below.
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 Case
The 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.
Of course there are other important factors such as:
- 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?
So how do you find this best attorney?
Well, simply calling names in the phone book is definitely not the way to begin. Here’s why. Only a small percentage of attorney have the right expertise and represent citizen opposed to development projects. For example, about 34,000 attorneys practice in our home state of Maryland. Of these, about 1% focus on land use and zoning law. And you really need the expertise derived from such a focus. Furthermore, only about 30 of these Maryland land use-zoning attorneys specialize in representing citizens. So the odds of finding one of these 30 specialist attorneys is about 1 in 1,000. You’re more likely to find an attorney who has been thinking of dabbling in land use law and sees your case as an opportunity to gain experience. This could prove a very expensive attorney indeed. You’ll be paying them to learn things the specialist already knows while they make mistakes the specialist learned to avoid long ago.
Here’s a place to begin your search for the best attorney.
Over the years CEDS has been compiling the names of attorneys who have a good reputation for representing citizens in land use, zoning and environmental cases. We now have about 220 names on our list with at least one in most states. To see a listing of the number of attorneys by state in the CEDS database go to: Good Attorneys below. So give CEDS a call at 410-654-3021 and we’ll see if one of these attorneys practices in your area. If not, then we can turn our meter and find several good attorneys for you. Generally, this costs no more then $200 which you’ll save many times over if you consider the costs of hiring the wrong attorney. Finally, you’ll find advice on locating good attorneys in Chapter 40, of our free 300-page book How To Win Land Development Issues.
We strongly urge you to interview at least three good attorneys. From each you’ll learn something different about how to resolve your concerns. This knowledge will make it far easier to select the best attorney for your case. However, never seek to engage attorneys in a bidding competition.
Good Attorneys By State
CEDS 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.
Many 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, we will draft a summary of your case and send it to the appropriate attorneys in our database for your state to learn if any can be of assistance.
Unfortunately we must charge a modest fee – usually $300 to $500 – to prepare the summary then discuss your case with the attorneys. Of course we will not commit you to paying any attorney fees. Instead we’ll send you an email listing the attorney(s) open to representing you along with any initial thoughts they share on the likelihood of a successful outcome. At that point we’ll usually encourage you to contact the attorney directly.
To initiate the referral process, contact us at 410-654-3021 or Help@ceds.org.
If you cannot afford an attorney then try doing an internet search using the name of your state and “law clinic”. Many university law schools have clinics that will help folks free of charge. However, since the number of requests always far exceed their capacity, do not give up. Instead, try all the law clinics in your state.
In addition, there are 850 pro bono legal aid agencies nationwide. Again, try an internet search using the name of your state and “legal aid”.
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 Help
We 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 CEDS
A 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 Case
Since 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 Research
The 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.
Next 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.
All four of these characteristics are essential to winning a case. In our early years we would occasionally use experts who sounded great but then folded on the witness stand.
Initial Strategy Analysis
For 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.
Poor Issue Identification & Preparation: The Most Common Reason Why Cases Are Lost
What 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.
Steps for proving each of these four points were described above under What Are Smart Legal Strategies?
So why raise these points again? Because far too many citizens go into a hearing without identifying all issues or with inadequate proof of the four points. The reason usually comes down to a lack of experience and access to expertise combined with insufficient funds to retain those with the necessary experience and expertise. Perhaps an example would best illustrate this point.
Stormwater runoff pollution is frequently the greatest development impact to streams and other aquatic resources. Citizens will call CEDS and say they raised this issue at a hearing but the applicant’s consultant said that proposed Best Management Practices (BMPs) would fully resolve the impact. When CEDS does a free review of the plan we usually find the BMPs are far from fully effective. But if citizens lack an expert like those in the CEDS network to counter the consultant, then the decision-maker has no choice but to dismiss the issue. While the citizens’ attorney may cross-examine the consultant its rare that you get an expert to reverse their position on the witness stand. And few attorneys have the in-depth knowledge of this and other technical issues to even know the right questions to ask.
Okay, let’s back-up and try to do this right.
Let’s say your attorney sees the stormwater issue as strong and asks your permission to retain an expert witness to prove the impact. Your attorney will find most of those with the right expertise make their living working for development companies. These experts will refuse to testify. You could try subpoenaing government experts but these folks are notorious for waffling on the witness stand. Maybe you can find a university professor wiling to testify but since they don’t spend a lot of time reviewing stormwater plans they may not be up on the most effective BMPs. Suffice to say, it can be very challenging and expensive finding the right expert. We frequently need to bring in someone from another state.
The other challenge is being able to identify issues. Some are obvious, others not so much. CEDS gets frequent calls about convenience store-gas station combinations. Issues voiced by callers include traffic, lights, noise and crime. But an emerging issue is the release of cancer-causing vapors during refueling at the larger gas stations. This issue has allowed several of our clients to win their cases. Yet few attorneys much less citizens are aware of the issue, unless they visited our webpage. And this is but one of many examples. Most attorneys who take citizen cases lack the experience to identify these issues. This is why CEDS has produced so many free web resources and a 300-page book so citizens have a better chance at identifying issues then winning correction. Its also why we do free reviews of development plans. To make arrangements for a review contact us at Help@ceds.org or 410-654-3021.
Required Findings: Key To Success
For 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 Issues
As 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.
We also have a nationwide network of attorneys who specialize in helping citizens with land use and environmental cases. Our network also includes a long list of experts in traffic engineering, stormwater management, urban planning, property valuation, noise control, and just about another other expertise our clients may need. So contact us at Help@ceds.org or 410-654-3021 whenever you need help with an issue.