While occasionally a project is so poorly planned that it can and should be killed, the vast majority of development impacts can be resolved. Over the past 40 years of helping people throughout the U.S. resolve numerous development concerns, CEDS has found that the key to winning decision maker support is showing that:

1. Area residents are deeply concerned about a development proposal,
2. Their concerns are based upon science, not suspicions or knee-jerk reactions, and
3. Their science-based concerns constitute a conflict with the findings required to approve a key permit or other approval. For examples of the many permits-approvals a project may require see the CEDS Data Center Permits, Approvals, Issues, Safeguards & Strategy Options Checklist.

The likelihood of success is further increased if:

4. Residents sought to identify options for resolving each concern, and
5. The options allow the applicant to achieve much of their development goals, or
6. Residents could not identify options that resolved impacts to a degree any reasonable person would view as acceptable, or
7. The applicant refused to consider resident options.

The likelihood of success also increases as the number of concerned residents increases, especially if they are registered to vote within the area decision-makers serve.

When all these elements of success are present CEDS clients frequently win without the need and expense of an attorney or paid expert witnesses. However, when either is needed there are 300 Good Attorneys in the CEDS nationwide network along with many PhDs, engineers, and other professionals who can serve as expert witnesses.

Before engaging an attorney or expert consider allowing CEDS to complete a strategy analysis to assess the likelihood of winning without the need to spend tens of thousands of dollars. And if an attorney is needed, the CEDS analysis will minimize the expense of legal research otherwise needed to identify the issues and arguments essential to success.

THE DECISION MAKERS

Depending upon the permits-approvals required, those making decisions for most development projects are:

• regulatory staff,
• Planning Commission or Zoning Board members, and
• elected officials serving a town, city, or county.

Though State and Federal officials may also be involved in development review and approval, local officials are usually the key decision-makers to success.

Regulatory Staff

Regulatory agency planners and engineers make up most of the staff reviewing development plans. Convincing staff to support your preferred solution(s) to each of your concerns is always worth considering. CEDS suggests an initial discussion with staff to get a sense of their willingness to seriously consider your concerns and solutions. If staff quickly dismiss a solution without explaining why or offering an alternative, equally effective option then try presenting it to other decision makers. However, CEDS has found that when approached with openness and respect most agency staff will respond constructively. At a minimum staff discussions should reveal likely obstacles to adopting each solution. If you can then identify ways of negating obstacles there’s a better chance of convincing the next level of decision makers to support your preferred solution. Of course, the ideal outcome will be a recommendation from staff that higher decision makers support your solution(s).

Planning Commission & Zoning Boards

A Planning Commission, Zoning Board, Board of Appeals or other local body is the next decision-making level. The individuals who make up these bodies are usually unpaid local residents appointed by your local elected officials. For most permits-approvals a public hearing will be held. It is very important to have a large turnout of concerned residents at the hearing. Other suggestions are provided later in the Winning Decision Maker Support At & Before Hearings portion of this webpage. Depending upon the permits and other approvals needed, a Planning Commission or other appointed body may be a final decision maker or may make a recommendation to the local elected (legislative) body.

Local Elected Body

This may be town trustees, a city council, or county commissioners. Titles of local elected body members may also include supervisors, selectmen, or commissioner court members. Frequently a mayor may serve on the local elected body as well. The local elected body is usually the final decision maker for zoning map or text amendments as well as changes to other local laws along with actions such as annexation. The local elected body may also hear appeals of decisions made by staff, the Planning Commission or other appointed bodies.

State & Federal Courts

While most decisions made by the local elected body can be appealed to state or federal courts, the likelihood of success is generally very low. Judges prefer not to substitute their opinion for that of local officials who know far more about local land use and other development issues. There is also the perception that local land use decisions should be made by local officials. If the courts were to undo these decisions then state and federal government would, in effect, wrest land use decision making from local control. The gist is that appealing a local land use decision can be a very expensive roll of the dice with minimal – though not zero – chances of success.

ASSUME THAT MOST DECISION MAKERS WANT TO RESOLVE RESIDENT CONCERNS

From our more than four decades of helping to win development cases in most states, CEDS has found that local decision makers usually have a strong desire to abide by the wishes of residents when it comes to proposed development. But unless resident concerns are based on evidence showing significant impacts are likely AND the impacts conflict with criteria (findings) required to grant permits-approvals, decision makers have little choice but to approve the project.

Additionally, the local elected officials who are the final decision maker in many development cases have other issues to consider such as the need to:

• increase the local tax base to fund the various services residents need,
• increase employment opportunities,
• ensure that various businesses are available to serve local needs,
• avoid expensive lawsuits, and
• a host of other considerations.

The gist is that you are far more likely to win the support of local decision makers if you assume they want to resolve resident concerns. So, treating local appointed and elected officials as well as staff with respect and openness is key to success. Seek to answer all their questions regarding your concerns and solutions. Give their suggestions full consideration.

KEYS TO SUCCESS: POLITICAL, FACTS & LAW

The three keys to winning support given at the beginning of this webpage could be summarized as politics, facts, and law. CEDS has found that victory is 70% political, 15% facts, and 15% law. Success is rare without all three.

We’ve had cases where our clients set a record for mobilizing support then lost because support was based on impacts that simply would not result from a proposed development. We’ve also had cases where support was substantial and impacts likely but did not relate to the permits-approvals a project required. When CEDS clients have all three keys working in their favor they stop poorly planned and unduly harmful development a third of the time. For other, basically sound projects, CEDS clients usually win conditions resolving impacts.

Political

By political we mean showing that a large number of those who can vote in local elections support your position. Of all the methods presented in the CEDS Mobilizing Public Support for Preserving Neighborhoods webpage, petitions tend to be the most effective method for quickly expanding support while educating residents about fact-based issues and showing decision makers that a large number of local residents (voters) support your position.

Many efforts start out with a petition on change.org or other free platforms. However, with these platforms you only get the signer’s name and maybe their town, state, and zip code. Other shortcomings of these platforms are:

• Few explain (comment on) why they signed,
• Half or more of signers likely do not live in the area, and
• The ability to communicate with signers is very limited.

With the platform CEDS uses most signers provide their name, street address, city, state, zip, phone number, email address, and why they are concerned about the data center. CEDS can then provide a report like the one at the following link which our clients use to show decision-makers that many signers live in their election district, their concerns are fact based, and the issue is important enough that they’ll likely remember how each incumbent official acted come the next election: OH Wilmington Data Center Petition Results.

The introduction at the beginning of CEDS petitions provides the facts supporting the validity of each concern. These facts then appear in the reasons signers post on CEDS petitions. These reasons show that signer concerns are based on facts, not supposition. Savvy officials can then see that CEDS petition signers care deeply enough about the issue that they’ll likely remember who supported the community vs. the applicant come the next election. It is for these reasons that CEDS petitions can be up to ten times more effective then free petitions.

The following methods described in the CEDS Mobilizing Public Support for Preserving Neighborhoods webpage are the most effective for quickly getting a large number of petition signers: Palm Cards, Canvassing, Flyers, Influential Groups & Individuals, Tabling, Yard Signs, and Snail-Mail Letters.

Facts

It is not enough to show that a particular kind of development has caused an impact elsewhere. The likelihood of a successful outcome will be greater if you can prove the same or similar impacts are likely to occur at the proposed location. The research required to prove this point necessitates considerable expertise and experience which can be provided by CEDS, many attorneys, and consultants. CEDS is far better equipped for this research for the following reasons:

• Since we only assist those concerned about proposed development, we are far better at assessing impacts from the resident’s perspective vs. attorneys and consultants who mostly service the development industry,
• Because we work in most states CEDS has a depth of knowledge which allows us to draw on a much longer list of possible solutions and potential experts,
• With more than 40 years of impact research we have an extensive library of scientific studies proving a wide array of development issues,
• CEDS is far more efficient which greatly reduces the time and cost of issues research, and
• CEDS is very good at finding no-cost experts among those living in the area of potential impact such as medical professionals who frequently will testify free of charge about adverse health effects resulting from many development projects.

Law

A development project may require a number of permits and other approvals such as a zoning change, conditional use permit, site plan approval, traffic impact study approval, stormwater management plan approval, and on the list may go.

Local laws will usually specify the process for the review. Most will require Planning or Zoning Board approval based on staff recommendations. Others may also require consideration by local elected officials. A public hearing may be held by both decision-making bodies.

Local laws will also specify the criteria – required findings – that must be met to grant each permit-approval. Here’s an example of these required findings:

Conditional use permit.  A conditional use permit shall be granted by the county, only if the applicant demonstrates that:

1. 1. The conditional use is designed in a manner which is compatible with the character and appearance of an existing, or proposed development in the vicinity of the subject property;
   2. The location, size and height of buildings, structures, walls and fences, and screening vegetation for the conditional use shall not hinder neighborhood circulation or discourage the permitted development or use of neighboring properties;
   3. The conditional use is designed in a manner that is compatible with the physical characteristics of the subject property;
   4. Requested modifications to standards are limited to those which will mitigate impacts in a manner equal to or greater than the standards of this title;
   5. The conditional use is not in conflict with the health and safety of the community;
   6. The conditional use is such that pedestrian and vehicular traffic associated with the use will not be hazardous or conflict with existing and anticipated traffic in the neighborhood;
   7. The conditional use will be supported by adequate public facilities or services and will not adversely affect public services to the surrounding area or conditions can be established to mitigate adverse impacts on such facilities; and
   8. The conditional use is not in conflict with the policies of the Comprehensive Plan or the basic purposes of this title.

For the decision maker to deny project approval or require measures (conditions) to resolve concerns (impacts) the development project must fail to meet one or more of these required findings.

WINNING DECISION MAKER SUPPORT AT & BEFORE HEARINGS

Most victories are won before a hearing begins through the publicity and other actions that educate area residents, including decision makers, about science-based concerns and solutions.

In many cases CEDS will draft a letter detailing science-based concerns and solutions like the following example: Calvert Cliffs Data Center issues letter. Since it is always best to have local residents out front leading an effort rather than a paid out-of-towner, CEDS clients will then urge our clients to forward the letter to all decision-makers who will consider the development proposal as well as newspaper, TV, bloggers, and other media. As the number of petition signers grow, the CEDS Petition Results Report is also forwarded to decision makers and the media.

CEDS then urges the local residents leading the effort to request an opportunity to meet with staff to discuss the concerns and solutions presented in the CEDS letter. As noted earlier, discussions with staff can lead to their supporting your position or, at least, letting you know of obstacles to implementing your solution and occasionally even better solutions.

Once any obstacles cited by staff have been resolved or alternative solutions found, then seek to meet with appointed and elected decision makers. You may learn that both are prohibited from discussing a case before the hearing occurs. Nevertheless, it is best to request a meeting.

A large turnout of your supporters at the hearing is crucial. If the CEDS petition platform was used then you’ll have email addresses and phone numbers for most signers, both of which make it far easier to produce a standing-room-only turn out at the hearing.

A few residents should be signed up to present your concerns preferably at the start of testimony. These spokespeople should summarize concerns, the facts supporting the concerns, your proposed solutions, the criteria (required findings) contained in local laws related to each concern, and why these laws support your preferred solution(s). When your spokespeople have completed presenting their testimony, ask all those present who support your position to stand. Following is an example of the three-minute testimony CEDS can prepare for presentation by our clients at hearings: https://app.box.com/s/r8hve7m47u4k4ks5dphshrjpko5m768y. CEDS also drafts longer versions of each three-minute testimony that is provided to decision-makers before hand so they can see the charts and other graphics referenced during testimony: https://app.box.com/s/119ul6vzfvrsiow4qerkzgsh518wj3ku.