The Lawsuit Approach to Dealing with Opposition

The Saint ReportPlanning and Zoning, saintblog, Thought Leadership

From NIMBY Wars: The Politics of Land Use

lawsuitBy P. Michael Saint,
Chairman and CEO &
Patrick Fox, President, The Saint Consulting Group

In their anger and frustration, hard-charging developers sometimes resort to suing project opponents. They generally fail legally, and they always fail politically. A developer who expects to win the votes of local public officials by suing their constituents understands neither the workings of politics nor the thirst of the news media for a David and Goliath story. He will have wasted his time and money suing the opponents and will lose whatever goodwill he might otherwise have built with town officials. The local news media, firmly protected by the First Amendment, take a dim view of developers who sue local citizens, and they are not afraid to say so.

The developer will be depicted as an ogre, if not a thug, and a creative editor will send reporters to scour court records and public filings to gather mud to fling. The resulting newspaper clippings and editorials will soon appear on the Internet for the entire world to see, and will prove especially handy for opponents of future projects to download whenever the developer seeks zoning relief elsewhere.

Once the local board has denied the application, appeals are seldom successful. Even if the developer can show standing and grounds for appeal, courts generally defer to the decisions of local boards whose members heard the evidence firsthand and are the local arbiters whose decisions ought not to be second-guessed without good reason. The common standard of proof—that the board acted in an arbitrary and capricious manner—usually proves insurmountable because the board did not, in fact, act that way. Even in the rare instance that the court does find that the board acted in an arbitrary and capricious manner, the developer wins the battle only to lose the war: the court will not order the requested relief or rezoning, but will simply remand the case to the local board for rehearing.

 A developer who thinks that a humiliated and resentful town board, now under even greater pressure from citizens, is more likely to grant relief the second time around lives in a fantasy world. The board will definitely be more careful the second time around in setting forth the reasons for rejection on rehearing, so as not to give grounds for another appeal. Once burned, board members will ask the city solicitor to write the decision, making sure each required element is fully covered and the decision is legally sound and iron-clad, as appeal-proof as possible. The upshot is that the developer has wasted lots of time and money and is no better off after 18 months than when she started.

Sometimes, a particularly incensed developer will file suit in federal court based on some academic or arcane constitutional theory, alleging that his equal protection, due process, or other civil rights were violated, or that the board’s actions essentially confiscated his property. While such litigation presents a challenging mental exercise for lawyers on both sides, instigates massive multiple-lawyer research, and generates a lot of legal brainstorming and detailed brief writing, the result for the developer is usually far less than optimal. In any case, a suit is expensive and doesn’t get the project built.

Mike Saint is chairman and CEO of The Saint Consulting Group, email:
Patrick Fox is president of The Saint Consulting Group, email: