Real Estate and Politics Pt 1: Securing Development Approvals in a NIMBY Age

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(Robert J. Flavell is vice chairman of The Saint Consulting Group and co-author of NIMBY Wars: The Politics of Land Use)

By Robert J. Flavell, Vice Chairman, The Saint Consulting Group

It’s evening at city hall. The planning board’s hearing on the proposed development is about to get underway before an expectant crowd of citizens. The development team files in, confident that their cutting-edge proposal will win approval, especially considering the generous mitigation it offers and the many encouraging meetings the developer has had with city officials.

The developer’s lawyer makes her presentation, followed in turn by the architect, the traffic engineer, the environmental consultant, the project manager, and the developer himself. The planning board chairman thanks them for their presentations, and opens the floor to public comment.

Then, one by one, three dozen local citizens take to the microphone and condemn the proposal. It will endanger their children, they say. It will cause air pollution. It will destroy their quality of life. The traffic will be unbearable. Property values will plummet. It will overburden the water and sewer systems, road infrastructure, and force taxpayers to expand the police and fire departments. It will compete unfairly with existing businesses in town and drive them to bankruptcy. Crime rates will skyrocket. It will attract undesirables. It will destroy the community’s character.

The project is doomed, not because it’s a bad proposal and not because the citizens are correct in their criticisms. It will lose because public officials, confronted with angry constituents, will act in the way best suited to secure re-election to office, regardless of what they might have promised the developer. Since land use decisions are made at the local level, citizen impact on public officials is direct and personal. All politics is local, as the late Tip O’Neill famously noted, and all land use decisions are political.

Any developer or corporate development manager who has tried to build almost anything almost anywhere in the last decade is familiar with citizen opposition, and the trauma of making a key presentation before a hostile crowd of citizens. Sometimes, the crowd is far more vociferous and confrontational than the well-behaved opponents in our example, but make no mistake: development opponents are determined and perspicacious, and can kill your project.
It’s a fact of life that today’s developer faces illogical, inconsistent and unattainable demands from citizens who believe they are protecting their neighborhood, their town, their children, and their quality of life from intrusion, destruction, and sprawl. In one project in our experience, neighbors in a busy suburb insisted that the developer preserve the “village atmosphere” along a highway that handled 50,000 cars per day. In another, citizens demanded that a supermarket builder downsize the project to a small neighborhood grocery store, even though the neighborhood grocery being replaced was too small to compete and had gone out of business. In a third project, citizens in a crowded core city with the approximate population density of Hong Kong demanded that a commercial builder reduce traffic flow on their teeming streets to “preserve neighborhood character.”

Can anything be done to stop these absurd demands, encourage cooperation, and get public officials and their constituents to welcome projects to their communities? Yes, provided that the developer is willing to devote the time, effort and resources necessary to learn about his potential opposition, identify vulnerabilities, and conduct the approval process like a political campaign.

Generally, development opposition arises from inherent resistance to change and fear of the unknown—NIMBY (Not In My Back Yard) opposition. There is also a broader opposition that arises from public policy objectives—opposition to nuclear power plants, for example, or casinos. This opposition is driven by national environmental, religious, social planning, and other advocacy groups, but they cannot succeed without local politics—which is why they rely on local citizens to voice their concerns, rather than flying in an expert from Washington. And there is a third source of opposition: competitors, who quietly fund astroturf groups to protect their market share against rivals. Policy advocates and competitors both understand that they gain credibility and impact with public officials when they engage local voters to speak on their behalf, and subsume their arguments into the NIMBY emotion-driven quality-of-life posture. Thus, NIMBY opposition, policy objectives, and competitors’ motives converge to present a formidable array of arguments drawn from both emotion and science, all to achieve an essentially political end.

Gone are the days when a developer simply hired the local political boss to push his project through the approval process. Gone are the days when neighbors paid little or no attention to development, and public hearings were sparsely attended. And long gone are the days when people generally thought landowners had a right to develop their land pretty much as they wished.
To win approval nowadays, developers must fight fire with fire: they must counterbalance citizen opposition with citizen support, and demonstrate to the public officials empowered to make the decisions that it is not the public who are against the proposal, but only a small group of citizens who do not see the big picture, and who are unreasonable in their demands.

To be successful, the developer must conduct the permitting process as a political campaign—mobilizing supporters, responding to opponents, settling issues, neutralizing opposition, building support, and convincing people that the development will benefit the neighborhood. That means conducting community outreach, visiting abutters, negotiating with neighborhood groups, massaging public officials, handling the news media, forming support groups, orchestrating presentation performances at public hearings, generating favorable publicity, letters and calls, and demonstrating political strength—in short, doing the things that a candidate for public office would do, and more.

Modern citizens feel empowered and entitled to deference from their public officials and usually, they get it. Land use decisions are made at the local level, where citizen influence is greatest because the electorate is small. A congressman representing 500,000 people may be able to ignore a few hundred naysayers because those numbers cannot sway an election; but a town councilor representing 2,500 people may find his re-election decided by a few dozen votes.

Politicians want to be re-elected, and angry citizens vote. They will not forget the name of the public official who approved the monstrosity built down the street from their homes; he makes permanent enemies by voting for approval. The Saint Index®, (http://tscg.biz/the-saint-index/executive-summary) an annual survey of public opinion in the U.S., U.K., and Canada, reports consistently that people are overwhelmingly opposed to new development in their communities. They see it as an intrusive, obnoxious, unwanted annoyance that permanently alters the status quo and forces them to compromise their quality of life.

These are not mere complainers grousing from the comfort of their armchairs: the same survey shows that a substantial proportion are activists who have personally opposed development, and are prepared to do so again because they perceive their community as fully developed, or believe it is already over-developed. Since citizens almost universally oppose change, the safe bet for public officials is to vote for the status quo and against proposed projects, particularly if citizen opposition is vigorous. Since public officials have discretionary and subjective authority to determine whether a given project is in the best interests of the community, they have no excuse for approving a project in defiance of citizen wishes unless given solid political justification for voting in favor.
This is where the development manager’s political acumen comes into play: the politician needs political cover—a defensible position—in order to vote for a project without suffering adverse consequences at the ballot box. The manager provides that cover by organizing active citizen support for the project, demonstrating that the opponents do not represent public sentiment.

Robert J Flavell is vice chairman of The Saint Consulting Group, email flavell@tscg.biz

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