Massachusetts court weakens protections from SLAPP lawsuits
(Jeffrey Gould has written for The Saint Report about SLAPP suits and legal rights to protect public participation in the development process. Here he examines the impact of a Massachusetts court ruling that helps developers avoid the consequences of filing such claims.)
By Jeffrey R. Gould
Vice President & General Counsel, The Saint Consulting Group
The Massachusetts Appeals Court ruled last month that victims of retaliatory lawsuits cannot recoup their legal fees and expenses when the perpetrator voluntarily dismisses its suit before a court enters judgment for the victim.
The Court applied a strict interpretation of the so-called “anti-SLAPP” statute in ruling that attorney fee awards are only available if and when a judge makes a finding that the suit is indeed retaliatory. Connolly v. Sullivan, Appeals Ct. No. 09-P-597 (Feb. 23, 2010). The plaintiff in that case, the former Massachusetts Secretary of State Michael J. Connolly, had sued an abutter for $5 million in damages for challenging an affordable housing project being promoted by Connolly in Wellesley, Massachusetts. The abutter filed a Special Motion to Dismiss under the anti-SLAPP statute, but before the trial court ruled on the motion, Connolly voluntarily withdrew his claim.
The statute was enacted to prevent real estate developers from filing specious lawsuits against their detractors in order to intimidate or quell opposition to their projects. The statute awards the victims of such suits their attorneys’ fees when successful. This ruling is troublesome for victims, because it gives developers a parachute to avoid the fee-shifting consequences of filing such claims. Read More »
Prepare for UK NIMBY Government – big, radical, scary policies
By Nick Keable,
Vice President, UK Operations, The Saint Consulting Group
Assuming that the Tories do manage to come out of the General Election in control of the UK, and that is by no means certain at all, they have this week laid out their proposals for reform of the planning system. And it’s big. And radical. And scary.
Most scary of all is the introduction of third party rights of appeal. This could be truly horrible for the development sector. Labour flirted with the idea earlier this decade but backed off. In Scotland, they came close but stayed sane. Let’s hope that this is an idea that can be seen off as a ‘sacrificial layer’ of their proposals. But maybe not. The Tories are now the party of NIMBYism. They are no longer the party of business. And their ‘localism’ mantra is the driver for this new found love for third party rights, so it may be hard to disabuse them of the third party appeal concept.
The second fundamental fear is the impact of yet another – the third – round of planning system reform since 1997; all policy certainty shot to pieces, council officers sucked out of development control and into policy making, not to mention the inevitable ‘planning by appeal decision’ which during any transitional period always occurs.
There would be winners and losers in this new system.
The losers would be regional government (which would be abolished), potentially developers of major infrastructure projects (whose planning regime would once again be controlled by politicians) and frankly all other developers (who will be impacted by the sclerotic affect of any change to the planning system, as well as a more difficult planning regime at the end of it all).
The winners are many: LPAs (which gain lots more power), county councils (which are being given a role once again), NIMBYs (who will find it much easier to campaign against development) and, of course, planning consultants (who will have to help us mere mortals understand what the hell is going on)!
See here our bullet point summary of the Tories’ proposals…
Dealing with an angry mob – developers should engage community, seek mutual gains
By Patrick Fox,
President, The Saint Consulting Group
A client recently asked me how to deal with an angry mob. If you are confronting an angry mob of residents opposing your project at a public hearing, you’re not alone. I can tell you it is happening across the US and Europe with greater intensity and frequency. But what now?
If you have just walked into your public hearing and you are surprised by the level of opposition, you have made a number of mistakes. The days when developers could cut a back room deal with officials and quietly walk through the local approvals process are long gone. The politics of land use has changed. Maybe you missed the memo.
Developers should be conducting aggressive outreach to abutters, neighbors and community activists early to identify supporters and opponents and gain an understanding of what the issues are. If you have been surprised by an angry mob, you have big problems. Local officials are very unlikely to want to commit political suicide by voting for your project in front of a mob of angry constituents. Winning approval now will be a tough and very expensive fight- if you can win it at all. Read More »
Organizing, implementing an appropriate site selection methodology
(Editor: Anthony Colavolpe is managing principal in the New Haven, Ct. office of Citron Group LLC, an international real estate and advisory services group. This article is reprinted from Shopping Center Business, February 2010 © 2010 France Publications, Inc.)
Site selection has evolved over time. Today, metrics can help you better locate — or relocate — stores so they have optimum performance.
By Anthony Colavolpe
A developer, investor or real estate broker can influence where to locate a store by participating in an appropriate site selection methodology with a retailer. Typically, site selection methodologies include certain basic elements. These, at minimum, involve the delineation of a trade area, determining the sales potential for a given retailer or use category, and the creation of a concept site plan. With these items in hand either the retailer or the person submitting the property for consideration can assist in advancing the selection process. The more information the retailer has the better, particularly if it validates something positive about a site or location.
Trade areas vary from retailer to retailer. Drug stores, for example, may look hard at 1-mile demographics, whereas a grocery store might expand their analysis to 2 or 3 miles when defining a trade area. Home improvement stores, discount department stores or various category killers may take a more regional approach. Regardless of the end user, the retailer carefully determines the area from which 80 percent or more of its business will be derived. Often brokers and developers will simply draw 1-, 2- and 5-mile rings around a site, obtain a myriad of demographic information from a recognized data source and submit this as part of a package to the retailer. While this certainly provides relevant information, it does not replace the retailer’s requirement to determine for itself a location’s sales volume potential and desirability. The retailer also may have access to customer spottings and other data not available to the general public, which can impact the boundaries of a trade area. In the final analysis, the retailer’s trade area will be more like an amoeba than a simple ring or circle. Read More »
Don’t let your project become the third rail in land use politics
By Owen Eagan,
Senior Vice President for Transportation, The Saint Consulting Group
Recently, the issue of transportation gained political undertones in Hawaii as the governor’s race started to unfold there (See “Honolulu rail project: political football or policy football?” http://bit.ly/aZeYY7). Now, transportation has taken center stage in the Texas GOP primary race for governor, even becoming the subject of a “comparative” ad by U.S. Senator Kay Bailey Hutchison (See “Texas GOP primary: KBH promises to deal with transportation – mañana” http://bit.ly/bSl1n6).
Transportation projects can be among the most controversial land use issues because they not only involve NIMBYs, but they also usually require some form of public financing or subsidies. Further, these projects become harder to justify when public resources are strained in difficult economic times. Therefore, it is imperative that private sector interests seeking to develop large scale transportation projects do their political homework.
This includes conducting a political viability assessment to determine whether a project is feasible and, if so, the resources needed to ensure its approval. Without building the necessary political support and giving politicians cover, you risk your project becoming the third rail.
Owen Eagan is senior vice president for transportation for The Saint Consulting Group, email: eagan@tscg.biz phone (818) 239-4769; http://tscg.biz/transportation
NIMBY Wars: security, confidentiality essential to land use politics
(Editor’s Note: Experience shows that security and confidentiality are crucial concerns for clients and land use political consultants and that most project strategy documents eventually wind up in the wrong hands; never put in writing anything you don’t want opponents to know)
By P. Michael Saint, Robert J. Flavell and Patrick F. Fox
Because clients accept their land use political consultant in the inner circle and share proprietary or sensitive project information, they are understandably concerned about confidentiality and security.
A professional land use political consultant who can’t keep a secret or who develops a reputation for double-dealing will not last long in the business. The good reputation of the land use political consultant is therefore the client’s best protection against disclosure.
Although a client can request a written confidentiality agreement, it is unwise to rely on such a document for protection because filing a lawsuit to enforce it would ensure that the confidential information the client is trying to protect gets into the newspaper. It’s far better to limit the list of people who have the information to those who truly need to know, and to remind them that the information is confidential. Read More »
NIMBY Wars: avoid clumsy amateurs; they don’t know land use politics
(Editor’s Note: As we have discussed so far in NIMBY Wars, novice political operatives think that simply inviting people to a hearing will produce turnout. A seasoned political campaign manager knows that mobilizing citizens requires a lot more than that. It’s important to avoid clumsy amateurs.)
By P. Michael Saint, Robert J. Flavell and Patrick F. Fox
An additional point, and an important one, is that land use politics methods work only for those who know how to use them. Many is the public relations operative who thought he knew how politics works, who barged into town full of ideas and threw his weight around, only to dash his client’s hopes. And many are the clients (and their corporate lawyers) who erroneously think they know how to attract and keep project support. For example, one corporate lawyer insisted that the way to turn out favorable crowds was to hire clowns with balloons. He was serious and insistent. His client lost. Another big-firm lawyer spent so much effort trying to figure out the identity of Saint’s campaign manager that Saint killed his client’s project while the lawyer bumbled around playing Sherlock Holmes.
Clumsy amateurs create a mess, poison the well for future attempts, and destroy the proponent’s credibility. Since they don’t foresee the consequences of their actions, they will use a blunderbuss where a feather would have done nicely. They hold contentious public meetings in auditoriums when a small friendly gathering over coffee in a neighbor’s kitchen would have been far more effective in curbing opposition. Read More »
NIMBYism in UK: discuss at Royal Geographical Society, 3 March
21st Century Challenges (www.21stCenturyChallenges.org) will hold a live discussion event at the Royal Geographical Society in London on 3 March 2010 at 7 pm on the issue of NIMBYism in the UK.
For context, please note that some 85 percent of Britons oppose more development in their local communities, making Britain even more NIMBY than the USA or Canada, according to the UK Saint Index.
Julian Glover, chief leader writer of The Guardian newspaper, will chair the panel discussion, which includes: Dame Fiona Reynolds, director-general of the National Trust, Antony Oliver, editor of New Civil Engineer, and Jim Steer, a leading authority on transport.
Full details available here: http://www.21stcenturychallenges.org/focus/meet-our-panel1/
Citizen group should think twice on ShopRite class action lawsuit
(Jeffrey Gould has written for The Saint Report about SLAPP suits and legal rights to protect public participation in the development process. Here he looks at a citizen group in upstate New York that is threatening to sue ShopRite because the supermarket chain has filed a lawsuit to stop Walmart from building a store.)
By Jeffrey Gould
Vice President and General Counsel, The Saint Consulting Group
The group in Wawarsing, NY that is threatening to sue ShopRite because it filed a New York State Environmental Quality Review Act (SEQRA) lawsuit stopping Walmart from building, might want to think twice before filing it. The New York State Legislature, in 1992, enacted Civil Rights Law § 70-a and § 76-a to provide heightened protections for defendants in actions which involve public petition or participation, often referred to as SLAPP lawsuits, or “Strategic Lawsuit Against Public Participation” suits. Similarly, New York State Civil Practice Laws and Rules §3211 (g), also provides protection to the victims of SLAPP lawsuits. And attorney fees are usually awarded as sanctions to a successful litigant who proves that the lawsuit is a SLAPP suit.
Further, Shoprite and others like it that bring lawsuits stopping such developments, may want to consider doing so anonymously by funding the effort, but having citizen groups take the lead, to avoid the negative publicity that comes from blocking a competitor from getting its building permits. The Noerr-Pennington Doctrine, derived from two United States Supreme Court decisions, guarantees citizens their First Amendment right to petition the government for redress without fear of antitrust liability, and protects parties like ShopRite who fund such lawsuits openly, or even anonymously.
To read more about the threatened class action lawsuit against ShopRite, see The Shawangunk Journal
Jeffrey Gould is vice president and general counsel for The Saint Consulting Group, email gould@tscg.biz phone 781.749.7290 Ext: 7115
Open Meeting Laws – know your rights against closed door decisions
(Ed: Katie Ann Lewis has written for The Saint Report about storm water runoff and the impact of erosion on development . Here she provides a detailed look at open meetings laws and analyzes the recent Wyoming Supreme Court decision on closed-door meetings. She also reviews Open Meeting Laws as they apply to executive session, mediation and litigation, contract and employment matters.)
By Katie Ann Lewis
Corporate Paralegal, The Saint Consulting Group
A recent Wyoming Supreme Court decision has brought the issue of open meetings and the ambiguity of statutory language regarding public meetings to the media forefront. What seemingly could be thought to be legitimate deliberations behind closed doors by a local Board actually was found by the Court to violate Wyoming’s Open Meeting Laws.
How does this apply to development projects and community advocacy in land use politics?
If you go to a public meeting or have any involvement in local or state levels of government, then this has a lot to do with you. This Open Meeting Law, as seen in the Wyoming case, can become a very useful tool in project management, litigation and involvement in governmental processes. Whenever a public meeting is called, make sure your group is aware of the rules governing proceedings-make sure notice is given, and by all means, make sure your local or state decision makers are being on the up-and-up with your State’s laws. It very well could lead to a different outcome if it’s found they violated the Open Meeting Law, and it could be exactly what you need to win a project. Read More »