Chapter 2: Preparing and Presenting a Land Use Case to a Municipality

I.   Introduction

§2.1   A property owner or real estate developer wants to get its real estate project approved as quickly and inexpensively as possible. To do this, the land use attorney must fully understand as much as possible about the client, the project, and the particular community in which the client wants to build. Understanding and dealing with the client is often the most difficult part of the task. Clients have widely different expectations about what happens in the process of seeking governmental approvals. To avoid problems, the attorney must make the client understand how the particular community handles the development process. Only then can the client have realistic expectations about what type and intensity of development will be allowed, how long it will take to get the project approved, and how much money it will cost to get there.

To properly advise the client, the attorney must have a thorough grasp of the physical, economic, and legal constraints on the project. The attorney should become familiar with the location, soil conditions, and topography of the land as well as the layout, size, and appearance of the proposed improvements. Unique physical problems should be identified early and dealt with before an approach is made to the community.

The attorney must also understand the economics of the project. Does the client own the land or is it being purchased? Study the economic terms in the agreement to purchase. Many purchase agreements require substantial nonrefundable deposits to be paid during the time it will take to get the project approved. Some contracts provide such a short time for performance that the client must buy the land outright before the project can be approved. Many clients are not aware that this is likely to happen.

Obtain and review cost estimates for constructing the improvements and the availability, terms, and timing of land development and construction financing. The timetable for development approvals must be integrated into the timetables for purchasing the land, developing it, and constructing the project. As with the purchase agreement, the financing commitment may require the client to make substantial expenditures before approvals can be obtained. Developers invariably underestimate how long it will take to get the project approved.

The attorney must analyze the legal constraints on the project and should review the applicable federal, state, and local land use legislation and regulations. While familiarity with all regulations is important, state and local rules are generally the most significant. The zoning power is a state power delegated to local governments for implementation. Environmental regulations are imposed at both the state and local levels. Local regulators tend to be the most difficult to deal with because the local community has the most immediate stake in the project and the local community will be the source of the most intense opposition to the project.

The attorney should immediately obtain and review the municipality’s zoning and other applicable regulatory ordinances. Many communities post these ordinances on the Internet. These ordinances are not uniform throughout the state and they are frequently amended. But understanding the ordinances is not enough. It is equally important to understand the community, which includes learning about how land use decisions are made there and the background and philosophies of the decision makers. This information is not found in any book. It is developed over time by dealing with the people who make the decisions.

Although there are many variations in municipal decision making, four general patterns are most prevalent. Most municipalities are run by an oligarchy—a small group of people who decide what happens. Identifying these people and getting them to trust you is one of the land use lawyer’s greatest assets. In other places, a single person must pass on every new project before it can be approved. While these municipalities are simpler to deal with, the consequences of offending the local monarch can be devastating. The attorney must find out what makes this person tick before opening negotiations for the project. Some municipalities function pretty much as the statutes and ordinances anticipate. The elected and appointed officials decide what they are supposed to decide. Everyone sticks to their respective roles. While obtaining approvals in these communities is often time consuming, projects will be approved if the municipality’s criteria are met. Finally, there are a few communities that are truly anarchic, where various factions of municipal officials constantly bicker and lack respect for each other’s points of view. Decision making is often illogical, inconsistent, and untimely in these communities. These communities frequently find themselves in litigation. Thus, the attorney must first assess the particular community to decide how best to approach the approval process.

For helpful “dos and don’ts” lists for municipal attorneys, landowner or developer attorneys, and attorneys representing neighbors, see chapter 11.