Each year countless individuals, homeowner associations, and environmental groups initiate legal action to protect their homes, neighborhoods, and natural areas. Yet CEDS research shows that most get very little for their time and money. Fortunately, our research has also revealed a better way, which we call Smart Legal Strategies.
When combined with our Equitable Solutions approach, Smart Legal Strategies triples citizen and association success at a fraction of the cost. We've applied Smart Legal Strategies to hundreds of activities throughout the nation that threatened quality of life or the environment, such as:
shopping centers, housing projects and other land development proposals;
transmission lines, substations, etc.;
wastewater plants and other pollution sources;
noise, odors, other nuisances; and
many, many more.
A key reason why legal action fails is the difficulty citizens and their attorneys have in identifying then proving issues. With our extensive network of experts and unique expertise by having won hundreds of cases throughout the nation, CEDS has become highly-skilled at finding and developing issues in a way that greatly increases the likelihood of success. For further detail see Issues The Achilles Heel.
To discuss how the CEDS Smart Legal Strategies approach can be applied to activities threatening your quality of life contact us at 410-654-3021 or Help@ceds.org.
Smart Legal Strategies are initiated concurrently with the following Equitable Solution steps:
Verify that your concerns are valid;
Seek to identify Equitable Solutions that fully resolve your concerns while allowing those responsible for the problem activity to achieve their goals;
Negotiate adoption of the Equitable Solution with the responsible party, regulatory staff, elected officials and other decision-makers;
Ensure that the Equitable Solution will be fully implemented then maintained through permit conditions, side-agreements, and other safeguards;
Use public opinion and the desire of most responsible parties to maintain a positive image as a source of negotiating leverage; and
Use demonstrations of public support to provide elected officials and other decision-makers with the backing needed to require full implementation of the Equitable Solution.
Following are the Smart Legal Strategy actions which, again, are initiated concurrently with Equitable Solutions. These actions increase the likelihood of reaching agreement on Equitable Solutions. However, if a project is so badly planned that Equitable Solutions simply are not available, then these actions increase the likelihood of stopping a bad project by ten-fold. This ten-fold increase is achieved in large part because you've shown decision-makers that despite your best efforts to find Equitable Solutions the project has be so badly planned that impacts cannot be reduced to a reasonably level.
Identify all permits and other approvals relevant to your concerns;
Determine the status of each permit-approval with regard to:
upcoming comment periods;
remaining time before approval; and
Speak with the officials overseeing each permit-approval to assess their willingness-authority to resolve your concerns;
Take a look at the actual law to verify what you're told about limits of authority;
Research the actual decision-making history of each permit-approval to determine if:
it has ever been used to achieve your desired outcome; and if so
how to best structure your case to achieve that outcome; and
note the names of the citizens, their attorney and any expert witnesses for further research and possible use in your case.
Identify attorneys who have successfully represented folks like you with regard to the most promising permit-approval.
Interview each attorney to find the most competent then ask for their minimum fee to enter their appearance, seek a postponement (if needed), and ensure you do not miss comment periods, filing deadlines, or other critical events with regard to the most promising permit-approval.
By retaining an attorney you demonstrate a commitment to a protracted legal battle. Assuming you selected a permit-approval where you have a reasonable chance of success, this demonstration could provide the leverage required to reach agreement on an Equitable Solution.
If a project is so severely flawed that Equitable Solutions are not available, then the following actions are used to block the issuance of a key permit-approval.
Expand efforts to mobilize public opinion in support of your position;
Seek to further expand public support by reaching out to those who live near other locations where the activity exists or may be proposed;
Focus public attention on decision-makers who have the authority to prevent unreasonable harm;
Initiate fund-raising among your ever growing number of supporters; and
Consider changing the law if existing ordinances fail to give decision-makers the necessary authority to act.
The preceding are the basic Smart Legal Strategy actions, but CEDS frequently employs others while in pursuit of victory on behalf of our citizen clients. For further advice on how to carry out these Smart Legal Strategy actions go to How CEDS Can Help below.
One would think that the preceding Smart Legal Strategy actions are routinely pursued. While this is true for major cases launched by well-funded interests, it is not true for the vast majority of cases where a few individuals with limited resources are scrambling to protect their homes and environment.
To understand why Smart Legal Strategies are so effective it helps to contrast it with the conventional approach applied to the vast majority of land use and environmental disputes. The conventional approach typically unfolds like this:
A neighbor learns that in two weeks the Planning Commission will hold a hearing on a proposed development project;
Nearby residents have sketchy information about the project and naturally begin picturing the worse;
They scramble to hire the first lawyer who will take their case and direct the attorney to pursue the one goal that resolves all impacts - Kill The Project - unaware that this goal is rarely achieved;
Since most experienced land use or environmental attorneys will not represent opponents, the lawyer hired by the citizens probably has minimal experience;
Lack of experience combined with a paucity of funds prevents the attorney from thoroughly researching other permits-approvals, decision-making history, and staff positions and this research is critical to identifying the permit-approval giving the best chance of success;
Citizens exhaust limited resources on the hearing only to learn that the Planning Commission makes a recommendation, but the local Board of Appeals is the final decision-maker; then
With very little funds left to hire expert witnesses or pursue other actions essential to presenting a strong case before the Board of Appeals, the project is approved. Since the citizens sought to simply Kill The Project, they didn't propose any Equitable Solutions which could have become conditions of approval and thereby reduced project impacts.
The best attorney is one who:
Of course there are other important factors such as:
So how do you find this best attorney?
Well, simply calling names in the phone book is definitely not the way to begin. Here's why. About 34,000 attorneys are licensed to practice in our home state of Maryland. Of these, about 1% focus on land use and zoning law. And you really need the expertise derived from such a focus. Furthermore, only about 30 of these Maryland land use-zoning attorneys specialize in representing citizens. So the odds of finding one of these 30 specialist attorneys is about 1 in 1,000. You're more likely to find an attorney who has been thinking of dabbling in land use law and sees your case as an opportunity to gain experience. This could prove a very expensive attorney indeed. You'll be paying them to learn things the specialist already knows and they'll be making mistakes in your case the specialist learned to avoid long ago.
Here's a place to begin your search for the best attorney. Over the years CEDS has been compiling the names of attorneys who have a good reputation for representing citizens in land use, zoning and environmental cases. We now have about 140 names on our list with at least one in most states. So give CEDS a call at 410-654-3021 and we'll see if one of these attorneys practices in your area. If not, then we can turn our meter and find several good attorneys for you. Generally, this costs no more then $200 which you'll save many times over if you consider the costs of hiring the wrong attorney. Finally, you'll find advice on locating good attorneys in Chapter 40, of our free 300-page book How To Win Land Development Issues.
We strongly urge you to interview at least three good attorneys. From each you'll learn something different about how to resolve your concerns. This knowledge will make it far easier to select the best attorney for your case. However, never seek to engage attorneys in a bidding competition.
If your goal is to get the courts to overturn a bad law or set a legal precedent, then an appeal makes complete sense. But for most other cases CEDS research indicates its quite uncommon for citizens to succeed in reversing a decision to issue a permit or other approval. Instead a negotiated settlement is the most likely positive outcome.
The reason for this lack of success is a principle known as judicial deference. Under this principle courts tend to defer to agencies, planning commissions, and Board of Appeals on technical-factual matters. However, if you feel a permit or approval was issued in violation of applicable laws, then the likelihood of a reversal increases. But the odds are still against you.
How bad are the odds?
Well, there don't appear to be statistics on how often land use or environmental permit decisions are reversed, but they do exist for other areas of the law. For example, about 2% to 5% of criminal convictions are reversed when appealed to higher courts. We suspect though that judges are more likely to reverse a criminal conviction when compared to land use or environmental permit decision. So the odds of winning on appeal are likely very low. How low? Again, there do not seem to be much in the way of hard statistics but one of our favorite questions is: Can you point to a project where an appeal permanently stopped the project? We have won some of these, but they are rare.
What citizens usually get out of an appeal is a settlement. But with our Equitable Solutions approach you're more likely to reach a good settlement without the time, money and stress of drawn-out litigation including appeals.
So, again, if you feel a permit was issued even though the facts showed it should not, then the probability of winning on appeal is low. But, if the law was ignored then the odds improve. For example, if the law requires a 100-foot separation between streams and buildings but a project was approved with only a 50-foot buffer, then this is the type of legal issue favoring a successful appeal. However, even if you win on appeal the applicant may then request a variance allowing the 50-foot buffer. If the permitting agency was willing to approve the project with a 50-foot buffer then they'd probably approve a variance. So your appeal buys some time but you end up with the same outcome.
While it may seem that we're making the question of appeals unduly complicated and we're far too pessimistic, this is not the case. Instead, these are the realities. This is why we believe citizens should always consider alternatives to an appeal before investing limited resources in this action. And Equitable Solutions is the best way to identify then win adoption of good alternatives. Consider the following actual case we just settled.
In 2008, we got a call from a homeowners association concerned about a proposal to site a wastewater land treatment system next to their homes. All of the key permits-approval had been granted: conditional site plan approval, a special exception, and the State discharge permit. Unfortunately the filing deadline to contest all the permits had passed, otherwise an appeal would likely have been filed.
In the past CEDS would've viewed this as a hopeless case. But by applying the Equitable Solutions approach we eventually won enough changes to the project that the Association felt their health and property value were adequately protected. The applicant agreed to these changes because we made their project the most controversial in the County while the changes allowed them to achieve their goals. The applicant also reimbursed the Association for all the expenses they incurred. It is unlikely that an appeal alone would have achieved as good an outcome.
Before bringing this section to a close, let us say that if your goal is to get the courts to overturn a bad law or set a legal precedent, then an appeal makes complete sense. Also, if you've exhausted our Equitable Solutions approach then an appeal may also be the best recourse. But before launching into a long and expensive appeal give CEDS a call at 410-654-3021. After learning the specifics of the case we can help you to determine if alternatives exist.
We can help you build the best case possible in two ways.
First, you can take advantage of the extensive free assistance described below.
Second, you can retain CEDS to oversee the use of Smart Legal Strategies to build the best and strongest defense possible for your position. To discuss this second option give us a call at 410-654-3021. For further detail see: Hire CEDS To Manage A Portion or All of Your Case below.
You can download our no-cost, 300-page book How To Win Land Development Issues at: ceds.org/publications. The table below lists the chapters in our book describing how to carry out each of the actions which make up Smart Legal Strategies.
|Smart Legal Strategies Component||Chapter|
|Verify project impacts||1|
|Identify Equitable Solutions||2 - 26|
|Researching strategy options||35|
|Identify all permits-approvals||34|
|Negotiate with the applicant||37|
|Work with review agencies to make Equitable Solutions permit conditions||38|
|Research decision-making history||35|
|Finding the best attorney||40|
|Educating the public||36|
|Changing the law||41|
|Providing elected officials and other decision-makers with public support||39|
If you have any questions then please give us a call at 410-654-3021. We never charge those seeking to preserve neighborhoods or the environment for answers by phone (provided we do not need to do any research).
Since 1987, CEDS has helped literally thousands of people throughout the nation with hundreds of cases. From this unique experience we've learned what approaches are most effective in winning cases on behalf of individuals, homeowner associations, and nonprofits. This unique experience is the reason why our clients are winning 90% of their cases at a fraction of the usual cost. Here are several examples of how CEDS can greatly increase your chances of success with minimal expenses:
Smart Legal Strategies Research: The first three Smart Legal Strategy actions are:
Identify all permits and other approvals; speak with the officials overseeing each permit-approval to assess their willingness-authority to resolve your concerns; and research the actual decision-making history of each permit-approval to determine if it has ever been used to achieve your desired outcome and if so, how to best structure your case to achieve that outcome.
We've found that a few of the attorneys who specialize in representing citizens routinely carry out all three components. But due to limited funds this tends to be the exception. However, attorneys charge $200 - $400 per hour while the CEDS fee is far less. Also, since we perform this research in the hundred or so cases we manage each year we're very good at it. The bottom line is that we can complete this research very thoroughly for a fraction of the cost.
Expert Witnesses: Next to attorneys, expert witnesses are usually the most expensive part of a case. Because of the many cases we manage throughout the nation we've compiled a long list of expert witnesses who:
All four of these characteristics are essential to winning a case. In our early years we would occasionally use experts who sounded great but then folded on the witness stand.
Initial Strategy Analysis: For our more complicated cases we prepare a written document we call an Initial Strategy Analysis. The analysis identifies all permits-approvals, staff positions on each permit-approval, decision-making history for each, and all the other information which makes up Smart Legal Strategies. As the title implies, the analysis lays out in detail the strategy option most likely to produce the least expensive victory.
What do we mean by an Issue? An issue is usually an impact which prompts citizens to oppose a development project. You hope that a decision-maker will prevent the project from being built until the issue is resolved. But to do this you need to prove that...
the issue is real - likely to occur;
the negative effects of the issue pose an unreasonable threat to your quality of life;
a solution is available for resolving the issue, which can range from expanding a buffer to denying approval; and
the decision-maker has the legal authority to implement your solution.
Steps for proving each of these four points were described above under What Are Smart Legal Strategies?
So why raise these points again? Because far too many citizens and their attorneys go into a hearing without identifying all issues or with inadequate proof of the four points. The reason usually comes down to a lack of experience and access to expertise combined with insufficient funds to retain those with the necessary experience and expertise. Perhaps an example would best illustrate this point.
Stormwater runoff pollution is frequently the greatest impact development causes to streams and other aquatic resources. Citizens will call CEDS and say they raised this issue at a hearing but the applicant's consultant said the proposed Best Management Practices (BMPs) shown on the site plan would fully resolve the impact. When CEDS does a free review of the plan we usually find the BMPs are far from effective in resolving stormwater impacts. But if citizens lack an expert like those in the CEDS network to counter the consultant, then the decision-maker has no choice but to dismiss the issue. While the citizens' attorney may cross-examine the consultant its rare that you get an expert to reverse their position on the witness stand. And few attorneys have the in-depth knowledge of this and other technical issues to even know the right questions to ask.
Okay, let's back-up and try to do this right. Let's say your attorney sees the stormwater issue as strong and asks your permission to retain an expert witness to prove the impact. Your attorney will find most of those with the right expertise make their living working for development companies. These experts will refuse to testify. You could try subpoenaing government experts but these folks are notorious for waffling on the witness stand. Maybe you can find a university professor wiling to testify but since they don't spend a lot of time reviewing stormwater plans they may not be up on the most effective BMPs. Suffice to say, it can be very challenging and expensive finding the right expert. We frequently need to bring in someone from another state.
The other challenge is being able to identify issues. Some are obvious, others not so much. CEDS gets frequent calls about convenience store-gas station combinations. Issues voiced by callers include traffic, lights, noise and crime. But an emerging issue is the release of cancer-causing vapors during refueling at the larger gas stations. This issue has allowed several of our clients to win their cases. Yet few attorneys much less citizens are aware of the issue, unless they visited our webpage. And this is but one of many examples. Most attorneys who take citizen cases lack the experience to identify these issues. This is why CEDS has produced so many free web resources and a 300-page book so citizens have a better chance at identifying issues then winning correction. Its also why we do free reviews of development plans. To make arrangements for a review contact us at Help@ceds.org or 410-654-3021.
As far as we can tell, CEDS is the only organization providing so much free and for-fee assistance to citizens concerned about development impacts in the nation. For nearly 50 years CEDS has managed hundreds of cases and helped thousands of citizens with development related concerns. As a result we've worked with citizen advocates, university professors, other experts, attorneys and government officials in nearly every state. From these folks we've learned what works and what doesn't. This on-going experience allows CEDS to keep up to date on the most effective and innovative approaches for preventing impacts and winning cases. This experience also allows CEDS to identify issues most others would miss then to identify solutions and quickly compile the proofs needed to convince decision-makers to implement our proposed solutions. We also have a nationwide network of attorneys who specialize in helping citizens with land use and environmental cases. Our network also includes a long list of experts in traffic engineering, stormwater management, urban planning, property valuation, noise control, and just about another other expertise our clients may need. So contact us at Help@ceds.org or 410-654-3021 whenever you need help with an issue.