You think you have a great development plan for expanding or relocating your business. But first, you have to obtain zoning and/or other permit approvals from local elected and appointed boards. Knowing what to expect and having a plan are critical to your plan's success.
Petitioning local boards and bodies for permit approvals is one of the more interesting areas of the real estate and development process. A petition brings with it diverse challenges ranging from understanding complex and sometimes inartfully drafted zoning ordinances to staying abreast of the latest political issues in cities and counties. Because of these factors, the permitting process does not lend itself well to a structured approach that can be explained easily. Trying to explain how to handle matters before local boards is a lot like trying to explain how to hit a seven iron. In the end, it's easier simply to show how it's done. That being said, this article is intended to give you an idea of where to start when you find the need to go before a local board.
Board Approval in Three (Not Quite So) Easy Steps
When presenting a matter before a local board, you must keep in mind the three "C"s – Control, Credibility, and Context. These watchwords should shape your approach in every stage of the process.
Control of Information
Local board decisions can rise to the level of political campaigns. In few other areas can emotions get so high. Neighbors might believe that the proposed action will substantially and adversely change the tenor of their neighborhood and, for example, make it more difficult for their children to play in the streets. In addition, where there are political angles, there always are going to be people who think they stand to lose economically. You might think, correctly, that your project will solidify your company's position in its markets for years to come. Unfortunately, your competitors might think so too. If your competitors mobilize, you might be faced with an opposition that is funded as well as your own support. Even though neighborhood groups are often based on traditional NIMBY ("Not In My Back Yard") arguments, a competitor who stands to lose if your project goes forward, and who could not care less about the NIMBY argument, will seek out potential neighborhood groups to be the face of the opposition.
Information, whether true or not, can be your best friend or your worst enemy. Never get outpaced by neighborhood or newspaper gossip. Many projects have been derailed even before getting underway because stories have broken about it. It's not the stories themselves that derail the project – it's the hyperbole and assumptions that follow.
The key method to guard against this is to control the pace and timing of information. You need to ensure that your plans "roll out" on your terms at your pace with all the attractive highlights featured prominently. Your formal roll-out should contain all of the information you have and should portray your project as favorably as it can while remaining as candid as possible. The end objective in controlling the timing and pace of information is to ensure that everyone's first impression of your proposed project is favorable.
Always be aware of how the public perceives your project. If your project is controversial, or even just "big" for the jurisdiction, it may be helpful to develop strong working relationships with any reporters likely to cover "city hall" to ensure that they at least will come to you for comment if they have a story in the works. You then can take preemptive steps to respond to any negative aspects of the story or reinforce any positive aspects. You also will know who to contact if you have a story you would like to see explored.
Finally, keep all interested parties in the loop. The quickest way to alienate someone is to make them feel like they're not important enough to hear something directly from you, or worse, that you're hiding something from them. Consider sending courtesy copies of materials to anyone who might take an interest in your project. This includes the members of the town council and the neighborhood associations in the surrounding area.
Get to know the zoning staff and the elected or appointed officials who ultimately will decide the fate of your project. Elected officials look to their zoning staff to handle the details of a project. The staff, elected or appointed officials, opposition groups, and the press must have the utmost confidence in the statements you make. Shoot straight with everyone. Defer to those who are in the best position to answer a specific question. You may have engineers, architects, and number crunchers who are more versed in the intricacies of your project than you are. If a staffer asks you a technical question about parking densities and you do not already have the answer down cold, arrange for your engineer to call the staffer. If a member of the city council wants to know how much revenue your project will bring to the downtown district, get your business people on the phone. Don't "guess" and run the risk of getting the answer wrong and losing your credibility.
You, or your team as a whole, must appear knowledgeable. Gather authority on all substantive issues affecting your case. The starting point has to be the applicable local ordinances and procedural steps required for your application. Every jurisdiction has its "quirks" and unique practices. Procedural issues often bore people to tears, but demonstrating a firm grasp on the local procedures goes a long way toward giving you credibility with those who work with the procedures every day. These staffers may make or break your project because they do the detailed review and make the recommendations that will form the first and often last impression in the minds of the applicable elected officials. Flatter them by learning and honoring the rules of "their house," however arcane and bureaucratic they may seem to you.
Context: Keeping Your Eyes on the "Big Picture"
Always consider your application from "10,000 feet." There is a danger in getting bogged down in the minutia of the application process and losing sight of the larger issues at play. You also should try to shape the context by designing a theme for your application that will appeal to as many interested parties as possible. NIMBY opponents focus on the potential impact on them. Zoning staff, elected and appointed officials, and the media will view your proposal with an eye toward its effect on the broader community. Your theme should make the issue not just about you trying to do something and the NIMBYs trying to stop you, but about the larger economic, social, or developmental boon your project will bring to the local community which will benefit everyone. Such broader themes disarm the most vehement NIMBY opponents because they require the reviewing officials to look past the vocal minority and toward benefiting the silent majority.
Obtaining permits from local zoning boards demands mastery of the law, the politics, the history, and the emotion that come with bringing development dollars to a community. It is not often an easy process. However, by thinking about strategies and tactics that most efficiently "move the ball" toward your objective, you can isolate the potential pitfalls, win the permit battle with the local agencies and boards, and allay the fears and concerns of your soon-to-be neighbors.
© 2010, Ward and Smith, P.A.
For further information regarding the issues described above, please contact Derek J. Allen.
This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.