David Singer

  How Your Land Use Attorney Can (And Should) Help
 
 

By David B. Singer

It is fifteen minutes before the city council meeting is set to begin discussion of your application to rezone a vacant piece of property into what will become a multi-million dollar profit generator for your organization.  You begin to get uneasy as you have to push your way into the council chambers, and as you walk through the door you are stunned to see hundreds of people – all wearing the same color t-shirts – holding signs that denounce your project.  As you sit down in your chair, the realization comes over you quite clearly that not only will your application be unanimously defeated if it comes to a vote, but you will likely be precluded from resubmitting an application regarding this property for a least another year.

The prospect of relaying this message to your board and CEO gives you a sick feeling in the pit of your stomach, and you think that it is possible that they might blame you for failing to achieve the necessary land use designation approvals for a project that the company has been working on for years.  As you look over at your lawyer with pleading eyes, hoping for some sort of reassurance, all you get back is a sheepish shrug and a suggestion that all local procedures were followed. This does not have to be you.  With proper advice and counsel from your land use attorney, this situation can be effectively and efficiently avoided.

Traditionally, the role of a land use attorney in the context of a rezoning or permitting application has been that of a technician.  The lawyer would look at the ordinance requirements or permit application instructions and advise the client on how to proceed in practical terms, generally instructing the client on how best to comply with the appropriate procedures, and sometimes offering knowledge of how certain elected officials have voted in the past.

The legal formalities of a development application, however, only paint half of the picture of what a client really needs in order to obtain public approvals for their project.  Indeed, the public participation component that completes the picture is too often ignored by the lawyer and the client, and the project application ultimately suffers a resounding defeat that could have been avoided.

The role of the land use attorney is changing dramatically.  No longer can the successful attorney simply be a technical advisor as to procedure and precedent, but rather the attorney must serve both as counselor, and, in the truest sense of the term, as an advisor.  Understanding the local political landscape and learning first-hand what the needs and desires of the community where the client seeks to develop is an integral part of a land use attorney's role in any successful development application process, regardless of whether the applicant is a nuclear energy facility, a community hospital, or a small retail/pharmacy chain.

Before suggesting that corporations don't need to do their due diligence within the communities they seek to develop, consider that a staggering number of local elected officials around the country will immediately ask an applicant – usually with their first question from the dais -- how local residents feel about the proposal, and what steps have been taken to address those considerations.  The lawyer, as both advisor and spokesperson for the application at the time of the hearing, must be prepared not only to answer this question, but to incorporate community support into the actual application and public presentation.

Developers and corporations seeking to develop should be holding their land use attorneys to this standard.  Advising clients to investigate before they invest should be the first piece of advice that lawyers give to their clients looking to develop anything, anywhere.  The attorney's understanding of how to undertake and manage this public participation component is a key part of the development application process.

 

–David B.  Singer is Senior Counsel  with the firm Holland & Knight. His office is in Tampa, Florida and  he  focuses his practice on land use and zoning issues.

 

 

 

 
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