Sunday, November 17, 2019

#321 / When You’re Facing A Land Use Battle

I was asked, recently, about what local groups and individuals facing an upcoming land use battle should know, as they think about getting help from an attorney. Here are some thoughts. 

If an individual or group learns about a potential land use “battle,” that usually means that there is likely going to be a major disagreement about some proposed action by a governmental entity that will probably have adverse impacts on a local neighborhood, or on a river or creek, or on a piece of natural land, or that might involve the use of toxics, or that might otherwise pose a potential public health danger. In general, such land use “battles” usually involve a proposed project that would adversely impact the natural environment. 

Even “private” proposals - like the construction of a new home - almost always require governmental approvals of various kinds, so while it makes sense to approach and have discussions with the private parties involved in a proposed project, it is most important to understand what governmental approvals will be necessary, and to focus on affecting those. A local City Council, or a Board of Supervisors, or the Coastal Commission, or a host of other governmental agencies, including state and sometimes even federal agencies, are almost always going to play a central role. The “battle” will be fought out on the terrain established by the governmental rules and regulations that apply to the proposed project. When you first conclude that you are going to be facing such a “battle,” it is most important to “get organized” as soon as possible. “Groups,” not individuals, do better in such battles. So, step one is to form a group, and to learn in great detail what the rules will be. Know in detail just how the process will move forward.

Decisions made by governmental bodies are, by definition, “political.” Thus, garnering widespread support from those who will be affected by the proposed project, or who share a common appreciation of the environmental dangers or community impacts involved in the proposed project, is absolutely key. One person who raises legitimate concerns is good. A well-organized group of ten, or twenty-five, or fifty persons or more will have a much greater “political” impact, and elected officials will pay much more attention to the concerns advanced by such a group than it will pay to the very same concerns when expressed by a single individual.  

“Legal” issues, while they will play a role in the decision-making process, are almost always less important, in the end, than the political decisions made by elected officials. This is not only pragmatic “political advice,” it is also pragmatic “legal” advice. Those opposing proposed projects should NEVER assume that the courts will correct bad decisions made by elected officials. In our system of government, we expect disputed and “tough” decisions to be made by our elected representatives. Thus, the courts will almost always “defer” to elected officials, and the courts will uphold a governmental decision if there is “any” substantial evidence in favor of the decision. Again, the courts “defer” to the decisions made by elected officials, and a mistake often made by those opposing a destructive project is to suppose that the courts will “correct” a decision made by an elected body, or by some non-elected governmental agency that approved the project. Is that true? Not usually!

I encourage all those facing land use "battles" to review my earlier blog posting on "Deference." That blog posting makes clear just why the courts will, in most cases, be willing to uphold governmental decisions (even when the courts think that the governmental decisions were "wrong").

Let me speak, specifically, about the California Environmental Quality Act, or CEQA. This is California’s most important environmental protection law, and many people think that CEQA will make it impossible for governmental entities to approve “bad” projects. That is not, in fact, generally the case. CEQA requires that an Environmental Impact Report (EIR) be prepared for any project that “might” have a significant adverse impact on the natural environment. Governmental agencies and project proponents will often try to avoid the preparation of an EIR, and unless a project opponent is well organized and well-prepared it is often possible to avoid the EIR requirement. Let’s assume, though, that the group facing an environmental battle has prepared well and is able to make sure that an EIR is prepared. CEQA requires a three-step process. 

First, the governmental agency that is going to carry out or approve the project prepares a “Draft EIR. Then, that Draft is circulated for public comment (and opponents need to submit very strong and legally significant comments). Then, the governmental agency must respond substantively and in detail to each comment received on the Draft. The Draft, plus the comments received, plus the responses to those comments is the “Final” EIR. Before acting on the proposed project, the decision-making body must “consider” the Final EIR. The agency, however, in most cases, does NOT have to do what the Final EIR might recommend. 

The EIR is an “informational” document. So, the whole idea of CEQA is that the governmental officials making decisions should be “informed” about the possible impacts of a proposed project before approving it. The process is sometimes called a "Stop and Think" process. If the governmental agency does "stop and think," by properly undertaking a CEQA review, and if those officials who will make the decision are properly “informed,” according to the procedures specified in CEQA, then the officials can generally approve a project despite the fact that it will have lots of negative environmental impacts. Again, the courts will generally not tell a City Council, for instance, that they must do everything that the EIR recommends. The courts will defer to the governmental officials. The courts will reverse a governmental decision, generally, ONLY when the procedures specified by CEQA have not been properly followed. If they haven't been, then, the governmental agency simply has to go back and correct those procedural errors specified by the courts. So, delay but not denial. That is the best that CEQA usually has to offer.

Short summary: These land use battles are “political” battles; the laws are important - and CEQA is very important - but the ultimate decisions are “political.” You might want to think about that, by the way, when you go to the voting booth.

As you can see from what I have written so far, the sooner you organize, the better. The sooner you contact and then hire a lawyer is also better. Don’t make the mistake of waiting until the week before the public hearing! Lawyers who know their way around land use law will have lots of good ideas about organizing, and about how to develop evidence that can support a decision against a destructive project. Of course, getting in touch with such an attorney may not be all that easy. Ask around in the community. Go online and search for “environmental attorneys,” but be aware that lots of so-called “environmental attorneys,” who are familiar with environmental rules and regulations, may mainly or exclusively work for project proponents and developers, helping them to comply with environmental regulations. Sometimes, there are local groups that know attorneys who are experienced in the political/legal issues involved in land use decision-making. Ask them!

How much will an attorney charge? You will have to work it out with the attorney you would like to have representing you, but it could be a lot. Attorneys, these days, often charge fees of $300/hour or more. But there are some attorneys who will charge less, or who will take cases on “contingency.” Usually, that happens when the attorney believes that he or she will be able to win a lawsuit, if the applicable governmental agencies approve the proposed project. Typically, in that situation, the attorney will ask for a contribution up front, capping the legal fees of the project opponents at that amount. In that situation, the attorney will almost always require his or her client to make a commitment to pay for any court costs, etc., which tend to be rather minor. In a “contingency case” situation, along with this promise by the attorney to represent the opponents for a “capped” amount, the attorney will almost always want a commitment by the project opponents that if the attorney ultimately goes to court, and wins, the group or individual hiring the attorney will allow the attorney to collect and keep all the attorneys fees that the court may award the attorney, who will ask for those fees because the attorney was acting as a “private attorney general.” In California, the law is clear that when someone goes to court to enforce the laws that protect the public from environmental harm, they are entitled to reasonable attorneys fees if they win. Usually, there will be a proviso in the contract between the group and the attorney that provides that if the attorney receives such a private attorney general award of attorneys fees, the attorney will pay back the initial amount and the court costs contributed by his or her clients. Again, you need to ask around, and negotiate.

The most important thing to decide, when you think you may be facing a land use “battle,” is whether or not you really want to get into the “fight.” You need to be "serious." A lot of time and money may well have to be spent. It is NOT easy to stop proposed projects, but such projects absolutely can be stopped, and environmental and neighborhood battles can be won. But let me say it again, you do need to be “serious.” Many assume that because a proposed project is pretty clearly a “bad” idea no governmental agency, in the end, will approve it. Such people think they shouldn’t really have to spend their own money, or spend a lot of time in opposing what is clearly a bad idea.

Big mistake!

Get organized. Get an attorney. Win. And keep this in mind: You can’t win a “battle” unless you fight!

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1 comment:

  1. Gary A. Patton provides invaluable advice for individuals and groups navigating land use battles. His comprehensive insights into the political and legal aspects of these conflicts are both informative and empowering. Thanks for sharing such practical guidance.


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