Plan Ahead to Prevent A Land Use Lawsuit

Commercial Litigation Commercial Real Estate

The best lawsuit in any context is the one you can avoid or dispense with quickly.  In the context of land use planning, you never know when you might later find yourself in litigation.  Keeping that unfortunate possibility in mind will help you make decisions through the approval process consistent with your goal of avoiding litigation or dispensing with it early. 

The Public Hearing Process

As a property owner or developer, you want to make some use of your land that requires approval from local government.  Perhaps it is a rezoning to allow a different use or a special use permit required for a particular form of development.  In any case, you need certain approvals to move forward with your plans. 

After working with your local planning staff and refining plans consistent with local ordinances, you apply for development approval.  Everything goes smoothly until you reach the public hearing.  You have your engineer, developer representative, and property owner at the public hearing, but not a lawyer.  You also have a motivated neighbor who is intent on stopping the project.  The neighbor intends to present her evidence that your project should not be approved.  Depending on the type of approval, this may be in the form of sworn testimony or general concerns about the project.  Despite the objections, the local governing board sees the benefits of your development and votes to approve.  You have your approval and you are on your way.  That’s it, right?

The Neighbor Sues

Under North Carolina law, certain parties have standing to challenge the governing board’s decision.  In many cases, that challenge comes via a Petition for Writ of Certiorari.  This procedure asks a Superior Court judge to look at the case and decide whether the governing board made the right decision.  And here is the most important point—in many cases, that decision is based only on the evidence submitted at the hearing, both for and against the project.  If the developer’s team did not offer certain testimony, or did not object to certain other testimony, it is too late.  The record of the public hearing is fixed, and you have to make do with what happened at that evening meeting several months ago.  There may be overwhelming factual support that the governing board made the right decision. But unless that factual support was offered into evidence at the public hearing, the Superior Court cannot consider it.

Solution

The proposed project may be a great one, with wide community support and quick approval from the governing board.  But a party with standing can still challenge the approval.  And in some cases, if certain evidentiary burdens were not met, the court may overturn the approval.   

Planning ahead in consultation with a land use lawyer can help.  The property owner and lawyer should work together on the front end to understand the type of approval, the facts needed to support the approval, and the desired record to withstand a challenge from anyone opposing the approval.  With this forward-looking approach, a property owner or developer can be best positioned to secure its approval and protect it against later challenges.