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Lessons Learned from Litigating RealEstate Development Projects
Presented By: Philip W. Bledsoe, Colin C. Deihl,Kelly D. Stohs, David P. Vallas
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Topics
Defeating land use challenges and appealing land use denials
The illusory protections that zoning ordinances and approvals provideagainst liability
Settling land use disputes in the public context, and what makes themunique
The usual suspects leading to litigation in development deals, such as besteffort, time of the essence clauses and “side deals” or oral “amendments”
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Defeating Land Use Challenges &Appealing Land Use Denials
Presented By:
Colin Deihl
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Stakeholders
Be ready for the impacton your brand
Be ready for how this willtranslate to your consumer
Be ready for whatcould be said
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Early Assessment
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Legal Guideposts
Government’s Position Legal Boundaries
Improper Conditions
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Changing Guideposts
New Zoning Code Amendment of a Zoning Ordinance
New Development Plan
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Going to Court
Type of Claims to Bring Expedited Timing
Discuss vs. Claims
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Additional Evidence
FOIA and State Analogues Sunshine Laws
Depositions & Other Discovery
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Judicial Review
Has governmental body exceeded itsjurisdiction; or abused its discretion; orapplied an erroneous legal standard?
Government decision will be upheld unless
there is no competent evidence in the
record.
Courts defer to agency -- abuse of discretionstandard
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Types of Decisions
Variances
Use by Special Review
Subdivision application
Planned Unit Development
Site Specific Rezoning
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Basis of Claims
No record evidence
Failure to apply standards
Illegal conditions or exactions
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Declaratory Judgment
New Zoning Code
Subdivision Regulations
Comprehensive Plan
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Examples
Exceeds authority
Regulatory taking
Unconstitutionally Vague
Procedural Violations
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Scope of Review
De novo review
Court does not need to defer to agency
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Illusory Protection Zoning Ordinances& Approvals Provide Against Liability
Presented By:
David Vallas
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Competing Goals
Goal of Zoning and Land Use Approval Goal of Civil Liability
Not Always Aligned
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State Law Claims
Trespass
Nuisance
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Types of Approval
Municipal approval– Cannot bypass State law by obtaining a local
municipality’s approval of a development.
– Fact that zoning allows such activity does NOTnecessarily stop such activity from beingconsidered a nuisance.
Too much noise or pollution from an entitycan still allow action for nuisance even if thearea is zoned industrial.
Statutory approval– Various laws have passed to prohibit actions
based on nuisance for various activities the statedetermines are worthwhile.
Typically applies to agricultural activity.
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Available Remedies
Injunction
Damages
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Timing of Third Party Claims
Need more than issuance of a special use permit.– Must be some actual development.– Fear of a future nuisance which has yet to occur cannot justify an immediate
filing of suit.– Prompt work may defeat the claim.
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Settling Land Use Disputes in PublicContext, and What Makes them Unique
Presented By:
Kelly Stohs
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What Makes Settlement Unique
Protecting the Public Interest No Contract Zoning
Zoning is an exercise of a governing body’s police power.
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Applicable Law
General contract law applies.
Informal communications may constitutean enforceable agreement
– Even if a more formal contract iscontemplated
– Where material terms were agreed uponand the communications evidence theintent of the parties
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Protecting the Public Interest
Settlement agreements with a governingbody
– Cannot be agreed upon in executivesession of the governing body
– Must follow other applicable laws,including public hearing requirements, toprotect the public interest
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No Contract Zoning
Where the resolution involves thesubmission of a new or revisedapplication:
– The Agreement must be consistentwith the requirements of local law
– Follow the procedures for notice tothe public
– The governing body generally cannotagree to any certain outcome.
Thank you for submittingyour application.
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When the settlement involvessubmission of a revised or newapplication
– Specify developer or landowner’sremedy in event of delay
– Anticipate how conditionalapprovals will impact the settlement
– Specify that the lawsuit will bedismissed only upon issuance of therequested permit
– May need to request a stay orextensions of time from the Court tokeep lawsuit pending until final
resolution.
Anticipating Outcomes
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Usual Suspects Leading to Litigationin Development Deals
Presented By:
Philip Bledsoe
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Best Efforts
Equal to commercially reasonable?
More than good faith?
What happens when the effortsare not successful?
What happens if there are noefforts?
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Time of the Essence Clause
Not the same as a drop dead date.
Look at entire deal.
Problematic if seeking forfeiture.
Using it to rescind easier.
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Addressing Usual Suspects
Context matters.
Often a problem of fit to theproject or deal.
A special problem of admissibility.
Say what you want and mean inthe contract.
VS.
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Is there even such an animal?
Is it less of a deal?
Could it be misrepresentation?
Is it a good deal or a self-dealing?
“Side” Deals
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Documentation Dilemmas
Oral “amendments”
“We can do that later.”
The “E” in email stands for evidence
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Polsinelli provides this material for informational purposes only. Thematerial provided herein is general and is not intended to be legal advice.Nothing herein should be relied upon or used without consulting a lawyerto consider your specific circumstances, possible changes to applicablelaws, rules and regulations and other legal issues. Receipt of this materialdoes not establish an attorney-client relationship.
Polsinelli is very proud of the results we obtain for our clients, but youshould know that past results do not guarantee future results; that everycase is different and must be judged on its own merits; and that the choiceof a lawyer is an important decision and should not be based solely uponadvertisements.
© 2016 Polsinelli PC. In California, Polsinelli LLP.Polsinelli is a registered mark of Polsinelli PC
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