(Editor’s Note: Natural supporters and opponents are people with innate or personal reasons for supporting or opposing a project. They don’t need to be sold either way, but they might not come forward and take a position if the political manager doesn’t reach out and encourage them)

By P. Michael Saint, Robert J. Flavell and Patrick F. Fox 

Once the land use consultant has gathered all of the information he needs to thoroughly understand the situation and the local laws and regulations applicable to the client’s goals, he begins drafting a campaign plan. The plan is designed to advance the client’s interests by organizing local citizens to influence their public officials to act the way the citizens want them to act, which is also the way the client wants them to act, though usually for different reasons.

Campaign plans are as unique as the situations that require them and the people who write them. The expertise and professionalism of the land use consultant tells him what political tactics would be useful, what strategies will be most effective, what public officials are empowered to provide the vote desired, and what groups and organizations may be relied on to take up the banner. Like the manager of an election campaign, the land use political consultant must understand the political lay of the land, the parties involved, and the forces at work. From all of these sources, he draws on his knowledge and experience to fashion a winning campaign strategy.

Are there existing groups the consultant can graft onto in building strength? Is the municipality likely to conduct multiple complicated hearings? Will the developer be expected to make presentations to local business and taxpayer groups? Does the status or history of the site present problems? Are there people near the project who would be particularly vulnerable to its impacts because of age, health, or condition (for example, children at a daycare center or nursing home residents) and who might need protection and  reassurance?

Does the zoning allow uses even more objectionable than the proposed use? Will mailings be an important factor, and, if so, how will they be printed and mailed and at what estimated costs? Should the citizen organization be designed to qualify for charitable status so it can conveniently raise money and appear independent? Will the organization need legal counsel at the outset, and, if so, how much money should be included in the budget for that purpose?

In preparing the plan, the manager will apply principles of politics and human nature learned through experience. He knows, for example, that a door-to-door neighborhood campaign is far more effective than a mass meeting, and not just because it demonstrates respect and deference for the residents and gives them an opportunity to air their concerns quietly. It also provides a measure of bonding: it’s difficult to publicly attack someone who has enjoyed coffee and polite conversation at your kitchen table. He also knows that people will act in what they perceive to be their own best interests, so he formulates a campaign strategy to emphasize those interests and focus citizens’ perception to nurture support (or opposition) in the coming land use battle.

And he knows that campaigns are not won without a political organization, so he will craft the campaign plan to build a strong grassroots organization to carry the message and change minds.

High on the list of elements in the campaign plan is the role of the citizen organization and related coalitions that the land use political manager will create, nurture, educate, and manage. The hub of the land use politics universe is the influence and credibility of local citizens exercising their constitutional rights and thereby influencing their local officials.

Finding Natural Supporters and Opponents

Natural supporters and opponents are people with innate or personal reasons for supporting or opposing a project. They don’t need to be sold either way, but they might not come forward and take a position if the political manager doesn’t reach out and encourage them.

Natural Supporters

The natural supporters of a project are those who believe they will benefit by or through it, directly or indirectly. Let’s take a look at a few so-called interest groups and see why they might be natural supporters.

• Parents and teachers support projects that they perceive will generate more revenue for schools: parents for the books, playground equipment, or additional teachers the money can provide, thereby reducing class sizes; and teachers for pay raises or extra help in the form of teacher’s aides. There are limits. Neither parents nor teachers will support a project they think will have a detrimental effect on the children or the schools; no amount of tax revenue will make them support a pig farm next to the elementary school. But they will seriously consider supporting other controversial projects (shopping centers, big-box stores, casinos, and power plants, to name a few), provided the projects don’t undermine their influence in town. Because developers of these kinds of projects know that tax revenues are important to many local constituencies (police, fire, and public works employees, to name three), they emphasize the volume of taxes the projects will produce.

• Building trades workers, such as electricians, plumbers, and sheet metal workers, support just about any development project for the construction jobs it will generate — provided, if they are union members, that the subcontracting jobs will be bid at union rates for union workers. This distinction is more important in some states than in others; trade unions are stronger in the Northeast and West Coast than they are in the South. But where they are important, unions can quickly become adversaries to developers who insist on right-to-work (nonunion) standards and rates, and their locally based members can become leaders of the opposition. In states where unions are strong, politicians are far more likely to side with the trades than with the developer, since union members vote.

• Service trade union workers support projects that will provide union jobs, such as operations personnel at unionized supermarkets: checkout clerks, shelf stockers, meat cutters, and so forth.

Many of these positions are held by twentysomethings and retired people, who often need goading from their shop steward to get involved, but they generally favor development that expands job opportunities or that may improve their lives, such as affordable housing.

• Town employees support projects that they believe will provide money for pay raises or other opportunities for income, or that will improve their quality of life. For example, a police officer knows that a project that creates a lot of traffic will need to hire off-duty police officers to direct traffic. A firefighter knows that a large project can be expected to offer enhancements to the fire department to demonstrate good citizenship. Town employees know that a project with high labor demands will offer part-time work that some of them might use to enhance their household income. There are limits to their support: they will support a bigbox store, but on the other side of town — not in their backyard.

• Business and taxpayer groups support projects that they perceive will help spread the tax burden and provide jobs. Business owners also support projects that they think will benefit their businesses: commercial developments that may do business with local merchants, offer them sales opportunities, or draw customer traffic to the neighborhood; or housing that may generate customers.

The local newspaper and radio station are businesses that may benefit from new development in the form of advertising; they should not be overlooked when rounding up support. Business and taxpayer groups especially like light industrial development because it’s usually located at the edge of town and provides jobs and taxes without bringing additional traffic to the downtown.

It’s also usually clean and quiet. Public officials also like light industrial development because it’s often welcomed, and it gives politicians an opportunity to take credit for bringing new jobs and taxes to town.

• Senior citizens generally support shopping centers because they have plenty of time on their hands and like to walk around enclosed malls, even if they don’t buy much. For the same reasons, they support projects that offer plenty of green space but not too much traffic, such as office and industrial parks. They also typically support senior citizen housing, assisted living complexes, nursing homes, and the like, for obvious reasons.

• Young marrieds and low-paid residents — including many municipal employees, people in food service, personal services (tailors, hairdressers, and barbers), and other service businesses — support affordable housing because their income limits their ability to live in town unless affordable housing opportunities are made available. Parents of such workers support such housing not only out of loyalty to their children, but also because they want to have their grandchildren handy for spoiling. They believe that their children should have the right and opportunity to live in the hometown in which they were raised and in which their friends live.

Natural Opponents

The obverse of natural support is natural opposition. The natural opponents of a project are those who believe they will be harmed by or through it, directly or indirectly. Let’s take a look at a few candidates and the projects they probably won’t like.

• Neighbors and abutters of a project, especially residential neighbors, are the foremost opponents because they are most directly impacted and bear the brunt of the downsides that projects bring: traffic, noise, fumes, light trespass, and so forth. They are also the most determined and strident; they see no reason why they should tolerate intrusion or why development should occur at the expense of their quality of life. Since they want no change at all in the neighborhood, they are usually not receptive to mitigation ideas unless the project is an improvement of an existing use (and the user has been a good neighbor) or the proposal involves a project that they would favor if it weren’t next door.

Sometimes, these neighbors can be convinced (or bribed) to curb their opposition, but not often.

• Old townies (who may or may not also be senior citizens) are opposed to projects that threaten to “ruin” the town’s character, which sometimes means the way the town looked in 1955, or 1975, or whatever year fits their nostalgic memories. A subset of the old townie group is made up of historic preservationists, who are also opposed but are more specific about it. They not only oppose change, but they also want to preserve buildings, forests, meadows, viewscapes, and other town features that they perceive as being of historic or scenic importance. What differentiates townies from the historic preservationists is that the latter often have the law on their side, as do other preservationist interest groups concerned with historic architecture, ancient burial grounds, archaeology, and so forth.

• In contrast to their support of shopping centers and senior citizen care facilities, senior citizen homeowners usually oppose public spending on buildings, infrastructure, or anything else that threatens to raise their property taxes. They see no need for such wasteful spending and needless tax increases, particularly if they are surviving on fixed incomes. Unless senior homeowners have grandchildren in the public schools, they will oppose new schools, and they also oppose new police and fire stations, and even senior citizen activity centers.

• Young professionals who have purchased a large home in a nice neighborhood and have (or want to have) kids and build a life are understandably opposed to any project they perceive will interfere with that dream. Unlike people in low-paying, relatively menial jobs, these well-educated and relatively well-heeled young people see themselves as on the way up. They feel empowered and entitled, and they see no reason to compromise their comfort or enjoyment by tolerating unwelcome land uses. Since they have a stake in the public school system, and since nothing is too good for their children, these “soccer moms and dads” support school spending and tend to be activists.

• Environmentalists and ecologists will oppose any kind of development if they believe the project will adversely affect their area of interest or interfere with their goals. If the project might have adverse environmental consequences, directly or indirectly, for people or animals and plants, environmentalists and ecologists will oppose it. Environmental activists are true believers in their cause, and they take particular umbrage when the object of their concern comes under attack right in their own hometown.

Nimby Wars was released on October 28th, and is available at the following fine booksellers: 

By Jeffrey R. Gould
Vice President & General Counsel, The Saint Consulting Group

The Massachusetts Appeals Court ruled last month that victims of retaliatory lawsuits cannot recoup their legal fees and expenses when the perpetrator voluntarily dismisses its suit before a court enters judgment for the victim.

The Court applied a strict interpretation of the so-called “anti-SLAPP” statute in ruling that attorney fee awards are only available if and when a judge makes a finding that the suit is indeed retaliatory. Connolly v. Sullivan, Appeals Ct. No. 09-P-597 (Feb. 23, 2010). The plaintiff in that case, the former Massachusetts Secretary of State Michael J. Connolly, had sued an abutter for $5 million in damages for challenging an affordable housing project being promoted by Connolly in Wellesley, Massachusetts. The abutter filed a Special Motion to Dismiss under the anti-SLAPP statute, but before the trial court ruled on the motion, Connolly voluntarily withdrew his claim.

 The statute was enacted to prevent real estate developers from filing specious lawsuits against their detractors in order to intimidate or quell opposition to their projects. The statute awards the victims of such suits their attorneys’ fees when successful. This ruling is troublesome for victims, because it gives developers a parachute to avoid the fee-shifting consequences of filing such claims.

Developers can now engage in the egregious conduct by filing the suit and forcing defendants to spend thousands on attorneys to draft the Special Motion to Dismiss.

The costs of preparing the Motion and presenting oral argument before the trial court could easily exceed $10,000, which victims will not be able to recover if the developer dismisses its suit before a judgment. The state legislature could correct this ruling by amending the statute to preclude voluntary dismissals while a Special Motion to Dismiss is pending.

Jeffrey R. Gould is vice president and general counsel for The Saint Consulting Group, email gould@tscg.biz, phone 781.749.7290 Ext: 7115  

By Nick Keable,
Vice President, UK Operations, The Saint Consulting Group 

Assuming that the Tories do manage to come out of the General Election in control of the UK, and that is by no means certain at all, they have this week laid out their proposals for reform of the planning system.  And it’s big.  And radical.  And scary.

Most scary of all is the introduction of third party rights of appeal.  This could be truly horrible for the development sector.  Labour flirted with the idea earlier this decade but backed off.  In Scotland, they came close but stayed sane.  Let’s hope that this is an idea that can be seen off  as a ‘sacrificial layer’ of their proposals.  But maybe not.  The Tories are now the party of NIMBYism.  They are no longer the party of business.  And their ‘localism’ mantra is the driver for this new found love for third party rights, so it may be hard to disabuse them of the third party appeal concept.

The second fundamental fear is the impact of yet another – the third – round of planning system reform since 1997; all policy certainty shot to pieces, council officers sucked out of development control and into policy making, not to mention the inevitable ‘planning by appeal decision’ which during any transitional period always occurs.

There would be winners and losers in this new system. 

The losers would be regional government (which would be abolished), potentially developers of major infrastructure projects (whose planning regime would once again be controlled by politicians) and frankly all other developers (who will be impacted by the sclerotic affect of any change to the planning system, as well as a more difficult planning regime at the end of it all).

The winners are many: LPAs (which gain lots more power), county councils (which are being given a role once again), NIMBYs (who will find it much easier to campaign against development) and, of course, planning consultants (who will have to help us mere mortals understand what the hell is going on)!

See here our bullet point summary of the Tories’ proposals…

Short Guide to the Main Proposals in the Conservatives’ Planning Green Paper

National policy

Human Rights Act – Replaced by a new Bill of Rights

New primary legislation – Local Government and Housing Bill, Queen’s Speech 2010

New National Planning Framework – Will include all PPS’, debated and adopted by Parliament

Use Class Order – Replaced by “flexible zoning” ie freely change use within a range

Planning gain – New ‘Single Unified Tariff’ slimmed down S106, graded on development size.  CiL to be abolished

All Killian Pretty recommendations accepted.  New Killian Pretty Review to look at expanding permitted development

Regional/sub-regional policy

All RDAs to be abolished – Consulting with GLA on London

All RSS’ to be scrapped – Perhaps quickly by executive order

New sub-regional policy – County structure plans return but now called Infrastructure Plans

Local policy

LDFs replaced by local plans – Must use ‘collaborative democracy’ process to consult

Time limit for adopting new local plans – Otherwise national planning guidance conformant applications will get automatic approval

Plan changes – Removal of inspectors’ power to change new local plans at inquiry.  Instead, inspector reports to SoS for breaches of national guidance, SoS to decide, then LPA amends and resubmits

Transitional arrangements – LPAs can cull disliked ‘imposed policies’

Architectural/design standards – Must be included in new local plans

New ‘duty to cooperate’ – For statutory consultees on new local plans

Incentivisation – Let LPAs keep council tax/business rates increase and match it for 6 years.  Additionally, LPAs will retain some of the new Single Unified Tariff

Development control

New third party rights of appeal

But only 2 grounds for appeal – “Procedure” (dealt with by Local Government Ombudsman) and “in contravention of LDF” (dealt with by Planning Inspectorate).  JR process as per now

Pre-application consultation – Mandatory ‘collaborative design’, by enquiry by design, charettes etc for larger projects

Objections – Significant number of objectors triggers conformity assessment of application

Neighbour compensation – Pay off your objectors.  Parish councils considered neighbours

Councillor interests – Change to ‘predetermination rules’.  Let councillors oppose development openly

Parking – National standards to be abolished.  LPA to decide local standards

Major infrastructure

IPC – Becomes ‘Major Infrastructure Unit’ within Planning Inspectorate

Major linear projects – Via hybrid or private Parliamentary bills

Ministers’ final decision – Set time limit for making decision

Residential

Housing targets – Abolished. Use so called “Option 1 numbers”

Affordable housing – Local targets set by LPAs (125% council tax incentive)

Density – Scrap PPS 3 targets

Back gardens – Changed back to greenfield from brownfield

Retail

Needs test – Reinstated

Competition test – Must be taken into account

Minerals/Waste

Strategic planning – RSS responsibilities back to minerals/waste planning authorities

Education

New schools – Automatic right of change of use to education

D1 land cannot change use – Unless Education Secretary allows

Appeals – Dealt with by new Major Infrastructure Unit

Wind energy

LPA keeps business rates of operational wind farms for 6 years

Community ownership to be explored

Discounted electricity for communities in local vicinity to be explored

Mobile phone masts

End permitted development rights – All masts must have full application

Previously discussed emerging policy that did not make it into the Green Paper

Abolition of LPA centralized performance targets, Planning Delivery Grant, application timescales

‘Merton Rule’ expansion

TIFs or bonds

Referenda for controversial projects – Petition of 10% of local electorate

Abolition of GoL – All powers to Mayor, GLA or London boroughs

Other relevant emerging policy not discussed in the Green Paper

Cease Government support for Heathrow 3rd runway.  Promote high speed rail

U-turn on empty business rates

Mayors for 12 large cities

Nick Keable is vice president for UK Operations, The Saint Consulting Group, email keable@tscg.co.uk, phone +44 207 592 7050

By Patrick Fox,
President, The Saint Consulting Group

A client recently asked me how to deal with an angry mob.  If you are confronting an angry mob of residents opposing your project at a public hearing, you’re not alone.  I can tell you it is happening across the US and Europe with greater intensity and frequency.  But what now?

If you have just walked into your public hearing and you are surprised by the level of opposition, you have made a number of mistakes.  The days when developers could cut a back room deal with officials and quietly walk through the local approvals process are long gone.  The politics of land use has changed.  Maybe you missed the memo.

 (Editor: Anthony Colavolpe is managing principal in the New Haven, Ct. office of Citron Group LLC, an international real estate and advisory services group. This article is reprinted  from Shopping Center Business, February 2010 © 2010 France Publications, Inc.)

 Site selection has evolved over time. Today, metrics can help you better locate — or relocate — stores so they have optimum performance.

By Anthony Colavolpe

A developer, investor or real estate broker can influence where to locate a store by participating in an appropriate site selection methodology with a retailer. Typically, site selection methodologies include certain basic elements. These, at minimum, involve the delineation of a trade area, determining the sales potential for a given retailer or use category, and the creation of a concept site plan. With these items in hand either the retailer or the person submitting the property for consideration can assist in advancing the selection process. The more information the retailer has the better, particularly if it validates something positive about a site or location.

Trade areas vary from retailer to retailer. Drug stores, for example, may look hard at 1-mile demographics, whereas a grocery store might expand their analysis to 2 or 3 miles when defining a trade area. Home improvement stores, discount department stores or various category killers may take a more regional approach. Regardless of the end user, the retailer carefully determines the area from which 80 percent or more of its business will be derived. Often brokers and developers will simply draw 1-, 2- and 5-mile rings around a site, obtain a myriad of demographic information from a recognized data source and submit this as part of a package to the retailer. While this certainly provides relevant information, it does not replace the retailer’s requirement to determine for itself a location’s sales volume potential and desirability. The retailer also may have access to customer spottings and other data not available to the general public, which can impact the boundaries of a trade area. In the final analysis, the retailer’s trade area will be more like an amoeba than a simple ring or circle.

Some retailers retain the services of firms who specialize in forecasting sales volumes. Others utilize internal associates or require the real estate representative to compile the requisite information.

There are various accepted industry approaches to sales volume forecasting. One utilizes analogs or information gathered from the operation of existing stores. This approach is based upon the theory that stores in similar locations with similar demographics and pricing models should yield similar results. Others are more scientific and are based upon either a regression or gravity model. Simply put, these measure the retailer’s ability to draw over distance, as well as other factors, and require an advanced level of expertise to develop.

This article is not designed to endorse one approach over the other, or to go into specific details on how each is developed. Rather, it is focused on the compilation of information, regardless of the approach. For example, most retailers need to know the amount of dollar potential for their use, how many people reside in a trade area, as well as other demographic particulars. Income levels, age, education, and ethnic makeup are always important. This type of information is utilized not only for sales volume forecasting purposes, but also assists the store operators in the creation of an appropriate merchandising plan. Successful retailers will want to merchandise the store so it is reflective of the trade area composition and satisfies their customers’ needs for goods and services.

If a trade area is dominated by one or more strong competitors, retailers may not be as interested in a location unless there is a void in the marketplace. It is hard to pull business away from a good operator. The location of the retailer’s own sister stores may also work its way into the equation. This is often known as cannibalization. Therefore, the impact of opening a store in close proximity to another store operated by the same retailer may become problematical. Generally speaking, there needs to be enough incremental dollars available (volume above existing business) to support the development of another store by the same retailer in the trade area.

Within the trade area, it is common for each competitive store to be analyzed based upon store size or sales area, sales volume and overall position in the market. Knowing this, as well as any proposed competition, is often critical to the sales volume forecast. The competitive information is sometimes further supplemented by an inspection of each store and its environs.

The overall sales potential for a particular use category is easily attainable from most vendors selling demographic information. However, defining the trade area itself requires someone to drive the market and determine how far a customer will travel before deciding to go elsewhere. For example, most supermarket industry studies list convenience as the number one reason someone selects one store over another. Drive time and distances are more important in dense or urban locations than their rural counterparts. Natural barriers, traffic congestion, and the highway system also play a role in the delineation of the trade area. If someone is not versed in these matters, it would be prudent to obtain the assistance of someone who is.

A concept site plan should be created by a licensed professional engineer knowledgeable about local zoning ordinances and other applicable land use regulations. A seasoned developer, investor or real estate broker can provide valuable guidance, particularly related to ideal building sizes, configurations, parking layouts and overall placement of these components on a site. Ingress and egress also need a critical eye, as does general traffic circulation, both internal and external to a property. If a customer has trouble parking, cannot easily get in and out of a site or has difficulty in approaching a location, in all probability, they will find another place to shop.

If executed correctly, the site selection process will result in a visit to the location. Depending upon the end user, this could include a number of participants ranging from the CEO of a company to the local real estate representative. Regardless of the audience, the person responsible for submitting the site and location information should be thoroughly familiar with each aspect of the trade area and offer to conduct a site ride. Driving the trade area from every conceivable angle is crucial, especially the day before a scheduled site visit. The last thing someone wants to encounter is a construction site or some other impediment without knowing in advance how to avoid this conflict.

No one wants to lose a deal because they did not understand the dynamics of the marketplace or the retailer’s needs and objectives. Those who win at retail development are knowledgeable about every aspect of the location and trade area in which a site is situated. Retailers will continue to do business with people who save them time and make them look good.

Additional reading on the subject of forecasting sales volume and methodologies is available in the book entitled Site Selection authored by John S. Thompson or Market Research for Shopping Centers edited by Ruben A. Roca.

Anthony Colavolpe is managing principal in the New Haven, Connecticut, office of Citron Group, LLC, an international real estate development and advisory services group. He can be reached at tcolavolpe@citrongroupllc.com.

By Owen Eagan,
Senior Vice President for Transportation, The Saint Consulting Group

Recently, the issue of transportation gained political undertones in Hawaii as the governor’s race started to unfold there (See “Honolulu rail project: political football or policy football?” http://bit.ly/aZeYY7).  Now, transportation has taken center stage in the Texas GOP primary race for governor, even becoming the subject of a “comparative” ad by U.S. Senator Kay Bailey Hutchison (See “Texas GOP primary: KBH promises to deal with transportation – mañana” http://bit.ly/bSl1n6).

Transportation projects can be among the most controversial land use issues because they not only involve NIMBYs, but they also usually require some form of public financing or subsidies.  Further, these projects become harder to justify when public resources are strained in difficult economic times.  Therefore, it is imperative that private sector interests seeking to develop large scale transportation projects do their political homework.

This includes conducting a political viability assessment to determine whether a project is feasible and, if so, the resources needed to ensure its approval.  Without building the necessary political support and giving politicians cover, you risk your project becoming the third rail.

Owen Eagan is senior vice president for transportation for The Saint Consulting Group, email: eagan@tscg.biz phone (818) 239-4769; http://tscg.biz/transportation

By P. Michael Saint, Robert J. Flavell and Patrick F. Fox 

Because clients accept their land use political consultant in the inner circle and share proprietary or sensitive project information, they are understandably concerned about confidentiality and security.

A professional land use political consultant who can’t keep a secret or who develops a reputation for double-dealing will not last long in the business. The good reputation of the land use political consultant is therefore the client’s best protection against disclosure.

Although a client can request a written confidentiality agreement, it is unwise to rely on such a document for protection because filing a lawsuit to enforce it would ensure that the confidential information the client is trying to protect gets into the newspaper. It’s far better to limit the list of people who have the information to those who truly need to know, and to remind them that the information is confidential.

Experience has shown that leaks usually come either from wannabe consultants who don’t appreciate the importance of sensitive information or from the client’s own in-house team. True industrial espionage is rare in the development business: the cause of the problem is usually to be found in the developer’s own nest.

A professional land use political consultant treats client information, as well as project information, as highly confidential. This applies as well to campaign plans and strategies, since opponents who have access to the developer’s war plans can easily devise countermeasures.

Experience has shown that most project strategy documents eventually wind up in the wrong hands, leading to the First Rule of Inevitability: never put in writing anything that you don’t want opponents to know. In political circles, this method of inscrutability is known as “the nod and the wink”: never write when you can speak, never speak when you can nod, never nod when you can wink. Melodramatic as that may seem, many clients want to keep their business (and their involvement in some aspects of some projects) quiet. That is why, in dealing with a client, a professional land use political consultant will generally work at the “C” level: chief executive officer (CEO), chief operating officer (COO), or chief financial officer (CFO).

A professional land use political consulting firm will go even further to maintain security. For example, the Saint Consulting Group’s invoices tend to be deliberately vague. A client who wants to see detailed bills to be certain that the consultants are actually on the job can have a detailed invoice faxed to the CEO to review (and shred if so inclined), while the less-detailed version is e-mailed to the accounts payable clerk. This approach is not intended to imply that the accounts payable clerk can’t be trusted, but does the client know the clerk’s friends or their affiliations? Does the client know whether the clerk’s sister works for the competition? Or is married to the vice president of the opponent? Would the clerk be able to distinguish between an innocent remark about work and disclosure of confidential information? He won’t have to if he’s not told. Why insert a needlessly detailed invoice into the client’s permanent corporate records, where it is discoverable should litigation eventually ensue, when it would be eminently useful to an opposing attorney to bludgeon the CEO on the witness stand?

Security procedures can be extensive, but they should go only as far as the client wants or needs them to go. Faxing materials to the CEO’s home, rather than to the office, is a common safeguard. So is a separate e-mail address through Yahoo, EarthLink, or some other provider outside the corporate network, so that every e-mail to and from the client does not wind up in a permanent corporate file.

There is nothing untoward in such practices; they are a first line of defense against snoops and those who would engage in corporate espionage. A government agency with a right to the information, or a plaintiff’s lawyer engaged in court-sanctioned discovery procedures, could easily secure the information if the need arose. But the world is full of busybodies and troublemakers with axes to grind; these procedures make it a little harder for them.

Defense clients are generally more concerned with confidentiality than are offense clients. They know that a leak at the wrong time can damage the citizen support group’s credibility and may encourage the competitor to launch nuisance litigation. Because of these dangers, defense campaigns are conducted sotto voce, with careful attention to detail. Keeping the identity of a client confidential even from the citizen group, making use of disposable cell phones, driving locally registered rental cars, staying in motels a few towns away, and being judiciously vague about the backgrounds of project managers are useful safeguards against prying reporters who would smell a story and nosy project opponents who would like nothing better than to embarrass the client and derail the project.

A citizen group has members who may not appreciate the consequences of idle chatter; it may include members who are spies for opponents or the client’s competitor. The less confidential information they know, the better. A citizen group also includes people who should not be burdened with information they will have to expose if ever asked under oath. Although the Noerr-Pennington line of legal cases holds that the funding source of project opposition is irrelevant (Chapter 8 explains the legal underpinnings of land use politics defensive tactics in detail), the opponent’s lawyer can still ask the question and require a straight answer. It is best for the client if the answer is “I don’t know.”

For biographical details on P. Michael Saint, Robert J. Flavell and Patrick F. Fox, click here) 

Nimby Wars was released on October 28th, and is available at the following fine booksellers: 

By P. Michael Saint, Robert J. Flavell and Patrick F. Fox 

An additional point, and an important one, is that land use politics methods work only for those who know how to use them. Many is the public relations operative who thought he knew how politics works, who barged into town full of ideas and threw his weight around, only to dash his client’s hopes. And many are the clients (and their corporate lawyers) who erroneously think they  know how to attract and keep project support. For example, one corporate lawyer insisted that the way to turn out favorable crowds was to hire clowns with balloons. He was serious and insistent. His client lost. Another big-firm lawyer spent so much effort trying to figure out the identity of Saint’s campaign manager that Saint killed his client’s project while the lawyer bumbled around playing Sherlock Holmes.

Clumsy amateurs create a mess, poison the well for future attempts, and destroy the proponent’s  credibility. Since they don’t foresee the consequences of their actions, they will use a blunderbuss where a feather would have done nicely. They hold contentious public meetings in auditoriums when a small friendly gathering over coffee in a neighbor’s kitchen would have been far more effective in curbing opposition.

Their inept efforts and statements reflect on the project and the developer. Amateurs destroy the developer’s credibility by making promises the developer can’t keep and by inaccurately describing project details that are vitally important to neighbors.

When the neighbors discover that the parking lot is twice the size described, they will never trust the developer again. Even if the developer withdraws the plans and tries to refile later, the damage has been done: people decide that the project is bad, and no amount of tinkering with the site plan will change their minds.

Amateurs also make enemies because they don’t understand the nature of politics. They burn bridges needlessly, force compromises that no one wants, and push their agenda to the detriment of the project and the client. In contrast, professional land use  practitioners are agile and surgical in their approach. In one case, a Saint project manager was able to organize coalitions of citizens to support the client’s supermarket proposal and get it approved while making sure that the same citizens vehemently opposed a competitor’s  proposal for a rival supermarket nearby. He completed his work and faded out of town unnoticed, like the Lone Ranger. In another case, a client needed help developing a site. Saint was in the midst of executing a successful strategy when the client advised the firm that he had a falling-out with the contractor and Saint’s assignment was now to kill the project. The team shifted gears, and the project was dead in a week. Because the managers in both these projects were professionals, expert in the delicacies of political maneuvering, each was able to respond effectively to the rapidly changing circumstances without missing a beat and delivered results for the client promptly and in full.

In another case, Saint’s customary review of legal notices regarding a client’s competitor’s project uncovered a procedural error that delayed the hearing, forced the developer to readvertise, and gave the Saint team time to convince city council members to switch their votes from supporting the project to opposing it. The project was voted down. In another case, a newly vetted Saint campaign manager beat an expansion of a big-box store, protecting three of the client’s stores, by finding a silver bullet: a procedural error in the proponent’s request for a parking variance that neglected to set forth the “hardship” required.

Because Saint’s managers in both these projects knew the local regulations and were attentive to detail, the client’s interests were protected.

One final case is worth mentioning: a Saint client telephoned one of the firm’s principals at home on a Saturday afternoon to report that he had just learned that a competitor was applying for zoning variances to build a competing supermarket across the street from his very profitable store. The hearing was scheduled for Monday. The client wanted the project killed, of course, knowing that he would inevitably lose a percentage of his customer base to a new store in a business that operates on 1 percent profit margins. Saint quickly organized an opposition citizen group to call town officials at home over the weekend, galvanized the subject neighborhood, and rounded up a large crowd of citizen opponents to appear at the hearing. The local newspaper reported “widespread opposition” at the hearing, and even though the proponent was represented by the go-to zoning lawyer in the area, the zoning board unanimously rejected the application.

Saint had killed the project in 48 hours.

For biographical details on P. Michael Saint, Robert J. Flavell and Patrick F. Fox, click here) 

Nimby Wars was released on October 28th, and is available at the following fine booksellers: 

For context, please note that some 85 percent of Britons oppose more development in their local communities, making Britain even more NIMBY than the USA or Canada, according to the UK Saint Index.

Julian Glover, chief leader writer of The Guardian newspaper, will chair the panel discussion, which includes: Dame Fiona Reynolds, director-general of the National Trust, Antony Oliver, editor of New Civil Engineer, and Jim Steer, a leading authority on transport.

Full details available here: http://www.21stcenturychallenges.org/focus/meet-our-panel1/

(Jeffrey Gould has written for The Saint Report about

By Jeffrey Gould
Vice President and General Counsel, The Saint Consulting Group

The group in Wawarsing, NY that is threatening to sue ShopRite because it filed a New York State Environmental Quality Review Act (SEQRA) lawsuit stopping Walmart from building, might want to think twice before filing it. The New York State Legislature, in 1992, enacted Civil Rights Law § 70-a and § 76-a to provide heightened protections for defendants in actions which involve public petition or participation, often referred to as SLAPP lawsuits, or “Strategic Lawsuit Against Public Participation” suits. Similarly, New York State Civil Practice Laws and Rules §3211 (g), also provides protection to the victims of SLAPP lawsuits. And attorney fees are usually awarded as sanctions to a successful litigant who proves that the lawsuit is a SLAPP suit. 

 Further, Shoprite and others like it that bring lawsuits stopping such developments, may want to consider doing so anonymously by funding the effort, but having citizen groups take the lead, to avoid the negative publicity that comes from blocking a competitor from getting its building permits. The Noerr-Pennington Doctrine, derived from two United States Supreme Court decisions, guarantees citizens their First Amendment right to petition the government for redress without fear of antitrust liability, and protects parties like ShopRite who fund such lawsuits openly, or even anonymously. 

 To read more about the threatened class action lawsuit against ShopRite, see The Shawangunk Journal

Jeffrey Gould is vice president and general counsel for The Saint Consulting Group, email gould@tscg.biz phone 781.749.7290 Ext: 7115