An applicant is denied approval on a project and sues. Neighbors oppose a new project and sue. Sound familiar?

Land use decisions are routinely attacked in court. As you develop your strategy to defend a decision, the defense of “standing” should be at, or near, the top of your list.

Standing tests the plaintiff’s legal capacity to bring the action. If a party lacks standing, the court does not have jurisdiction to hear the matter. As such, regardless of the merits of your case, standing should be carefully analyzed, because it may result in a quick and inexpensive win for you.

Municipalities are increasingly - and increasingly effectively - asserting “lack of standing” defenses to end lawsuits before they even get started. What is standing then? To have standing, a party must have a cause of action by statute; have a special injury or right; or have a substantial interest that will be harmed in a manner that is different from the general public.

In 2010, the Michigan Supreme Court established the standing test in Lansing Schools Education Association v. Lansing Board of Education. The Court held:

Where a cause of action is not provided at law, then a court should, in its discretion, determine whether a litigant has standing. A litigant may have standing in this context if the litigant has a special injury or right, or substantial interest, that will be detrimentally affected in a manner different from the citizenry at large or if the statutory scheme implies that the Legislature intended to confer standing on the litigant.

A sign company may have standing to challenge a height regulation enforced against its sign, but not other independent provisions of the sign ordinance without a showing of injury. A private party cannot sue to vindicate public rights absent some unique injury. General allegations of increased traffic or noise, for example, may not be enough to overcome this analysis. Even adjoining property owners may lack standing to sue.

Conclusion

When a lawsuit is initiated against your municipality, there may be a tendency to jump into an analysis of the underlying factual and legal merits of the case. While it is important to immediately begin an inquiry on the merits, it’s critical to determine whether the plaintiff has standing to bring the lawsuit in the first place. Convincing the court that the plaintiff lacks standing may be a quick exit strategy from an otherwise expensive and protracted lawsuit, and may entirely avoid an inquiry by the court into the facts of the case.