A developer or property owner may have a permit application for a project that meets the criteria for the applicable regulations, and might receive approval from local government or environmental staff. At that point, the applicant thinks he or she is in good shape going into the public hearing with the city or county commissioners, only to walk in to commission chambers and discover a small army of citizens with identical t-shirts or “Save our Neighborhood” buttons protesting the application because they don’t want the development in their backyard — the dreaded NIMBYs (Not In My Back Yard). Developers need to be aware of potential conflict with a NIMBY group—and how an attorney can help.
Sometimes developers and property owners may not realize that despite careful work to meet all of the applicable requirements of local ordinances, they still may not get their permit approved if they are met with a groundswell of opposition from neighboring residents. The best way to deal with NIMBY opposition is to be prepared for it well in advance of the public hearing.
Early in the process, someone from the developer’s team (usually the attorney) should contact the district commissioner/council member to find out if he or she is in favor of the development. If so, and if the district commissioner/council member feels that he or she has been fully informed about the project, the process will run much more smoothly. If the commissioner/council member is not in favor of the development and in fact is strongly opposed, then the developer will know what sort of battle waits in the public hearing, and will need to make an informed decision about whether to proceed with the application.
From the beginning of a permit application, the applicant needs to find out if there is a possibility that the development could be controversial. The local government staff will often be aware of that potential. Questions need to be asked in the beginning of and throughout the application process. The city or county staff should be familiar with the local neighborhoods and grassroots organizations, and should know which organizations are most likely to have an issue with the development in question.
If it appears that an organization or neighborhood potentially may be opposed to the development application, the best course of action is probably to have a conversation with the group before the public hearing. Setting up a community meeting early in the process will allow the developer to become aware of and deal with possible objections on the front end. Some jurisdictions require one or more community meetings before a public hearing on certain development applications. Even if community meetings are not required, it is a good idea to be proactive and schedule a meeting, especially if the development is of significant size or impact.
At the meeting, it is best to be transparent about the proposed development plan. Neighbors want to know how the proposed project is going to impact their neighborhood. Allow the group to ask questions and answer them as candidly as possible. This dialog can be useful in meeting objections on the front end, and can lead to forging compromises in the beginning that can smooth the way for the future of the project. Transparency at these meetings can also help the elected officials. The district commissioner/council member should be invited to the community meeting, and should be kept informed of the substance of ongoing discussions with neighboring residents. If the commissioner/council member knows the developer is working on the process with the neighborhood or organization before the hearing, he or she will appreciate the proactive planning. Plus, it keeps the elected official well informed, and can smooth the way for the future public hearing.
These community meetings make the development’s approval much more process-oriented than legal-oriented. The meetings may seem time-consuming and expensive, but appellate litigation following a denial is much more expensive, as is an extensive delay to the project.
If a developer does get blindsided by an interest group in a hearing, the city or county officials may also have been blindsided. The first step might be to request a short recess to discuss options with the neighbors or the district commissioner/council member, which may or may not be granted. Alternatively, or as a next step while the meeting is going on, the attorney or the developer may identify 1-2 leaders of the protesting group, and try to work with them to define issues and discover common ground. The issue might be something as easy as a simple fix in the architecture of the development, or a resolution of potential traffic issues. The attorney may request that the application be postponed to another meeting.
A developer wants to have the best-case scenario to present in a hearing, but he or she should also have a fallback position for the bottom line necessary to make the project work. For example, how much density can the development give up and still make the numbers work? Are there architectural concerns that can be satisfied with permit conditions? In this case, it helps to know the elected officials. If there is a commissioner that is known for always wanting additional parkland, will your project be able to offer that and still make budget? If traffic-calming is another commissioner’s hot-button issue, can you change a traditional intersection to a traffic circle and still make your development plan work?
So what is the best defense against NIMBYs? The best defense is realizing that NIMBYs can pop up in almost any development application. Preparation from pre-application through the public hearing with an experienced professional will greatly improve your chances for success.