The job of representing real estate developers and owners in front of municipal land use boards and commissions presents lawyers with unique challenges that do not often exist in the courtroom or the boardroom. The public land use review process can make lawyers and their clients susceptible to some common legal and interpersonal pitfalls.

Here are some common legal traps, as well as some tips and tools for effectively making your case when representing a client at a municipal public meeting.

1. Know the Rules

Although most municipal public meetings are quite similar, many boards and commissions have different rules of procedure. Make sure you check these rules and are familiar with them at the outset.

Key things to look for include submittal deadlines, application fees, how application acceptance is handled, types and specifications of plans that must be submitted, required prehearing meetings with other municipal boards and commissions, presentation order and formats, time limits on presentations, quorum/voting requirements, and standards for member disqualification.

2. Tell Everyone

Many municipal board applications are reviewed and considered at a public hearing. So that all parties affected can be heard, it is important to make concerted efforts to provide notice of the hearings, when required. Common notice requirements may include newspaper publication, mailed notice to abutters, and/or signs posted on the subject property. Statutory notice requirements vary by state, and municipalities may have their own additional notice requirements, so clarifying the requirements in advance is imperative. Though it can be difficult to figure out who is entitled to notice, it is better to err on the side of giving notice. Failure to provide required notice constitutes a jurisdictional/appealable error and potentially renders a board’s decision a nullity.

Additionally, more states and municipalities are adopting environmental justice regulations, which often require additional notices or public hearings for projects located within designated environmental justice areas. Check whether your municipality has environmental justice regulations and be sure to follow any applicable requirements.

3. Think Local

With large-scale developments, the emphasis throughout your presentation should be on how a development benefits the local neighborhood and the wider community. A land use board must cooperate with an applicant in the development of property, but it also wants to ensure that large-scale developments benefit the community. Make certain those themes resonate throughout your entire team’s presentations.

Engaging an expert to prepare a fiscal impact study may also be worth considering and can be very compelling. Also, engaging experts to demonstrate how a potential project’s impacts on neighboring properties are being mitigated (e.g., traffic, noise) may be of paramount importance, if not already required by local regulations.

4. Keep it Simple

Keep in mind that most board members are volunteers and nonlawyers. Your presentation should be logical and concise and tailored to your audience, not to a court of law. Use visuals to support your presentation. Sometimes, a picture (or plan, or rendering) is truly worth 1,000 words.

5. Extend the Hearing

If your project will require multiple public hearings, it is preferable to extend the meeting to a specific date and time, which is announced during the hearing being continued. If you fail to do so, some states require new abutter notification. Extending the hearing is also preferable when the board asks for additional information, or members of the public bring up insightful, relevant concerns. Better to extend and provide that information so that your application record is complete, than risk a denial for failure to do so.

6. Know the Board

Remember that many board members are professionals in other areas — engineers, architects, landscapers, fire or police, business executives, bankers, or residents who work as municipal officials in other towns.

While they may not understand the law, they will know instantly if your presentation is lacking with respect to their area of expertise, and they will call you out. Knowledge of the professional experience/backgrounds of board members can be helpful.

7. Understand Board Size and Quorum

It is not unusual for municipal boards to conduct business with enough members for a quorum but less than a full board. For example, a five-person planning board might proceed with four voting members, if four people are enough for a quorum. For most approvals, a majority vote of the voting members is needed.

There is a difference between a four-person board and a five-person board in the percentage of votes needed for approval, which can have a significant impact on the likelihood of success.

If the simple majority vote rule applies, and five planning board members are sitting, then three votes (60 percent) are needed. Two people could vote no, and your client would still receive approval. If four board members are sitting, three votes (75 percent) are still needed. Only one person can vote no. Discuss with your client whether he/she would be better off waiting for a vote from a full board for a final vote.

Keep track of which board members attend each hearing. In some states, the same board members need to be present for each hearing date, and in others, board members who have missed one or more hearings can familiarize themselves with the materials and state that they have done so on the record before voting. Also, remember that a request for disqualification of a board member due to a potential conflict of interest must be made at the earliest possible opportunity. If you fail to do so during the local land use process, you may have lost your right to make that argument on appeal.

8. Use Technology Wisely

Illustrate your project with colored plans, photographs, renderings, materials, and color samples, even models of sites and buildings. Likewise, if done well, computer simulations are especially effective in illustrating architectural and landscaping features from different points around the property. They are also effective in demonstrating traffic impacts.

Technical capabilities may vary, so check your screen and audio capabilities if you intend to rely on any electronic materials in your presentation.

Of course, in today’s day and age, understanding your technical capabilities may also include understanding the details for a virtual municipal meeting in some jurisdictions. Be sure to ask staff, in advance, how the meeting will run. For example, will the applicant team need to be added as a panelist? Will you be allowed to screen share? Internally, you’ll need to decide who runs the presentation and how. Knowing these details in advance will ensure a seamless virtual presentation.

Again, test your technology before go-time. If your meeting is virtual, log on early, and ensure your team does the same. Nothing is worse than relying on, or promising an effective simulation or presentation, then finding out you are unable to deliver it.

9. Be a Spectator

If you have never appeared in front of a particular board, find time to watch it in action. You may be able to accomplish this by viewing recordings of prior meetings that are available online. Find out which board members seem most influential and which ones have particular areas of concern they deem important in any project (landscaping, environmental issues, traffic, fire protection, etc.). Get a feel for how the chair runs the meeting, and whether the board readily defers to town staff. Knowing in advance whether the board’s attorney attends the meeting as a matter of course can also be helpful in the event sticky legal questions arise.

10. Visit the Site

Never represent a development without visiting the property and the development area. It is embarrassing when a board member asks a question about the property or the area around a project, and you don’t know the answer because you have never been there. Make sure any experts or consultants who will be testifying on behalf of the project have been to the site as well.

11. Supplement the Record

Judicial review of a municipal land use decision is generally based on the certified record of the proceedings below. The rules of evidence do not apply at these municipal hearings, so lawyers should take full advantage of the opportunity to submit as much supportive information and materials at the local level as is relevant. This will help create a solid record and help “bulletproof” an application from legal challenge.

12. Listen More, Talk Less

Listen to criticism and take it to heart. Our knee-jerk reaction to criticism of a client’s position is to defend (zealously). Often, a board member is making suggestions that will ultimately gain that person’s vote, and in many instances, they are suggestions that the project can accommodate. A board needs to feel it has been an effective part of the development process.

Similarly, exercise patience in responding to criticism. Sometimes, a member of the public or board member will offer criticism, and another board member will effectively refute that criticism without your help, if you can resist the urge to jump in after every comment.

Listen to comments and questions posed by members of the public as well, and respond when appropriate. Doing so will strengthen your application and build your record for appeal, if necessary.

13. Know Your (Vested) Rights

One risk that developers face is that zoning and other regulations could change during the review or appeal process. There are some statutory protections available to developers to mitigate this risk and to “vest” their projects against regulatory changes. The stated purpose of these protections is to prevent municipalities from amending local land use regulations for the purpose of stopping proposed developments while an application is under consideration. This is an important and often misunderstood aspect of the planning process.

14. Don’t Miss Deadlines

If your client wants to appeal a municipal land use decision, understand the applicable appeal deadlines, and do not miss them.

These appeal periods are hard deadlines and missing them means your client has lost the opportunity to appeal.

15. Watch for Other Challengers

Your client isn’t the only one who might want to appeal the decision. Typically, any person who is “aggrieved” by the decision can take an appeal, but just because someone is opposed to the project doesn’t make them aggrieved. Understanding aggrievement standards in your jurisdiction is key to challenging a would-be appellant’s right to appeal, and they can be a powerful tool for dismissing appeals early and getting your client’s project moving.

16. Stop Means Stop

There are certain instances where the proverbial door closes. For example, the close of the public hearing may preclude the board or commission from receiving further evidence from certain parties. The filing of an appeal can provide another firm stopping point, marking the start of the formal judicial process.

In some states, the judicial process stays all approvals, but in others, applicants may proceed with the approval at their own risk. Understanding an applicant’s rights during an appeal is important and may provide some leverage in negotiating a settlement of a pending appeal.

As you can see there are many ways to prepare for a successful hearing. Our attorneys have many years of experience and are skilled at navigating these complexities and are available to assist in your preparation.