Lessons Learned from a Land Use Lifesaver

Adam Baugh is a partner at Withey Morris, PLC where has been practicing land use and zoning law since 2007. Credit: Withey Morris, PLC

By Adam Baugh for Withey Morris PLC 
At the beginning of COVID, when the world suddenly halted in March, my children and I decided to build a bike shed. 
It was a great time bonding with my daughters, but the end product looked nothing like the fancy shed we intended. Corners weren’t square, hinges didn’t close evenly, and several wood boards were warped. I enjoyed the family time, but at the end of the day, I really wished I had hired a professional to construct it, or at least help us build it with quality plans.  
This experience reminds me of the many times I’ve been asked to rescue a zoning case from a frustrated owner/developer after they’ve tried using a “rent-a-planner” to do the work and quality of a seasoned land use attorney. While I certainly understand budget and cost efficiencies when entitling a project, like my shed experience, in most cases the client will end up spending more on the task and often obtaining inferior results. 
A recent experience comes to mind when I was asked to take over a zoning case another person had worked on for over a year and that was ultimately denied by the city council. Eight months later, we were able to secure unanimous approvals from city staff, the planning commission and the city council. The difference was in the relationships, strategy and experience needed to create a plan that worked for neighbors, staff and the politicians. 
One common item we often are asked to fix is self-run variances and use permit applications started by architects, engineers and other rent-a-planners. While they seemed capable initially, a denial by the zoning adjustment officer is often fatal to the case. At that point, an appeal to the Board of Adjustment is a last resort and a proverbial Hail Mary. These types of applications require skill to prove a legal test and tact to understand the tendencies and leanings of the hearing officer. People hire us because we regularly present in front of these boards and commissions. 
Another item we take over are plats, lot combos, and minor land division applications that were started by an engineer. While there is certainly a role for an engineer in drawing the exhibits and legal descriptions, they are not a multi-use tool. Are you really going to trust your engineer to draw up the necessary transfer deeds and easements to properly achieve the result, or worse, hire a general attorney with no specialized experience in land use? 
Proper due diligence is another area where we regularly see mistakes by out-of-state companies who prepare Planning and Zoning Reports. It still baffles me when sophisticated developers spend tens of millions of dollars on a project yet choose to save $200 to hire somebody in Oklahoma to tell them the zoning history for a site in Scottsdale. While the PZR may confirm the current zoning and applicable regulations, there is no way somebody in Oklahoma can tell you the political sensitivities of the neighborhood, the council makeup, the staff tendencies or even the full site plan and zoning history (especially the cases that were filed but never fully approved). 
Some final items we often get asked to take over and fix include permit expediting, site plan approvals, technical appeals, signage, and zoning interpretations.  
Frankly, in all matters involving city hall, it would be wise to hire a land use professional who has the city relationships to tackle tough issues, the knowledge to work around roadblocks, and the experience to lean on when the entitlement effort seems futile. And like my shed example above, proper guidance from the beginning will help you avoid spending more on the task and obtaining inferior results at the end. 

1 Comment

  1. Adam, as a long time civil engineer, I can appreciate your candor and perspective about having the right people on your development team. It can make a world of difference in the success and speed of a project. Thank you for the insights!
    Jeff Wimmer
    East Valley Engineering Resource

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