Land-use attorneys are the gymnasts of the legal profession. They have power, flexibility, and an uncanny ability to twist and turn the facts. But there are some traps of which you should be aware. Here you’ll learn about land-use traps and how to avoid them.
Unlike criminal codes, building codes are sometimes open to interpretation, as we have seen in Boca regarding open space. Cities have the ability to work around the codes by granting deviations, variances, or simply rewriting the code to achieve a certain goal.
Land-use lawyers must be experts in the codes that control development. They also need political savvy because their primary audiences are planning and zoning boards, and city councils. But sometimes their arsenal of tools includes traps to quell opposition.
I have great respect for land-use attorneys. Whether I agree with them, or not, they do an admirable job representing their clients. This is written as a warning to know your opponent and to be prepared.
Massing Illusions
There are usually several ways to develop a plot of land. Developers and their attorneys use diagrams to show how different projects would appear on the same lot. These are called massing models. Buildings are shown just as blocks with no detail. It is a legitimate comparative tool. But massing models can also strike fear in the hearts of residents when they hear the common refrain “we could build it bigger.”
For example, here is a massing model for a recent project. Notice yellow blocks stand for buildings but there are no surrounding structures or details.
To reduce opposition to the project, they also show several less desirable designs. These “bully buildings” as they are sometimes called, appear as massive monoliths. The goal is to make the actual proposal feel like a compromise, even when it still might be undesirable.
Avoid the trap
Talking about land- use traps and how to avoid them, don’t panic when they pull this trick. Just because they show alternates, doesn’t necessarily mean they can actually be built, or that it would survive staff review.
Ask these questions of each example.
- Is the “bigger version” allowed by code?
- Does it meet parking, open space, and setback rules? Many “max” diagrams quietly ignore these
- Is the floor area ratio (FAR) the same or different?
- Are they showing real context (adjacent buildings, park, streets)?
- Would independent planners or city staff agree with the comparison?
Setback Traps
Another technique to dissuade opposition involves setbacks, the distance between the proposed project, property lines, and existing structures. Depending on the locations, setbacks can range from zero in downtown streets to 100+ ft in major corridors.
For tall buildings, Boca requires additional setback based on height, extra distance from property lines, and offset higher levels. The rules to offset upper floors avoid a huge wall affect for pedestrians. But though a project fully follows setback rules it can still feel like it is over built, too close, or wall-like.
Avoid the Trap
Land-use lawyers can use setbacks as a cudgel. “Don’t like we are doing; we’ll move it even closer.” Sometimes this is just a threat because open space or other requirements. Remember, you can oppose any requested setback deviations.
You Signed It!
It is common for developers to protect themselves from future lawsuits. Not to be sued because of nuisances that buyers might experience later. There are several ways this is done.
The first, and most restrictive, is through easements. Normally, easements allow people or vehicles to cross a property. But using a “Collaborative Land Use Easement” (“CLUE”), a housing developer grants an easement to a building next door. This allows noise, dust, odor, vapors, or vibration to pass from an industrial building, for instance, across from the residential property. All buyers, and future buyers, must agree to the CLUE.
A less restrictive method, and better for buyers, is agreements such as this.
This protects the developer selling you the property. You cannot sue your developer over the impact of another project. Some lawyers flash this in front of you hinting that you have no right to oppose another project. But it does not legally protect the other developer. What it does is prevent emotional arguments which have no standing anyway, such as views, impact on lifestyle, or being too tall or close, as long as it adheres to code.
Avoid the Trap
You can still challenge it based on factors such as parking deficiencies, traffic impact, zoning compliance or approval process flaws. And you can still protest nuisances that go beyond what is allowed by code. What you signed does not force you to accept any project that a developer proposes. It just shields your developer from lawsuits.
WHO WROTE THAT?
When the rules can’t be ignored or broken with deviations or variances, there is a nuclear option. Just write new rules in the form of ordinances. To build Tower 155, for example, two new ordinances were written. One allowed it to be taller, the other to be on a smaller than required lot. Unfortunately, these ordinances set a precedent that resulted in many other huge downtown projects.
In some cases, ordinances are written by developers or lawyers and submitted to the city. There was nothing unethical about the city accepting an ordinance written by others. But they should be scrutinized for spot zoning or excessive giveaways from code.
Avoid the Trap
Watch for ordinances tailored to one specific project. Ask if it can be use as a precedent for other projects. Ask who wrote it.
If something questionable is discovered later, it is the city’s liability in most cases, not the author. However, the author could face liability, even civil suits, for misleading the city, falsifying traffic data, sunshine law violations, or any unethical side deals or collusion.
