by Candace Cole Figa
When a developer is building a shopping center, office building, or parking garage, city or county approval of the project is required. A developer may find him or herself in an unfamiliar jurisdiction. The developer may not know what is important to the particular community in which he or she is dealing. In the past several years, I have helped businesses through this process. My prior service on a deliberative body (the Greenwood Village City Council) contributed to my experience for helping clients navigate these sometimes choppy waters.
While a developer may be very excited about bringing new businesses to an area, he/she may find that the local city council, county commissioners, or planning commission might not share that enthusiasm. After all, for example, the city council while eyeing the tax revenues that the development will bring into the city coffers, they are also elected by the residents and are the closest government to them. They are influenced by those voters and particularly those that show up to voice opposition or concerns about particular projects. A developer must not ignore these concerns.
Usually in a development project, the first step is to consult with city or county staff. They are concerned with technical compliance with local zoning and development laws in effect and whether or not the proposed project fits within the city or county’s comprehensive plan. Developers are required to give notice of proposed developments, zoning change requests, and the like, by way of posting signs on the property detailing the place and time of the public hearing on the matter, mailings to neighbors within a certain perimeter of the project, and publication of the same information in the local newspaper. Some governments require the developer to meet with surrounding neighbors. At this point, a developer may
be able to predict whether or not the project will be approved. On the other hand, a developer may not depend on the indications that there is little or no opposition until the project is actually before the city council or county commissioners. The governmental body may have concerns or sensitivities of which the staff or even the neighbors are unaware. In other words, “it’s not over until it’s over.”
At the public hearing, the staff will present its findings and usually recommend a course of action which may be approval, conditional approval, or denial of the proposal. Then the developer will be asked to present the project. Sometimes the developer does the presentation, sometimes the architect, and sometimes it’s their lawyer. Whoever it is, must be fully prepared to explain the project, address any staff or neighbor concerns, and certainly be cordial, even in the course of tough questioning or criticism. The compatibility of not only the project but also the developer is a concern. In other words, “is the developer a good neighbor?” On occasion, what a council or commission requests makes the project financially less feasible. It is often a matter of aesthetics and requires creative thinking to make it a win-win for both the developer and the city or county.
An example of a recent project that I helped take through this process involved a national company which wanted to consolidate its local work force into one location. The building could accommodate the number of workers but did not have enough parking spaces. The business was a good fit for the community because its workers would occupy the building during normal working hours. Part of the problem was that the building had been vacant for a few years and the neighbors got used to not having additional workers or the traffic they generated. A portion of the opposition was based on this alone, but the real protest to the project came with a proposed parking structure. The existing condition was a surface parking lot. The new project included a one-story garage, obscuring the front of the building and becoming the view from the windows of many high-end residential neighbors. These are the people who attended the public hearing and objected to the project. The project was defeated 4-2.
At that point, I was hired to quickly help find a solution to the problem because the tenant had a timeline to relocate its workers based on the expiration of other leases. With my familiarity of the area, I knew that a parking garage had just been built a block away and that the aesthetics of having a similar structure so close was objectionable. We met with the neighbors and took detailed note of all of their concerns. We also met with city staff to discuss options. There was talk of relocating the garage to the other side of the building, away from residential neighbors, but that was not a good choice because of utility location, the size of the space, and the obstruction of western views from the building itself. The idea of sinking the garage underground was proposed. For many developers this would have finished the project because of the added cost. This, however, became the most plausible solution. It addressed the concerns of the neighbors and the council about the aesthetics while giving the tenant the additional parking spaces. The new structure, accommodating almost twice as many cars, would only extend a foot or two above the sight lines of the old surface parking. Plans were redrawn and presented again to the neighbors. This accomplished everyone’s goals. The neighbors, the staff, and the council were pleased with the proposal and also appreciated the attempts by the developer, through me, to work with the community to find a win-win solution. The project passed unanimously.
Burns, Figa & Will, P.C., has many lawyers who have been involved in land use issues from working with local governments like I do, to working on environmental compliance and water issues. We would like to help you if you or someone you know faces a situation in which it must go through a governmental process to achieve its ultimate development or leasing goal.
Candace Cole Figa is a shareholder with the firm. Her practice includes litigation and trials of business, contract, commercial and real estate matters, personal injury, products liabililty and insurance law and land use planning. For more information contact Candace Cole Figa at 303.796.2626 or e-mail .
