Real estate development projects are filled with uncertainty. Zoning and permitting denials, disputes with neighboring property owners and citizen groups, and ambiguity in development contracts can cause significant setbacks to even the most well planned developments. This webinar will explore the many pitfalls of the development process and how to navigate them. Four Polsinelli attorneys offer their guidance and insights gained from litigating these very types of issues.

1. Lessons Learned from Litigating Real
Estate Development Projects
Presented By: Philip W. Bledsoe, Colin C. Deihl,
Kelly D. Stohs, David P. Vallas
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2. Topics
 Defeating land use challenges and appealing land use denials
 The illusory protections that zoning ordinances and approvals provide
against liability
 Settling land use disputes in the public context, and what makes them
unique
 The usual suspects leading to litigation in development deals, such as best
effort, time of the essence clauses and “side deals” or oral “amendments”
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3. Defeating Land Use Challenges &
Appealing Land Use Denials
Presented By:
Colin Deihl
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4. Stakeholders
Be ready for the impact
on your brand
Be ready for how this will
translate to your consumer
Be ready for what
could be said
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5. Early Assessment
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6. Legal Guideposts
Government’s Position Legal Boundaries
Improper Conditions
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7. Changing Guideposts
New Zoning Code Amendment of a Zoning Ordinance
New Development Plan
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8. Going to Court
Type of Claims to Bring Expedited Timing
Discuss vs. Claims
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9. Additional Evidence
FOIA and State Analogues Sunshine Laws
Depositions & Other Discovery
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10. Judicial Review
Has governmental body exceeded its
jurisdiction; or abused its discretion; or
applied an erroneous legal standard?
Government decision will be upheld unless
there is no competent evidence in the
record.
Courts defer to agency -- abuse of discretion
standard
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11. Types of Decisions
 Variances
 Use by Special Review
 Subdivision application
Planned Unit Development
Site Specific Rezoning
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12. Basis of Claims
 No record evidence
 Failure to apply standards
 Illegal conditions or exactions
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13. Declaratory Judgment
New Zoning Code
Subdivision Regulations
Comprehensive Plan
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14. Examples
 Exceeds authority
 Regulatory taking
Unconstitutionally Vague
Procedural Violations
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15. Scope of Review
 De novo review
 Court does not need to defer to agency
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16. Illusory Protection Zoning Ordinances
& Approvals Provide Against Liability
Presented By:
David Vallas
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17. Competing Goals
Goal of Zoning and Land Use Approval Goal of Civil Liability
Not Always Aligned
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18. State Law Claims
Trespass
Nuisance
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19. Types of Approval
Municipal approval
– Cannot bypass State law by obtaining a local
municipality’s approval of a development.
– Fact that zoning allows such activity does NOT
necessarily stop such activity from being
considered a nuisance.
 Too much noise or pollution from an entity
can still allow action for nuisance even if the
area is zoned industrial.
Statutory approval
– Various laws have passed to prohibit actions
based on nuisance for various activities the state
determines are worthwhile.
 Typically applies to agricultural activity.
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20. Available Remedies
Injunction
Damages
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21. Timing of Third Party Claims
Need more than issuance of a special use permit.
– Must be some actual development.
– Fear of a future nuisance which has yet to occur cannot justify an immediate
filing of suit.
– Prompt work may defeat the claim.
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22. Settling Land Use Disputes in Public
Context, and What Makes them Unique
Presented By:
Kelly Stohs
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23. What Makes Settlement Unique
Protecting the Public Interest No Contract Zoning
Zoning is an exercise of a governing body’s police power.
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24. Applicable Law
General contract law applies.
Informal communications may constitute
an enforceable agreement
– Even if a more formal contract is
contemplated
– Where material terms were agreed upon
and the communications evidence the
intent of the parties
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25. Protecting the Public Interest
Settlement agreements with a governing
body
– Cannot be agreed upon in executive
session of the governing body
– Must follow other applicable laws,
including public hearing requirements, to
protect the public interest
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26. No Contract Zoning
Where the resolution involves the
submission of a new or revised
application:
– The Agreement must be consistent
with the requirements of local law
– Follow the procedures for notice to
the public
– The governing body generally cannot
agree to any certain outcome.
Thank you for submitting
your application.
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27. When the settlement involves
submission of a revised or new
application
– Specify developer or landowner’s
remedy in event of delay
– Anticipate how conditional
approvals will impact the settlement
– Specify that the lawsuit will be
dismissed only upon issuance of the
requested permit
– May need to request a stay or
extensions of time from the Court to
keep lawsuit pending until final
resolution.
Anticipating Outcomes
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28. Usual Suspects Leading to Litigation
in Development Deals
Presented By:
Philip Bledsoe
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29. Best Efforts
 Equal to commercially reasonable?
 More than good faith?
 What happens when the efforts
are not successful?
 What happens if there are no
efforts?
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30. Time of the Essence Clause
 Not the same as a drop dead date.
 Look at entire deal.
 Problematic if seeking forfeiture.
 Using it to rescind easier.
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31. Addressing Usual Suspects
 Context matters.
 Often a problem of fit to the
project or deal.
 A special problem of admissibility.
 Say what you want and mean in
the contract.
VS.
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32.  Is there even such an animal?
 Is it less of a deal?
 Could it be misrepresentation?
 Is it a good deal or a self-dealing?
“Side” Deals
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33. Documentation Dilemmas
 Oral “amendments”
 “We can do that later.”
 The “E” in email stands for evidence
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34. Polsinelli provides this material for informational purposes only. The
material provided herein is general and is not intended to be legal advice.
Nothing herein should be relied upon or used without consulting a lawyer
to consider your specific circumstances, possible changes to applicable
laws, rules and regulations and other legal issues. Receipt of this material
does not establish an attorney-client relationship.
Polsinelli is very proud of the results we obtain for our clients, but you
should know that past results do not guarantee future results; that every
case is different and must be judged on its own merits; and that the choice
of a lawyer is an important decision and should not be based solely upon
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© 2016 Polsinelli PC. In California, Polsinelli LLP.
Polsinelli is a registered mark of Polsinelli PC
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