A Winning Formula for Permitting
- Think about how the request may impact government officials. Permit applicants need to be sensitive to how their actions can affect the government officials handling their requests. I remember one application that I worked on for an asphalt plant. Because of the isolated location of the site, I did not expect any opposition from the neighbors. Before our request came up for a hearing, however, I learned that the vice president of operations for the subsidiary that would operate the plant had already ordered the equipment, and it was scheduled to be delivered before the hearing would be held. I had a long talk with this individual and told him that I thought it was a serious mistake to have the equipment delivered before we received the necessary approval. I suggested renting space and storing the equipment off site until the permit was approved. My request was refused because the subsidiary did not want to spend the money to rent a storage site. Besides, went the argument, opposition wasn’t anticipated and the permit was expected to be approved without any trouble.
This line of thinking was only half right. When the request finally got to the decision makers, there was mp opposition and the request was approved. Unfortunately, when the plant was delivered to the site, it was plainly visible from the road that ran in front of the property. This made the planner handling the request look foolish to those he worked for in the county government. From his perspective, he felt it made him look like we had no respect for the county’s permitting process. As soon as the plant was delivered, his attitude toward us changed, and he threw every bureaucratic roadblock and delay he could in our path.
We ultimately prevailed, but it took an extra eight to nine months to get to the necessary hearing. Sometime afterward, the planner told me he had purposely delayed our project “to teach us a lesson.” I am sure that the time-value of the money lost for the delay greatly exceeded the nominal cost to rent a site and store the plant off site until the permit was approved.
- Keep copies of all the news coverage of your project. If a producer’s proposal to permit additional reserves is controversial, there likely will be a number of articles in the local newspaper describing the project as the hearing date approaches. I believe it is well worth the effort to keep all the articles and bring them to the hearing. You can almost guarantee that one or more of the opponents will stand up at the hearing and object, stating that they never heard of the project until supper time when their neighbor called them and suggested they attend the hearing.
The charge is always made that “those in power are trying to push this through without adequate public input.” Being able to respond to such a charge by showing the protestor all the articles serves two purposes. First, it takes some of the heat off the decision makers. While they are accustomed to hearing these charges, it is nice to have the applicant refute them, and it will win some points with the decision makers. Second, by immediately responding to such a charge and showing it is not true, the person making the comment (and perhaps others in the audience) is less likely to continue discussing your request.
- Arrange for experts to refute negative environmental documentation. Many government agencies are requiring an ever-increasing amount of environmental documentation. This documentation is frequently prepared by the agency staff or by a consultant hired by the agency (but usually paid for by the producer). If the conclusions reached in this documentation are negative, it is absolutely imperative that the applicant counters these conclusions with hired experts who testify at the hearing. Should this not be done and the matter ends up in a court before a judge, the record will show the negative conclusions, but there will not be anything in the record to counter the conclusions.
- Have the attorneys meet before the hearing. While some local decision makers are attorneys, the majority is not. Few things are as frustrating to the non-attorney decision makers as to be in a public hearing and have to listen to legal arguments going back and forth between the applicant’s attorney and the agency’s attorney. My belief is that your attorney and the agency’s attorney should have these discussions ahead of time. It allows the agency’s attorney to review and research your arguments, if necessary, and this can be done outside of an emotionally charged atmosphere such as a public hearing. Sometimes, you can convince the agency attorney as to the merits of your argument. This allows the agency attorney to prepare to discuss your request at the hearing.
- Obtain a copy of the government staff report. After all the plans, reports, and environmental documentation have been submitted, the governmental staff will prepare a report on your project for decision makers. You need to obtain a copy of this report as soon as it is available. Hopefully, the staff will agree with your request and recommend that the decision makers cast a favorable vote. If a recommendation is made to deny the request, however, you need to verify that the staff fully understood all aspects of your request. Perhaps there are modifications you can make that will cause the staff to alter its recommendation. Remember, decision makers most often vote in agreement with the staff recommendation. If you haven’t been able to get the planning staff to support your request, you have your work cut out for you.
- Send personal letters to neighbors who will receive notification of the hearing. Many agencies send out notices of the public hearing to property owners living within a prescribed radius of the property boundary. Notices that governmental agencies send out are usually very formal legal notices and may alarm people. Knowing your neighbors will receive a notice, anyway, some applicants will send a personal letter to each person scheduled to receive a notice. The letter will describe the request, provide the name and telephone number of a contact person who can answer questions, and offer to take anyone interested in doing so on a tour, etc. These letters can serve to ease fears, provide the neighbors with accurate information, and hopefully cut down on the number who will show up at the hearing to protest.
- Decide who will make the presentation. One decision every applicant for a land-use entitlement must make is to decide if an attorney will make its presentation or if the presentation should be made by the applicant or the applicant’s representative. My personal preference is not to have the attorney make the presentation. Having said that, I do believe you need to have an attorney advise you to ensure that all legal bases are covered should your request end up in court.
It has been my observation that many local decision makers are intimidated and much more cautious at hearings if a presentation is being made by an attorney. They will not ask as many questions and are less likely to attempt to work out compromises. But the main reason I believe the applicant or one of the applicant’s employees should make the presentation at the public hearing is the sincerity the applicant can bring to the presentation. This can never be matched by an attorney who makes these presentations for a living. Another reason I prefer not to use an attorney is that the attorney may have been before the same decision makers previously representing a client who had a very unpopular project, or who is in violation of a local ordinance, etc. While there should not be any connection between an attorney’s current and a previous clients, that prior relationship often weighs in the minds of the decision makers. As stated previously, decision makers are ordinary citizens, and they bring all normal human biases to their positions.
- Line up people to speak in favor of the project, but pre-screen them before the hearing. Whenever an application to permit additional reserves is controversial, the project proponent needs to line up people who will speak in favor of the project. If it can be arranged, representatives from a state agency such as the Department of Natural Resources or a similar agency who can speak to the general issue of the shortage of construction aggregates are particularly helpful. The representatives of these agencies are generally viewed as unbiased.
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