A Winning Formula for Permitting
- Be polite. If your application is controversial, you probably have lined up a number of employees and supporters to attend the hearing on your behalf. It is very important that these people sit quietly and not talk during the discussion preceding your items. If your employees sit in the audience talking throughout the proceedings, it sends a very negative message about your company to those voting on your request. Several years ago, I sat in on a hearing of one of our competitors. The applicant’s supporters had to be asked several times by the Chair either to be quiet or leave the room until their item was heard. Our competitor’s request was turned down unanimously.
- No joke, don’t smoke. Most public agencies do not allow smoking in governmental buildings. Even if smoking is allowed, wait until you can do so outside during a break. Smoking may be offensive to one of the decision makers whose vote you need for approval.
- Know when to stop talking. In many jurisdictions, the agency staff will discuss the application and give the decision makers its recommendation before the applicant or the public speaks. If you are fortunate and the staff has recommended a positive vote on your request and you have been able to work things out with your neighbors, you should consider a very limited presentation and to let the decision makers know you and your consultants are available to answer any questions they may have. This assumes that your attorney agrees with this strategy and your application has all the material needed for the record, should the matter go to court.
There are times when people can say too much at a hearing. I remember one hearing where, after a brief discussion, a motion was made and seconded to approve the requested item. Rather than sit down, the applicant said that he just wanted to add one more thing. His comment raised a question. The answer to that question raised several other questions. About 30 minutes later, the motion was withdrawn and the applicant was unanimously turned down. The applicant literally talked himself out of his request.
- Start off on the right foot. Before the hearing starts, I think that it is a good idea to say hello and shake hands with your opponents even if you know they are there to oppose you. Your gesture will help keep the atmosphere civil.
- Stay calm. It is very important not to get emotional during your presentation. In many controversial hearings, the opponents will frequently get loud and argumentative. If you can retain your composure, you can set the tone for the hearing. It also draws a sharp contrast between you and your opponents who do get loud, unruly, etc. If a decision maker is on the fence, that contrast may be the thing that brings him or her down on your side.
- Target the leader. Having attended several of the decision makers’ meetings before your proposal is on the agenda, you can identify the most influential member of the group. Don’t forget to focus your presentation to that person.
- When necessary, offer proposed concessions. During your presentation, remember to let the decision makers know that you sought input from neighbors and made a number of changes to your plans to incorporate community concerns. Under certain circumstances, you may feel the need to make additional concessions before the hearing in order to get your project approved. I faced such a situation a number of years ago when trying to permit a landfill that the adjacent neighbors opposed. I met with the local elected official and proposed steps the company was willing to take. At the hearing, the elected official proposed these steps as additional conditions. He never mentioned our meeting and made it appear that he thought up the steps I had proposed. In other words, he took credit for the proposal. That was fine. He got the credit, I got the permit.
- Don’t threaten litigation. At the public hearing, never threaten decision makers to go to court if they don’t vote your way. They have heard those threats many times before. For the most part, just about the only time judges overturn local decisions is when the decision makers have made procedural mistakes. They are rarely overturned for other reasons. The decision makers know that an applicant who is turned down can always file a lawsuit. You don’t need to remind them of that fact. Doing so just hurts your chances for approval and may actually cause someone who planned to vote for your request to vote against you.
- Be honest. After an applicant has made a presentation, it is customary to allow the decision makers to ask questions. Every person representing the applicant must remember one cardinal rule – do not lie! To do so can ruin your credibility with the governmental staff and decision makers forever. A personal example can best illustrate this point.
Within a month of being elected to my local city council, a controversy erupted concerning a large manufacturing facility located in an adjacent city. A group of people within our community (including a number who had been active in helping me get elected) wanted the council to intervene in a lawsuit that was filed to force the facility to place environmental controls on its equipment to reduce air emissions. Before we made a decision, we asked a company representative to come to a council meeting to address the issue. The council was told that technology did not exist to meet the requests of the citizens who filed the lawsuit. Based on that testimony, I voted not to intervene in the suit believing the action requested infeasible technology. My vote disappointed a number of my supporters who had helped me get elected just a few weeks before the vote. It also turned out that my vote was the deciding one in a 3-2 decision to not intervene in the lawsuit.
You can imagine my shock and disappointment when 10 days later, an article in our local newspaper indicated that the company had agreed to place the very controls they told us did not exist on their equipment. The same company spokesman who addressed us during the meeting was quoted in the paper as saying that the company agreed to the request “to avoid the expense of going to court.” It was a good thing for the company that it never had another item come before the council while I was involved in the city government. I would have never believed anything its spokesperson said.
- If in doubt, stall. Near the end of the hearing, you should have an idea as to whether you will receive a favorable vote. If you think the vote will go against you, consider asking the decision makers to continue the item so you can meet with your opposition one last time in an effort to work out a compromise. This is important because once a formal vote is taken and your project is denied, it is very difficult (from a political standpoint) for the decision makers to reverse themselves – even if you submit a new proposal that is drastically limited in scope. Conversely, if you think you have the necessary votes and neighbors try to get the vote delayed, you will want to argue against such a delay.
- Thank the decision makers for their time. Finally, at the end of your presentation and again at the end of the hearing, don’t forget to thank the decision makers for the time and attention they have expended on your item. You need to do this even if the vote went against you. Remember, you may well be in front of the same group sometime in the future. If you storm out of the hearing room after being turned down, the decision makers will remember that when you find yourself in front of them again within six months or a year.
- Be a gracious winner. At the conclusion of most controversial public hearings, the applicant and those who supported the request tend to gather in one room outside the hearing room. The opposition group generally tends to gather nearby. If you have been successful in your request, this is not the time to celebrate, and it is not the time to gloat over your victory. This is the time to be a gracious winner. Go over and shake the hands of your opponents. Let them know that you were serious when you told the decision makers that you will conduct a superior operation. Tell the leaders of the opposition group that you will call them within seven to 10 days to get meet and see if there is anything else you can do to alleviate their concerns. When you meet with the group later, take along the person who will be responsible for running the operation. Doing so will pay dividends for years to come.
- Know the appeals procedure. If the appointed decision makers rendered your approval, local ordinances will provide a mechanism for appeals to elected officials. Make sure you are familiar with the rules of how appeals are to be made and the time limit your opponents have to file an appeal. For instance, a local ordinance may state that an appeal must be in written form and filed with the city or county clerk within 10 business days of the decision. In such a case, you or a representative of your company needs to be at the clerk’s office at the close of business on the 10th business day after the decision to approve your project has been made. That will ensure that if the clerk tells you that no appeal was filed, you will not be notified several days later of an appeal. Also, pay particular attention to ensure if an appeal was filed that the proper procedure was followed.
One of our competitors won a major court victory on this point several years ago. It was successful in getting a major expansion of reserves approved by the appointed decision makers (planning commission) in the city where it operates. The city’s ordinance provided that only someone who testified at the hearing could file an appeal. In this case, the mayor was at the hearing, but did not speak. He filed an appeal and the city council subsequently overturned the planning commission’s approval. Our competitor went to court and the Court of Appeals agreed with the company that the appeal was invalid since the person filing the appeal (the mayor) did not actually speak at the hearing. Therefore, the appeal and the subsequent city council vote were declared invalid, and the planning commission’s vote to approve the project was upheld.
- Send a written thank you. Finally, even though you thanked the decision makers at the end of the public hearing, follow up with a written letter. It very likely will be the only written thank you letter the decision makers ever receive. It will make you stand out in a very positive way in their minds. This might be very useful should you ever find yourself in front of this group in the future.