July 1, 2008
Land-use entitlements continue to be challenging, but these suggestions can tilt the odds in your favor.
by Gene Block
Editor’s note: This article was originally published in 2001 as a series of articles, however the suggestions outlined in the article remain vital in today’s permitting environment.
As everyone connected with the aggregates industry knows, you can locate the best deposit imaginable, but if you can’t obtain the necessary land-use entitlements or permits to operate, the property will never be mined. Obtaining entitlements and permits depends on many factors. These factors include the location of the deposit in relation to the surrounding land uses, the existing zoning regulations in the governmental jurisdiction where the deposit is located, and probably the most important of all, the politics of the local community and your company’s reputation within the community.
Having been involved in permitting numerous deposits for more than three and a half decades in a number of different localities in several states, I’ve learned that there is no magic formula to ensure success in the permitting area. In the final analysis, you can prepare a state-of-the-art mining and reclamation plan for a project. Required environmental reports can conclude that your proposal will not harm the environment. Yet the final decision as to whether you receive the necessary approvals from local decision makers always comes down to one factor – local politics.
Stated another way, it is always a political decision whether to approve your request and to allow an expansion of an existing operation or to permit a new greenfield site. I do believe, however, that there are a number of things a producer can do to improve the odds of receiving the necessary approvals to mine a deposit. These steps begin before a written application is even submitted.
The pre-application phase
Producers know years in advance that sooner or later they will need to get new acreage permitted at their existing location or move to and permit a greenfield site if they want to continue in business after their existing reserves are depleted. The earlier a producer begins to focus on the entitlement process, the better the chances are of receiving a favorable vote in permitting new reserves. The following steps are recommended in the pre-application phase.
The importance of targeted charitable contributions was brought home to me a few years back. A predecessor company was involved in a particularly difficult permitting process on a greenfield site. The predecessor company was a publicly held company whose stock was traded on the New York Stock Exchange. The company’s largest stockholder was a charitable foundation. Several years prior to seeking the new entitlements for the greenfield site, the foundation made a sizeable contribution to a hospital that was planning a major expansion in the community where the permit was being sought. Throughout the process, opponents tried to paint us as a large company that only took, but never gave anything back to the community.
I, of course, pointed out all the company and/or its major stockholder (the foundation) had contributed to the community including the contribution toward the hospital expansion. It happened that the chairman of the hospital’s board of directors was a prominent local contractor who supported the permit request. Consequently, he asked the hospital administrator, who was well known in the community, to attend the public hearing on the request with him. Not only did they attend, but also they took front-row seats during the six-hour hearing, and it was obvious they supported the request. Their presence went a long way to countering the negative image our opponents were trying to convey about our company. The request was ultimately approved.
One final thought about contributions, donations of material, etc. – most groups will send you a thank you note after they receive your contribution. Do not discard these letters. Keep them in a file that you can use during the public hearing process. And if you don’t receive a thank you letter from a community beneficiary, ask them to send one!
One school of thought holds that it is better to talk to the neighbors before plans are prepared for the project and an application is filed. That way, concerns of the neighbors can be incorporated into the plans as they are prepared. Another school of thought says that it is better to prepare preliminary plans for the project before meeting with neighbors. Then, after hearing the neighbors’ concerns, the plans can be modified. That way, the thinking goes, the neighbors will feel they have had input into the process when they see the revised plans that have incorporated their concerns.
While the debate goes on about when the best time to talk with neighbors is, one thing is clear: a permit applicant must meet with the neighbors before beginning the public hearing process. Decision makers do not appreciate it if, when the public hearing is held, the applicant and the neighbors have not met and attempted to iron out their differences. Even if, after the meetings, the neighbors still oppose the project, the fact that the applicant has met with the opponents is a big plus for the producer. At the hearing, the producer can point out all the changes that have been made to the project as a result of listening to the neighbors’ concerns. Having done this, the producer can then strongly imply that it is the neighbors who are unreasonable and still oppose the project even after their concerns have been addressed.
Meeting with the neighbors before the public hearings begin also has one other advantage: as people get to know one another, they are less likely to make wild unsubstantiated claims before decision makers. Anything that can lower the decibel level of the public discussion on a producer’s application works to the advantage of the applicant.
The application phase
One of the least understood parts of the land-use entitlement process is the importance of timing. The worst thing that can happen to any applicant whose project will be controversial is to have the issue surface right before a local election. If the project is controversial, most of the candidates will take a position against the project in an effort to win votes.
Applicants, therefore, need to know how long it will take to process their request and manage the timing of their request so that it does not surface during an election campaign. Once a person takes a public position against a proposal, it is very difficult for him to reverse his position once elected.
Another area that is not well understood, in my opinion, is the importance of being able to get the professional planning staff of the local governmental agency to recommend approval of your application. This is not always possible. Sometimes, even though the staff is in favor of your request, local politics of the community will not allow them to recommend a favorable vote. However, it is well worth the effort to make feasible changes to your project if it will ensure a favorable recommendation from the staff.
Consider this: some years ago, the National League of Cities conducted a survey throughout the United States. It found that more than 70 percent of the time, the first reviewing body – usually appointed officials – voted in accordance with the planning staff’s recommendations.
They further found that for those items that then either automatically made their way to elected officials or were appealed to the elected officials, the chances were less than 15 percent that the initial vote would be overturned! Therefore, if you enter the public hearing phase for your application with a staff recommendation to deny your project, you are fighting a very difficult uphill battle. The odds are stacked against you.
One of the best ways I know to gain staff support for your project is to hire a well-known local planning consultant who has a track record and is respected by the local planning staff. Generally, the staff will not come right out and recommend a single consultant. But, it is usually possible to get two or three names of local consultants with whom the local staff is comfortable. With a little more probing, you can generally get someone to tip his hand as to the consultant he prefers.
You may also have a favorite consultant who has worked for you in the past. But remember, your favorite consultant may be completely unknown to the local staff and decision makers. If you insist on using your favorite consultant, one solution to the problem is to have your person partner with a local consultant. That way, the project gets designed by someone with whom you are comfortable, while the local firm can act as spokesperson for you with local officials.
During the application phase, keep in mind the following strategies.
Some years ago, I knew I was going to have opposition from adjacent residents on one project application. The plans I submitted broke the project down into six phases, but approximately 80 percent of the reserves were included in phases one through three. After listening to those who opposed our project at the public hearing, the decision makers approved only phases one through three and denied phases four through six. The opponents left the hearing feeling that they had received “their day in court” and derailed half of our request. I, on the other hand, was very satisfied since, as stated earlier, 80 percent of the reserves in the phases that were included in the phases approved and knew that the time it would take to excavate the reserves that had been approved would exceed the time remaining on the lease.
One strategy that I have successfully used is to obtain a list of the agencies that will receive a copy of my application. I then contact those agencies and request a meeting with them to explain the request and to answer any questions.
Over the years, I have found that this has paid big dividends, and I have been able to put to rest concerns by agreeing to make modifications to the application before a negative letter is written recommending denial of the project.
Taking this proactive approach and meeting with agencies that are being asked to comment on a project also ensures that when a response is prepared, it is at least based on a true understanding of the request. Once an agency is on record as recommending a denial of a project, it is very difficult for the agency to reverse itself even it if turns out that the recommendation for denial was based upon an incomplete understanding of the request.
While, in theory, one can rationalize that the request for extended hours can be withdrawn and the opposition that developed to the request will disappear, it usually doesn’t work that way in real life. Neighbors who have learned to live with a 7 a.m. or even a 6 a.m. starting time and who might otherwise not object to an expansion request may very well be opposed to a proposed 5 a.m. starting time. This can cause them to join and/or form a group opposing the entire operation.
Subsequently, even if the request for extended hours is withdrawn, the opponents do not just give each other “high fives” and fade into the woodwork. They have become involved and have expended emotional energy with their opposition group. Chances are that most of those who only joined the group to oppose your request for extended hours will continue with the group to fight the expansion even after a request for the extended hours is withdrawn.
If you think about it, there are reasons why these groups continue. Frequently, they have developed into semi-formal organizations with officers, have collected money, and may have even hired an attorney. Some of the committee members may be sought by the media for their views and see their picture in the local newspaper. This can be heady stuff, and people don’t just walk away from those kinds of situations.
A perfect example of this happened in my hometown. The local school board decided to go to the voters and request approval for a bond issue to upgrade a number of existing facilities and build some new ones. Included in the proposed new facilities was a sports stadium to be built adjacent to the high school across from an existing residential area. The school board felt that the community needed a stadium since all of the sports and other after-school activities requiring the use of a stadium resulted in the district having to rent a facility in the adjacent town.
Unfortunately for the school board, the neighborhood adjacent to where the stadium was to be built was violently opposed to the idea. As a result, the board, feeling the political pressure, backed down and stated that it would not approve construction of a stadium even if the bond passed. But the damage had already been done. Even after the announcement that the stadium was being withdrawn, the opponents, who by this time had formed a very active opposition group, continued to oppose the entire bond issue.
The bond issue was ultimately approved by a razor-thin margin, but only after the group supporting the measure spent a record amount of money and put on a huge campaign to get out the vote.
The moral of the story is to carefully consider your request. If an item in your proposal will be controversial, include it only if you cannot life without it and you are committed to fight for your request until the end of the process.
The pre-public hearing phase
Preparing for a public hearing can be downright uncomfortable for anyone who only occasionally goes through the entitlement process. No one relishes the thought of appearing before local decision makers in a public setting to request approval to permit reserves when the audience is filled with angry homeowners who violently oppose your request. There are, however, a number of steps that an applicant can take to help get through this phase of the process with better odds of success. Before discussing these steps, several comments about the public hearing process are in order.
Jim West, who has worked for several aggregate companies and also has been a consultant to the industry, correctly observes that the term public hearing is an oxymoron. He goes on to describe that “the public” really isn’t involved in a typical hearing process to permit reserves – it is only the applicant and the immediate neighbors who show up at the hearing. And really not much “hearing” is involved in these meetings because each side is so intent on making its points that no one is listening to, or hearing, what the other side is saying. That does not mean, however, that the public hearing is not important for the applicant. In some respects, it is like a television debate between vice presidential candidates. Even if a candidate does really well in the debate, it may not be a major factor in determining how someone will vote. If, however, a candidate makes some embarrassing errors during the debate, it could well cause many people to vote for the other side.
To be properly prepared for this event, producers can implement the following pre-hearing steps.
By sitting in and observing several meetings before your hearing, you will also gain insights on the group’s dynamic – who the power players are. Frequently, there are one or two people in each group who – if you can get their vote – will sway several other members to vote the same way. The person who is running the meeting may be, but is not always, the member most respected by their colleagues. In many locations, the position of the chairperson is rotated every year or so. When I was first appointed to the planning commission where I live, the most respected member sat at the end of the dais. He was a professor of government at a local college and had been on the commission for 20 years. Almost always, the newer members of the commission would vote the same way the professor voted. If you could convince him, you automatically picked up two or three other votes.
Finally, it needs to be noted that all local decision makers are ordinary people and, as such, are biased in one way or another. By sitting through several meetings, you will learn who is biased on what subjects. Therefore, you can prepare your presentation for your public hearing accordingly. For example, assume you have attended several meetings of the group that will decide you application and you have observed that one or two members of the group are school teachers who are concerned with children getting to and from school safely. In this case, I would want to present a visual example of the routes that trucks would take to service a major upcoming or proposed project from both your requested site versus the route trucks would travel from a more remote location. The site I would pick for such an example would show the trucks from the requested location not traveling by any schools versus the truck traffic from the more distant location traveling by several schools. The decision makers who are teachers will immediately pick up on your example even if you don’t mention it verbally.
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.
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.
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.
Some years ago, I was involved in a particularly difficult hearing before the elected officials in a county in Southern California. I was aware that two of the elected officials had received strong union support during their last election. Therefore, I contacted the union that represented a number of our employees and asked them to send someone to speak in favor of our request at the upcoming hearing. I suspect that the union representative had never been to a meeting of the County Board of Supervisors before. He took it upon himself to comment on every item on the agenda before our item was heard. He was rude, would speak without being recognized by the Chair, and generally made a nuisance of himself. At one point, he even threatened the supervisors. I learned a good lesson from that experience. To the extent possible, you should always screen others that you recruit to speak on your behalf.
Applicants may want their attorney to supply a list of findings to the local agency prior to the hearing. You do need to be careful in this regard, however. Some local agencies and their attorneys may resent an applicant submitting this type of material. If this is the case, then you need to back off. Other agencies (once they have decided to recommend approval of the permit request) may welcome help from the applicant to ensure that the findings by the decision makers withstand judicial scrutiny.
Present a notebook about your company to decision makers. It can be said almost without fear of contradiction that, in any public hearing involving a controversial application to permit additional reserves, the opposition will attempt to raise serious questions about the company’s reputation. The opponent’s job is made much easier today because many governmental regulatory agencies list all of a company’s violations, notices to comply, etc., on their Web sites. Even the best-run business will occasionally have minor infractions given the explosion of confusing rules and regulations at all levels of government during recent years. An applicant must be prepared to counter these attacks.
The best way I know how to project a good company image immediately before a controversial public hearing is to prepare a notebook about the company and have it delivered to the decision makers about three to five days before the hearing. In my opinion, the notebook should not contain any information about the current application. It should be limited to information on the company’s history, the company’s involvement in the community, and, if examples are available, photos and descriptions of land that previously has been mined and reclaimed.
The overwhelming majority of decision makers, whether appointed or elected, are involved with community groups in one form or another. As previously discussed, before a hearing, you need to research each member’s past and present community involvement. If a decision maker is involved with youth sports, for instance, then you want to include several examples of thank-you letters from various sport leagues indicating your sponsorship of a league team. If a decision maker has been involved in Boy Scouts or Girl Scouts, then a letter from a Scout council thanking you for providing scholarships to summer camp should be included. For any group of decision makers that includes teachers, a thank you letter from a school participating in your Adopt-A-School program would be ideal.
The purpose of your notebook is simple. Most local decision makers will read the material you provide before the hearing. As your opponents try to trash your company’s reputation during the hearing, your goal is for the decision makers to remember the information you provided them with via the notebook. If you have done a good job with your notebook, have a solid record of community involvement, have attractive looking facilities, and have successful examples of reclamation, it should counter any attempt to damage your company’s reputation at the hearing. If you are successful in showing the decision makers that your opponent’s claims about your company are not accurate, you also raise doubts in the decision makers’ minds about other claims the opponents make directed against your specific request.
The idea of providing decision makers with information about your company is particularly important with many mergers going on within the industry. Companies that are well known in one part of the country may very well have little name recognition in other regions. Providing local officials with examples of positive stories of community involvement in current operations, along with a promise of doing the same in the area where the request is pending, goes a long way to balance any perceived impacts should your request be granted.
There can also be other benefits from having a transcript of the hearing. Some years ago, we were involved in a particularly difficult request to permit additional reserves. We knew that the local public water agency would take a lead position on the matter and forward it on to the decision makers; in this case, elected officials. When the water agency’s board of directors met, their discussion clearly indicated that their opposition to our request was for a variety of political reasons, none of which were related to our request. The letter the water agency sent to elected officials simply stated that it opposed the request, but did not go into detail as to why it opposed the proposal. At the hearing before the elected decision makers, I read some of the statements of the water agency’s board members from the transcript of the hearing. The elected decision makers, upon hearing of the opposition as revealed by the transcripts, became upset at the water agency and approved the project.
The public hearing phase
On the surface, one would think that if an applicant has followed all the steps suggested during the three previous phases, he would arrive at the appointed time for the public hearing beaming with confidence that the request would be approved. Of course, this is not usually the case, as anyone who has ever been involved in a controversial land-use entitlement request knows. Throughout the remainder of the process, keep the following list of dos and don’ts in mind.
Whatever form or type of presentation that is selected, I strongly recommend that a practice session be held. Various people from the company can serve as surrogate decision makers. Their role should be to get the person making the presentation completely flustered. This will serve as a tremendous warm-up for the real hearing when the audience may well be filled with more than 100 people, all opposed to the request.
Having people from the company ask questions will test the overall knowledge of the people making the presentation. Every public hearing will usually generate one or more questions that are “off the wall” or “from out of left field.” The person making the presentation needs practice on how to handle these types of questions, so they should be included in the practice session. I remember one practice session when the presenter responded to one of these “off the wall” questions with the statement, “It was a dumb question.” That is precisely why the practice session was being held. Responding to a decision maker’s question that way almost certainly would ensure that your request would be voted down.
I have long been of the opinion that the color of the clothes an applicant wears also is important. While this may sound silly on the surface, consider this: few people would show up at a hearing wearing an all-black suit, a black shirt, and a white tie. That type of clothing immediately makes people think of someone associated with the Mafia. Some years ago, I read about an experiment where identical twins were sent into multiple branches of a large bank seeking a loan. The only variable in the experiment, from branch to branch, was the color of clothing worn by the loan seekers. At the conclusion of the experiment, the results were startling. By a large margin, the loan applicants wearing blue were successful much more often than those wearing any other color of clothing. For some reason, people wearing blue appear to be more trustworthy. I always wear blue at public hearings. I don’t know if it has helped or not, but I know it hasn’t hurt. One final thought about colors. Think of presidential debates. What color suits do the candidates wear?
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.
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.
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.
Some time ago, I was talking with an industry acquaintance about his company’s land-use entitlement efforts. He told me that the mining plans his company turns in with its requests are absolutely perfect from an engineering standpoint. However, he added that the company often had been turned down in its requests to permit additional reserves. When I asked why this was the case, he said the answer was simple: the company management just didn’t understand that – in the final analysis – the decision to either approve or deny a producer’s request to permit additional reserves is always a political decision. He said his company prides itself on being an industry technological leader and just assumes that this carries a great deal of weight with local decision makers. He added that his company practically ignores local politics. It is no wonder it hasn’t had any reserves permitted!
It simply cannot be stressed enough that the decision to approve any controversial land-use application at the local level will almost always come down to a political decision. A review of all the steps that have been suggested as one goes through the entitlement process will reflect that most of the suggestions are politically based. Each time one of the steps is followed, you may incrementally increase your overall chances for success. But unfortunately, following every step does not ensure a favorable vote on permit requests. The reality is that there are simply certain situations that will be so politically charged that it will be impossible to obtain a favorable vote to permit additional reserves. But that doesn’t mean a producer shouldn’t try.
As stated earlier, a producer knows years in advance that – at some point in the future – its reserves will be depleted and it will need to obtain approval to permit additional reserves if it is to continue in business. Armed with that knowledge, a smart producer should develop a strategic plan to obtain the necessary approval from the local decision makers. The first steps in the plan should be to review the appearance of your existing operations and to make sure you have a good relationship with your neighbors. If no one from the company is active in the community or in local charitable organizations, it should become a priority. As stated earlier, most decision makers who vote on a request to permit additional reserves are generally active in community organizations. This provides a producer with an ideal opportunity to become active in the same organizations and to get to know the decision makers. Volunteer to work on a committee with them. It is almost inexcusable for a producer who knows years in advance that it will need a permit to arrive at a public hearing and not personally know any of the individuals who will vote on the request.
In this day and age of heightened environmental awareness and more and more NIMBY-minded communities, it is still very possible for aggregate producers to be successful in permitting additional reserves. To do so, however, you have to work at it and plan years in advance – just as you do for any other aspect of your business.
Prior to his retirement in 2000, Gene Block served as vice president of legislative affairs for Vulcan Materials Co.’s Western Division where he helped to permit more than 300 million tons of reserves.