Daily Development for Tuesday, February 8, 2009
by:
Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of
Law
Of Counsel: Husch Blackwell Sanders
Kansas City,
Missouri
dirt@umkc.edu
REDEVELOPMENT; STANDING; CITIZEN OPPOSITION:
Citizen has standing to attack the awarding of a redevelopment contract as
illegal and ultra vires ten years after the original approval of the plan if:
(1) If it is a taxpayer and the alleges that the challenged action will cost the
city money - leading to a loss of funds that must be replaced with tax money;
(2) if it owns a parcel adjacent to or even nearby to the proposed redevelopment
project, in which case it is prima facie aggrieved by any land use decision made
on the redevelopment property or other property affected by a land use decision,
and the zoning authority must show lack of any potential adverse effect to
defeat standing.
120 West Fayette Street LLLP et al. v. Mayor and City
Council of Baltimore et al., No. 49 (Md. 1/9/09)
The first third of this
opinion is a detailed analysis of the procedural details of the appeal -
discussing whether a motion to dismiss was converted into a motion for summary
judgment when the trial court relied on matters outside the official record in
reaching its decision. Perhaps the analysis is important, but the
procedurally challenged editor has difficulty perceiving why it makes much
difference to the outcome of this case when the court goes on to hold that the
citizens challenging the action really had to show very little to obtain
standing. It may be that the “off record” information was an affidavit
from a public official that no public money would be expended on the project,
but it is hard to imagine that the court could make a finding on such an issue
on the basis of an affidavit alone anyway. Certainly the “antis” alleged
that there was a lot of fact finding that ought to go on to these this
assertion.
The fundamental allegation made by the neighbors was that,
after a long process of issuing RFP’s and dealing with various proposed
developers, the redevelopment agency suddenly found itself a new developer with
a significantly different plan than that earlier addressed, and that the process
of selecting this developer happened quickly and without adequate attention to
what went before, and therefore was illegal. This sort of thing happens
all the time in redevelopment projects, of course - a last minute “white
knight,” often with a new plan and out of town money, comes charging in and
local developers who have been negotiating for the project get squeezed
out. Undoubtedly there is a right way and a wrong way to deal with
this situation, and the opinion takes no position on whether the City in fact
did anything wrong.
As indicated in the caption, the court first held
basically that everyone who pays taxes in the County is eligible to protest a
public action that might lead to an unlawful expenditure of public funds.
As the redevelopment project (known as the “Super Block”) was the second largest
redevelopment project in the city’s history (second only to the Inner Harbor
project), it is certainly easy to contemplate that commitments made by the city
to facilitate the development might well cost the city a great deal of money,
even if the basic financing was not public.
Finally, the “antis” argued
that they owned property adjacent to the project site, “would endure
construction and interminable chaos at its doorstep” (almost certainly true -
veterans must admit - but perhaps with an ultimate payoff in higher land
values). In any event, this fact alone would permit the opponents to have
standing, even if they didn’t own land adjacent to the project but even
nearby. Necessarily, a project as large as the Super Block unavoidably is
a land use decision made by a public agency that will impact the
neighbors.
Comment: It is a rare case in which a challenger to a major
project actually has to win substantively, and show some significant legal
defect preventing the project from proceeding. Often, just tying up the
project in litigation for a significant period of time will cost the developer
whatever financing it had cobbled together. In short, for those attacking
a major development project, standing is life. For those defending it - delay is
death. Regardless of what happens later to the Supre Block, certainly the
Court of Appeals has given land use opponents a potent weapon in its broad
standing determination.
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