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

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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