Home  Sustainable Land Development Today March 2007
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Not-So-Strange Bedfellows |
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Written by Clif Sieber, P.E.
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Thursday, 01 March 2007 |
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There are benefits of professional collaboration between civil engineers and attorneys.
Written By Clif Sieber, P.E., and Joseph F. Galvin, Esq.
We live in an increasingly litigious world. Land owners and developers are routinely subjected to increasing amounts of governmental control and regulation. You may think hiring legal counsel and civil engineers early in the development process is unnecessary, or even an over-reaction. Nothing could be farther from the truth.
The logic is clear, and the advantages are many.
There are many benefits to early collaboration between attorneys and civil engineers in the development process. Bringing attorneys and engineers together is not just a worst-case safeguard, or an overabundance of caution, but rather a fundamental part of every developer’s sound business practice. It makes strategic sense and financial sense as well. Most importantly, ensuring close and timely attorney/engineer collaboration protects the developer’s interests and avoids costly “wheel-spinning.” It also improves the scope and quality of services received by the client.
An Ounce of Prevention
Unfortunately, many owners and developers fail to use attorneys except as “last minute” crisis consultants or glorified compliance specialists. But attorneys bring more to the design and development process than i-dotting and t-crossing, and viewing legal counsel exclusively as document servicers or courtroom performers is a mistake. Bringing in legal assistance only when problems arise is often a case of too little, too late; a classic example of closing the barn door after the horse is already gone. One of the most significant ways in which attorney/engineer collaborations can pay dividends is by anticipating future problems and working together to prevent potentially disruptive and “project killer” situations before they arise.
Just as civil engineers bring technical abilities and development experience to project design, attorneys bring other abilities to decisions regarding strategy, timing, planning and financing, and a broad range of relevant skills in negotiating transactions and obtaining project approvals. Research expertise, compliance, negotiation and dispute resolution, preemptive tactical planning, clear and consistent communication, media relations know-how, in-depth knowledge of statutes and legal requirements, and speedy responses to rapidly evolving situations has obvious practical payoffs for developers.
Development today is as much about political maneuvering and defusing public opposition as it is about the brick-and-mortar realities of design and construction. Skilled attorneys have quickly become a vital part of any development team. As regulations, zoning issues and permit and appeal proceedings become ever more complex, agile and responsive developers must exercise foresight and prevention. Establishing a relationship with qualified attorneys, whether on-staff or in a consultative role, and ensuring that they work closely with engineers and other technical consultants from the earliest stages of a development, can inoculate against avoidable stumbling blocks.
Working together on the front end, exchanging information and presenting differing perspectives, attorneys and engineers can offer a professional synergy that surpasses each other’s individual contribution. Attorneys familiar with local ordinances and project histories will have a better sense of which proposed planning and design elements will face increased scrutiny. Experienced civil engineers, trained to devise innovative technical and planning solutions, can work with them to present effective alternatives beforehand.
Time is Money
One of the most valuable ways in which ongoing collaborative efforts between engineers and attorneys can pay important dividends for developers is by avoiding the kinds of slowdowns and interruptions that delay or derail projects. Time is the great enemy of developers and, with a number of costly scheduling and logistical moving parts relying on an interrelated chain of events, even a short delay can significantly hinder a project’s progress. In a worst-case scenario, if a delay becomes protracted and time on a purchase option expires, a developer could even lose the property. Time is money; often literally.
From market research and site selection, to feasibility analysis, due diligence and property acquisition, and continuing through design, financing, construction, and leasing sales and operation, there is no step in the development process where attorneys can not play a pivotal role in facilitating seamless and incident-free project progression. Rezoning debates, land-use issues and wetlands and environmentally sensitive development are all areas where productive partnerships between attorneys and civil engineers can be especially effective in reducing or eliminating costly delays.
Residential developments are particularly sensitive to approval problems and public sentiment, and are correspondingly reliant upon the coordinated services of both attorneys and civil engineers to secure necessary permits and satisfy local requirements. Rezoning is often politically unpopular, and overcoming initial reluctance and community inertia can be a delicate and nuanced process. Legal or technical appeals alone are unlikely to achieve satisfactory results. A combination of practical logic, political acumen and, in no small part, public relations and clear, compelling communication can demonstrate the value of a proposed development to neighborhood organizations and local officials.
In cases that require dispute resolution, civil engineers can make valuable contributions in the preparation of legal briefs or presenting testimony, but attorneys are necessary to move the process along in a brisk and efficient manner. Local officials may request or even require significant off-site improvements as a condition of approval. These prerequisites could make the development economically unfeasible, and in some cases may be illegal. Attorneys and engineers are equipped to go before the judge or presiding authority and request a review as to whether such improvements can be legally required under local ordinances. When possible, attorney/civil engineer teams can work together to obtain a consent judgment, negotiating a mutually beneficial deal without the expense and time investment of a trial. Often, parties seeking judicial intervention are required to first exhaust all possible options, including appeals to planning commissions, city councils, or zoning boards of appeal. An experienced attorney, familiar with the process and able to rapidly navigate through bureaucratic terrain, can save both time and money.
While dispute resolution and negotiation are best handled by attorneys, they must continue to collaborate with engineers. Civil engineers provide the vitally important details and perspectives that attorneys need to present an informed and compelling case. Mutual oversight, with attorneys and engineers working closely together, provides maximum complementary benefits.
Rezoning Case Study
A prime example of a development project that benefited from the collaboration between a civil engineer and an attorney is that of Grossman v. Independence Township.
In this particular case, the plaintiff requested the rezoning of his property from single family residential to commercial parcel to develop a strip mall. The plaintiff’s engineer conducted a soil analysis and prepared cost estimates for both residential and commercial options to demonstrate why residential zoning was not feasible.
After careful review of the opposing engineer’s data, the plaintiff’s engineer discovered calculation errors, which were disclosed during trial to question the reliability and credibility of the original data. The appraiser in the case could not rely on the data provided by the opposing team, and based on the plaintiff’s engineer findings, the judge ruled in the plaintiff’s favor.
The township appealed to the Michigan Supreme Court, but the circuit court’s decision was upheld. If it had not been for the successful collaboration between the plaintiff’s engineer and attorney, the development most likely would have resulted in an entirely different outcome.
Attorney-Client Privileges
Growing appreciation for the importance of attorneys’ role as an integral strategic cog in the development process is beginning to gain some traction. The bottom line is – and developers are watching their bottom line - utilizing attorneys alongside civil engineers adds value. Like any development decision, from site selection to purchasing materials, a straightforward cost-benefit analysis is often the final arbiter. Structuring development teams to include attorneys adds significant quality and efficiency for a relatively small financial commitment. It is an investment. And that is a concept that everyone can build on. LDT |
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