Archive for October, 2010

CAN A NEW INTERSTATE ROADWAY BE BUILT TODAY?” THE FAILURE OF TRANSPORTATION PLANNING – DEMOLITION DERBY & COLLABORATIVE GRIDLOCK

October 19, 2010

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COMMUNITY PLANNER QUEST – SEARCHING FOR THE 21ST CENTURY COMPANY TOWN

October 15, 2010

In the late 1800’s and early 1900’s major employers constructed new towns as a means to attract and house their needed and expanding workforce. (more…)

BE CAREFUL WHAT YOUR SAY….IT MAY BE USED AGAINST YOU IN A COURT OF LAW

October 6, 2010

A Texas defamation of character law suit may set the stage for increased community planner and economic developer law suits.

Kelo and eminent domain ignites legal pushback against public Freeport Texas developer characterization.

Everyone knows today’s land use decisions are contentious pitting those engaged in private development and government officials who support increased tax base against folks impacted by the development and people opposed to new development of “any kind”.

The 1926 Standard Zoning Enabling Act, enacted by almost every state, established the requirement that governments who adopt zoning give the public a voice in the zoning entitlement decision process (typically a public hearing before the municipal planning commission) before a final decision is considered by local elected officials.

The resultant public input during the governmental entitlement process required by law often transcends into public vocalization of fact and fiction, incendiary name calling, rumors and innuendo.

Interestingly, zoning enabling laws typically do not require sworn testimony assuring truthfulness nor is there any means to challenge misinformation or misrepresentation of facts other than to place into the public record a different set of facts challenging misinformation.

Developers have become wise to this discrepancy resulting in an increased number of law suits where facts are ultimately displayed before a judge who becomes, “in many instances” the final land use authority (even though such authority is lacking in law or by common judicial precedents).

In Texas this past week, the court heard and will soon decide the merits of whether the words of an author chronicling the role of a developer and local government using the most contentious land use tool – eminent domain – to condemn and take private property for economic development purposes can be considered defamation of the character of the developer.

This case is based on 90-some claimed instances where the author, Carla T. Main defamed the developer’s reputation in BULLDOZED “KELLO” EMINENT DOMAIN and the AMERICAN LUST for LAND published in 2007.  The claim results from the Freeport Texas Economic Development Corporation (EDC) use of condemnation eminent domain powers to acquire private property (from an unwilling seller) for transfer to developer H. Walker Royall to develop a recreational marina.

As one might expect, the use of eminent domain power was incendiary resulting in legions of supporters and dissenters publically sharing their views during every step of the development approval process; matters recounted in the book.

Factual or not, the defamation of character suit is significant to every community planner and economic developer. 

It raises the question of whether comments offered by the public, an appointed commissioner or professional staffer in the public input process defame the character of the applicant.

This case presents a “slippery slope”, one that community planners and economic developers must take seriously.  Can comments made during a public input deliberative process result in personal defamation of character law suits?

Regardless of the outcome of the Texas case – community planners and economic developers are well advised to exercise caution when making comments about developers and other applicants seeking land use entitlements.   

It’s also time to seek advice and counsel concerning the public input and deliberative process used in decision making….as undoubtedly more litigating will happen.

Community planners and economic developers may also want to review insurance coverage both personal and coverage for citizen volunteer planning commissioners sitting on the many local government boards and commissions.

For more information on H. Walker Royall vs. Carla T. Main go to –

http://www.ij.org/index.php?option=com_content&task=view&id=2519&Itemid=207

http://ownerscounsel.blogspot.com/