Rezone denied 4 to 3. Land use counsel at $475 an hour or just re-file smaller?

Question

18 acres, under contract with a due diligence extension I paid $8,000 for. Asked for a rezone to allow attached product at roughly 6 units an acre. Denied 4 to 3 after a hearing where two of the no votes talked almost entirely about traffic on a road the county's own study said was fine.

Land use counsel has looked at the record and thinks there's a real procedural argument. Retainer $10,000, estimate $25,000 to $40,000 through a writ, and she's careful to say the timeline is 9 to 18 months in this jurisdiction. The alternative is re-filing at 4 units an acre in about 12 months, which pencils to roughly $310,000 less in residual land value on my numbers, plus another year of carry at about $4,100 a month between taxes and the loan on the option.

So the appeal is arithmetically the better outcome if it works. What I keep circling is that I'll be in front of this same board on the next three parcels I want, and I have no way to price that.

Rena Expert · Accepted Answer

Your $310,000 spread and the $40,000 legal estimate are the two numbers people compare, and they're the wrong pair. Add vellum's carry, and add the probability weighting, because a win on a procedural argument frequently gets you a remand back to the same board rather than the zoning you asked for. In a lot of states, judicial review of a legislative rezoning is deferential and the remedy is a do-over with better findings, not a court granting the entitlement. Whether your jurisdiction treats this vote as legislative or quasi-judicial changes the standard of review and the remedy, and that's a state and sometimes local charter question your counsel has to answer specifically for you, not a general rule.

So run it as: 18 months of carry plus fees for a shot at standing in front of the same seven people with a court telling them to explain themselves. That can genuinely be worth it if two of those seats turn over on the way through, which is a real part of the calculation nobody writes down.

On the relationship cost you say you can't price, you can partially. Ask your counsel what fraction of her land use practice involves suing this county and whether she still gets applications approved there. Some jurisdictions treat a writ as normal business. Some staff slow-walk everything you file for years afterward, and staff outlasts commissioners.

The piece your post doesn't mention is your seller. A 9 to 18 month appeal means an option extension you haven't negotiated yet, and the moment the seller learns the denial happened, the price of that extension changes. Find out what the extension costs before you decide anything, because it may be the largest number in the analysis.

luis_carrera · Answer

What's in the record? If the traffic testimony contradicts the county's own study and that study is in the file, that's a different case than a board that just voted its gut with nothing on paper. I'd want to know whether the hearing was transcribed before I'd weigh $40,000 against $310,000.

raj_mehta14 · Answer

The carry number is the part I'd stare at. 18 months of appeal at $4,100 is another $74,000 on top of the legal fees, and you're paying it whether you win or lose. That moves the comparison a lot closer than the headline $310,000 spread.

carlos_nunez · Answer

The extension point kills it for me. I had a seller go from cooperative to $3,000 a month the day he heard a hearing went badly, and nothing in the contract stopped him.

parcel, if the remand outcome is the likely win, what does 5 units an acre do to your residual? Might be a cheaper conversation with staff than either option you're weighing.

Rezone denied 4 to 3. Land use counsel at $475 an hour or just re-file smaller?

4 replies