Rezone denied 4 to 3: is land use counsel at $475 an hour worth it, or is re-filing smaller the better move

Question

Take an 18 acre parcel under contract, with a due diligence extension paid at $8,000. A rezone request for attached product at roughly 6 units an acre gets denied 4 to 3 after a hearing where two of the no votes talk almost entirely about traffic on a road the county's own study says is fine. Land use counsel reviewing the record may see a real procedural argument. Retainer $10,000, estimate $25,000 to $40,000 through a writ, with a realistic timeline of 9 to 18 months in a jurisdiction like this. The alternative is re-filing at 4 units an acre in about 12 months, which can pencil to roughly $310,000 less in residual land value, plus another year of carry at about $4,100 a month between taxes and the loan on the option. On the numbers alone, the appeal is arithmetically the better outcome if it works. The harder question is standing in front of the same board on the next several parcels, and there is no clean way to price that relationship risk.

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 is in the record? If the traffic testimony contradicts the county's own study and that study is in the file, that is a different case than a board voting its gut with nothing on paper. Whether the hearing was transcribed is the thing to establish before weighing $40,000 against $310,000.

raj_mehta14 · Answer

The carry number is the part worth staring at. 18 months of appeal at $4,100 is another $74,000 on top of the legal fees, and it gets paid whether the writ wins or loses. That moves the comparison a lot closer than the headline $310,000 spread suggests.

carlos_nunez · Answer

The extension point is the one that decides it. A seller who hears a hearing went badly can go from cooperative to $3,000 a month for the next extension, and the contract usually does nothing to stop him. Parcel, if the remand outcome is the likely win, what does 5 units an acre do to your residual? That might be a cheaper conversation with staff than either option on the table.

Rezone denied 4 to 3: is land use counsel at $475 an hour worth it, or is re-filing smaller the better move

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