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“Effective Advocacy Before Municipal Boards; How to Be an Effective Activist.” By Carolyn Zenk, Attorney at Law/Mediator/Activist
I have worked for many years attempting to influence various municipal boards in favor of protecting the environment. I was an environmental activist/lobbyist for nearly five years before I went to law school. When I returned from law school, I spent another ten years as the lead Counsel with an environmental organization, which attempted to influence various town boards, planning boards, and zoning boards of appeal to make decisions in my organization’s favor.
After awhile, I decided it might make more sense to challenge government decisions from the inside or make those decisions myself. I became a Town Councilwoman for four years from 2000 to 2004. Afterward, I worked in my own law firm often representing citizens groups attempting to challenge government decisions.
What works? What does not work? What remains a mystery? This article discusses these questions.
SUPPORT GOOD GOVERNMENT OFFICIALS.
The most important thing in trying to persuade government officials is to make sure that officials who answer to the public have been elected. Get the right people into office in the first place. Find out who is really working in the public’s interest. Encourage good people to run for office. Contribute time, money, and energy to their campaigns. If you don’t like the government, consider becoming a government official yourself.
SUPPORT LAWS THAT PROHIBIT THOSE WITH VESTED INTERESTS FROM MAKING DECISIONS.
Try to get stricter laws prohibiting those with vested interests from serving in government or making decisions on projects where they stand to make a profit. You may need to hire an attorney to find out the kinds of laws that are needed. The attorney can research the necessary background, examine the laws already on the books, draft amendments to existing laws and/or propose new laws. Your attorney can find a government sponsor to bring the law forward. You may wish to prohibit professional developers from serving on planning boards, for example.
FIND OUT WHOM AND/OR WHICH GROUP A PARTICULAR GOVERNMENT OFFICIAL RESPECTS.
There are many entities and individuals who follow the activities of government and government officials. Officials are more or less favorable to different organizations or individuals. A project can rise or fall depending upon who supports and/or opposes it. Find a person or group towards whom a government official or officials are inclined. If possible, get that person to present your case. You will stand a better chance of winning.
USE PRIVATE MEETINGS WITH OFFICIALS
You can also meet with individuals on certain boards in private. For example, you may be able to meet with one or two Town Board members at one time. These kinds of meetings have the advantage of privacy. This privacy allows the official to state his or her mind. In this way, you can address his/her concerns about upcoming decisions. By hosting several initial meetings with government officials you can tailor future presentations, taking into account the concerns your officials have voiced or present data that they expressed that they need to make their decisions.
FIND A SPONSOR AND DO THE WORK FOR THEM.
Many laws are passed as the result of sponsors. Sponsors bring laws forward for other board members to consider. Government officials are busy people. Many are well-intentioned and want to get things done. They often have pet projects of their own. It is good to “flow with” the things that a government official wishes to accomplish. You may conduct the necessary factual and legal research for them and present them with a draft of the law you wish to pass. They can help guide your group by letting you know what their colleagues may find acceptable and actually pass. This can save you a lot of work and help you better reach your goals.
USE OF WORK SESSIONS.
Some government entities host pre-arranged work sessions in which it is possible for your group to present a formal presentation to them. These sessions have the advantage of a “give and take” discussion. You may get as much as a half hour or more to present your concerns. (Hearings can be rushed.) You can find out the concerns that your officials have about your given issue. You may be able to bring in experts on your issue to talk with officials.
These sessions have the PR advantage of being covered by the press, unlike private meetings. This can put additional pressure on government officials to make a decision in your favor. By the same token, officials may be less willing to speak their mind as they would in a private interview, so you may not be able to address their real concerns.
USE LAWYERS, EXPERTS, AND KEY SPEAKERS AT PUBLIC HEARINGS.
Public hearings do matter. Find out when they are held. If legal issues are involved, you may wish your lawyer to spearhead your presentation. The lawyer can bring in experts to make the necessary points in the most compelling manner. Then, identify your best remaining speakers. If there are three fundamental points to be made about a particular topic or piece of legislation, each speaker can make the point briefly using different examples and/or language. Distribute the remaining topics amongst your remaining “me too” speakers. Each presentation should be compelling, filled with facts, and brief.
The remaining members of your constituency can applaud loudly as your leaders make their presentations. They may wish to carry placards to make various points. These can be helpful. They should never be offensive. It’s important to remember that administrative agencies have a lot of power and discretion. When they are challenged in court, the “scope of review” or the matters that judges may be considered are very limited. It is best to win in the first instance, not challenge decisions after the fact. As a matter of law, the Courts often use the “arbitrary and capricious” standard. The Courts don’t necessarily judge who was right or who was wrong. They may only ask if the law was violated or whether a government decision was completely “irrational.” This is a very hard standard for citizen groups to meet. Worse, even when citizen groups win against government officials in a court of law, decisions are often simply remanded to the same agency which made the bad decision in the first place. You can win an expensive lawsuit and lose your case anyway. Persuade your officials whenever you can.
Many environmental and civic groups made the mistake of not investing their resources at the administrative level. That is the time to invest in changing the government’s mind, not later in a court of law. The expense involved in making your case earlier rather than later is about one quarter or less of the expense you might face later. The standard at the agency level is much more generous to the citizen’s group-who is right and/or who is wrong or what is the right thing to do? Many citizens are surprised to learn that if they did not make their case before the administrative agency, they cannot make it later in court. In regular litigation, you can introduce your witnesses and evidence for the first time in court. This is not true for the review of administrative decisions, which are treated more like appeals. The “preclusion doctrine” may stop you from introducing evidence government officials never saw in the first place. Invest your money, time, and energy in lawyers and experts before the administrative agency.
ATTENDING FUND-RAISERS FOR OFFICIALS.
Not that this should count, but unfortunately, it does. Officials are human beings and feel indebted to those who show them support. Spend a little money to attend that fund-raiser. It won’t hurt for your official to see you there supporting them.
LETTERS TO GOVERNMENT OFFICIALS: Letters to government officials may or may not be read given the crush of mail officials receive, but this is still a worthwhile venue. Make the letter short and to the point. You may wish to title your letter with the subject involved.
PETITIONS: Petitions can be worthwhile. However, make sure that the petition is well-written and makes your point. You may wish to use an attorney to draft your initial petition. Why take the trouble to circulate a petition widely that is poorly drafted?
PRESS CONFERENCES.
The press conference can be an effective tool. You set a time, place, and topic for your conference. You identify key media players and send out a press release informing them of the nature of the conference. You may wish to follow up with a phone call. Identify your best speaker and/or speakers; gather a dozen of so supporters in a highly visible place. Set up a podium and you are good to go. You may wish to have printed material available at the conference to make sure reporters get the story right.
THE PRESS RELEASE.
The press release is a nice device to “heat up” your issue. One usually includes the words, “PRESS RELEASE” accross the top. It usually looks something like this:
PRESS RELEASE
To: All local press
From: Carolyn Zenk, Attorney at Law
Re: The dangers bulkheads present to our beaches
Date: May 25th, 2010
Contact information: Carolyn Zenk, Attorney at Law at 631-723-2341.
Title: ZENK PREDICTS THAT BURIED BULKHEADS IN ERODING AREAS OF SOUTHAMPTON WILL ULTIMATE SEVERELY SHORTEN PUBLIC BEACHES AND CALLS FOR REVISIONS TO THE COASTAL EROSION HAZARD AREA LAW
[Explain story here and include some juicy quotes. You may wish to provide a picture that illustrates your point.]
LETTERS TO THE EDITOR.
Letters to the editor are an inexpensive way to influence government in your favor. Many government officials keep in touch with the pulse of their constituency by reading the local papers. Find the local papers in your area. Find out whether your government officials have an official paper that they receive or determine whether they prefer one paper to another. Form a small committee of persons to draft letters to the editor. Make the letters short and punchy. Make a point or two in one or two paragraphs. Most studies show that the first paragraph of such a letter is read the most. Letters two to three paragraphs long are the most likely to be read. An example of a letter to the editor might read as follows:
May 25th, 2009
BULKHEADS DESTROY BEACHES
Dear Editor,
I support the legislation currently sponsored by Councilwoman Zenk that tightens the regulations that apply to our beaches regarding bulkheads.
I have taken many beautiful walks along our local beaches. I find it disturbing when I am forced into the sea in order to walk around an exposed bulkhead. It’s my understanding that the public owns the beach up to the mean high tide line. This legislation is vital. I urge all citizens to support it at the public hearing coming up in Southampton Town Hall, Hill Street, on June x, xxxx.
Sincerely,
Jane Doe
IGNORANCE, INCOMPETENCE, CORRUPTION, OR IMPROPER INFLUENCE.
Sad to say, sometimes citizens are ignored. Why does this happen? This is where the mystery part of this article comes in. Despite watching government officials in action for nearly twenty-five years, I don’t know why the public is often ignored. Sometimes, the wrong person is in office; an official is incompetent, does not do his home work, or he simply does not care. Proper pay for government officials helps to increase competition for these important jobs and puts better people in the right seats. Town and planning boards wield power over millions of dollars in real estate. Paying them poorly is penny wise and dollar foolish.
If things simply don’t make sense, someone may be making some money somewhere that they shouldn’t be. Always “follow the money.” If you find improper influences, expose them. Insist that government officials with vested interests step aside.
USE OF ATTORNEY ACTIVISTS.
The use of attorney activists at the administrative level is a wise investment that pays for itself in spades for years to come. Try to win at the administrative level rather than using up your precious financial resources in expensive court actions.
However, if the administrative level fails you, you may wish to sue. This can be a good investment mostly because it makes you and your group a “force to be contended with”.
CONCLUSION.
I hope you have found this article helpful. I have been aiding environmental groups, civic organizations, and neighbors opposing or supporting projects for over twenty-five years. You are welcome to call me for a free fifteen minute consultation on your issue. 631-723-2341. Good luck trying to change the world or at least your neighborhood! “Think globally. Act locally!”
This article was written by Attorney and long-time Activist Carolyn Zenk, a former Councilwoman of Southampton Town, Suffolk County, Long Island, New York. To contact Ms. Zenk for a free fifteen minute phone consultation, call 631-723-2341.
“The New York State Environmental Quality Review Act. (SEQRA)-An Overview.” By Carolyn Zenk, Attorney at Law/Activist
INTRODUCTION. The State Environmental Quality Review Act, known as SEQRA, is one of New York State’s most important environmental statutes. It was partially based upon the National Environmental Policy Review Act, which required that environmental considerations be part of official’s decision-making process for national decisions.
FUNDAMENTALS OF SEQRA: At the heart of SEQRA is the requirement that government officials must prepare an environmental impact statement (EIS) for an action that “may have a significant effect on the environment.” An environmental impact statement is a scientific study, which analyzes the environmental impact of a project and attempts to minimize or avoid its’ harm.
DISTINGUISHED FROM NEPA: Authors of SEQRA hoped to make the statute stronger than the National Environmental Policy Review Act, which turned out to be primarily a disclosure statute. The statute and implementing regulations require that a “range of reasonable alternatives” to a project be set forth in the environmental impact statement. In addition, the entity leading the environmental analysis must, “consistent with social, economic, and other essential considerations to the maximum extent practicable, minimize or avoid adverse environmental effects, including effects revealed in the environmental impact statement process.” ECL 8-0109. Unfortunately, these provisions have proven to be somewhat of a “Paper Tiger” ---a lot of teeth showing, but weak in the bite department.
CONTENTS OF AN ENVIRONMENTAL IMPACT STATEMENT: The SEQRA law requires that environmental impact statements contain specific sections. Most notable, these include: an explanation of the project, the environmental impact of the project, mitigation measures that can be taken to reduce the harm from the project, and reasonable alternatives to the project. ECL 8-0109(2).
LITERAL COMPLIANCE IS REQUIRED: Thousands of cases have grown up around the statute. Most require that the statute and the implementing regulations contained at 6 New York Code of Rules and Regulations, Section 617 be literally followed.
WHO PREPARES THE ENVIRONMENTAL IMPACT STATEMENT (EIS) AND WHO OVERSEES THE EIS PROCESS? What is known as the draft environmental impact statement is usually prepared by the project sponsor. So, for example, if the action is a subdivision development, the developer would prepare the statement. A government entity with approval powers over the project usually serves as what is known as the “lead agency.” The lead agency is responsible for the content of the EIS and the process of circulating the EIS to other “involved agencies” (those having approval authority, but not the lead agency), holding hearings, answering the public’s comments, and producing what is known as “the final environmental impact statement” which is merely the draft, combined with the public comments on the draft, and responses to the draft.
WHAT ENVIRONMENTAL IMPACTS MUST BE CONSIDERED BY AN EIS? The statute and regulations broadly define the term “environment” to include impacts to air, land, and water, animals, plants, noise, objects of historic or aesthetic significance, neighborhood character, and population distribution. ECL 8-0105(6).
WHEN IS AN ENVIRONMENTAL IMPACT STATEMENT REQUIRED? There are several considerations to determine when an environmental impact statement is required. As a matter of law, certain actions are simply excluded. These are called “Type II” actions. Other actions carry a presumption that they will have a significant impact on the environment. These are called “Type I” actions. If an action is neither Type I or Type II, it is called an “Unlisted Action” and an independent determination must be made. The SEQRA regulations set forth a list of environmental criteria that one should consider before making a determination. Since the statute requires EISs for projects that “may” have a significant impact on the environment, it is best to err on the side of caution and prepare the EIS when you are in doubt.
WHAT OPPORTUNITIES DO OTHER AGENCIES AND THE PUBLIC HAVE TO GET INVOLVED IN THE SEQRA PROCESS? The SEQRA and its implementing regulations give the public, civic groups and the community at large several opportunities to be involved in the process. “Involved agencies” must often be included it what is known as a “coordinated review” as a matter of law. This means that they must receive a copy of the draft environmental impact statement. They have an opportunity to comment on it. More importantly, they can include their own conditions on the project, which can be binding.
The public has several opportunities to participate. These include: a written period to comment on draft environmental impact statements, hearings before the lead agency to make their thoughts known, and a period to submit written comments on the final environmental impact statement.
SEQRA AND THE LEGAL PROCESS: If the public does not like the fact that an environmental impact statement has not been required, they can challenge a lead agency’s “negative declaration” i.e. its decision not to require an EIS in a court of law. However, the statute of limitations is very short in New York and the challenge must be made within a matter of days or months or the lawsuit will fail. When an entity is unhappy with such a decision, they should immediately ascertain the statute of limitations for the particular board involved and make sure they have ample time to sue.
PITFALLS OF SEQRA CASES: SEQRA cases are extremely technical. Thousands of cases fail each year because technical mistakes have been made by counsel. Most frequently, these mistakes include: a failure to make sure the entity suing has “standing”- the ability to be in court at all, a failure to include “necessary parties” in the lawsuit, a failure to sue within the applicable statute of limitations timeframe, which varies from agency to agency, a failure to “exhaust administrative remedies” before bringing the suit, a failure to make sure the action is “ripe” for review, a failure to correctly serve various governmental agencies, a failure to get all one’s evidence in at the administrative level (often, it can’t come in later), a failure to use a notice of petition, and many other technical glitches. It is critical that any citizen’s group bring their case immediately consult with a knowledgeable practitioner.
REVISIONS TO THE STATE ENVIRONMENTAL QUALITY REVIEW ACT STATUTE AND REGULATIONS ARE NEEDED: SEQRA has serious problems. It is not living up to its stated purpose to protect the environment. I know because I have worked with the statute for over two decades.
THOSE WITH VESTED INTERESTS SHOULD NOT PREPARE THE DRAFT ENVIRONMENTAL IMPACT STATEMENTS. A basic rule of law in any courtroom is to identify vested interest and/or bias and minimize it. Project sponsors know the most about their projects. Some argue that it follows that they should be allowed to prepare environmental impact statements. However, project sponsors often stand to make millions of dollars from their projects. Can they really be objective about the environmental impacts? Unlikely. If the goal of the statute is to truly minimize impacts to the environment, developers should simply pay a fee to government to conduct the environmental review. Government officials can simply independently hire professionals to evaluate the environmental impact of a project. These independent professionals would more fairly evaluate the comments offered by other government entities and the public if they knew that municipalities, not developers, were directing their efforts.
THE STATUTE OF LIMITATIONS FOR THE ARTICLE 78 SHOULD BE LENGTHENED: A second problem with SEQRA is the statute of limitations. State law requires that government decisions often challenged by in what is known as an Article 78 proceeding. This name is used because the relevant law is contained at Article 78 of the Civil Practice Law and Rules. The statute is as short as thirty days in some instances. In other instances, it is only four months long. When one considers that the statute of limitations for contracts in New York is several years, this deadline is ridiculous. The statute of limitations varies according to agency. This makes no sense. Why does one board get a four month statute of limitations and another thirty days? The public policy argument in favor of a shorter statute is that agencies must move quickly to get business done. A six month statute would accomplish this goal nicely, while allowing citizens a reasonable amount of time to challenge decisions.
THE STANDING DOCTRINE IS IN NEED OF SERIOUS REVISION: The standing doctrine is also in need of serious revision. The purpose of SEQRA to protect the environment is laudable regardless of who brings an Article 78 proceeding, except perhaps financial competitors. If the statute has been violated, who cares who has brought the action? Does it really have to be a neighbor who is immediately on top of the project? Why shouldn’t a not-for-profit environmental group be able to enforce the statute? After all, these groups have often been given a tax-exempt status from government itself, due to the public services they provide. We are lucky to have these watch dogs looking out for our interests. Why should these small groups be penalized by the standing doctrine when they are working on behalf of everybody? They should not.
THE FINALITY DOCTRINE IS IN NEED OF REVISION. The shifting finality doctrine is also in need of serious revisions. A shell game is currently played with approvals and Article 78s. There are a series of decisions that are often made, culminating in a final decision. According to the finality doctrine, one must sue from the final decision or lose. But when is a decision really final? Ironically, the case law sometimes requires a lawsuit when it comes to subdivisions after the preliminary, not the final map is approved. This adds more uncertainty. Obviously, one does not want to see the government hampered decision after decision by lawsuits. However, should the penalty for a failure to sue after a final decision be as draconian as permanent dismissal? This is not wise.
CITIZEN SUIT PROVISION NEEDED: It is sad to believe that some lawmakers and judges want to appear to protect the environment, but not actually do it, but I fear this is the case when it comes to the Article 78. It looks good on paper. But, civic groups must run the most technical of gauntlets to get a stab at the merits of their cause and have their day in court.
I look forward to reading about the brave politician who ultimately takes the bull, known as SEQRA revision, by the horns. Why not add a citizen suit provision to the statute that reimburses citizens who bring successful SEQRA suits for their legal efforts? In this way, the statue could provide a built-in policing mechanism for enforcing the statute.
WHAT IS A CITIZEN’S GROUP TO DO? HIRE A LAWYER WELL-VERSED IN SEQRA: In the meantime, a citizen group’s best bet is to hire a lawyer well-versed in the many pitfalls that SEQRA suits present and make a strenuous case at the administrative level. (See my article entitled, “Effective Advocacy Before Municipal Boards; how to be an Effective Activist.” [Webmaster. Need hyperlink here.]. In this way, their money is well spent getting to the merits of their lawsuits rather than getting pushed aside based upon some strained technicality. I have handled numerous Article 78s successfully, getting to the merits of the case.
The author is an Environmental Attorney, with certificates in Natural Resources law and Ocean and Coastal Law, who worked as the General Counsel with the East End of Long Island’s leading environmental protection organization for ten years. She has brought numerous successful SEQRA and Article 78 challenges and enabled citizen groups to have their day in court.
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