Commentary: Bad Advice on ‘Special Privileges’ for Developers

By Faith Ross

Recently Tammi Bach, the Fernandina Beach City Attorney, gave a workshop for the city’s Board of Adjustment. Based on her advice to the board, it seems our local government might not be interested in upholding local law, ordinances, or statutes if it’s going to cost money.

She told the board members, “You’re going to get sued one way or another. The suit from the citizens is going to be a heck of a lot cheaper than the suit from the developer.”

The message, delivered by the lawyer who advises city commissioners and key staff people, is clear: If both, or either side in a land use or zoning dispute threatens to sue the city, rule against the private citizens. It’s cheaper to pay their legal fees if you lose.

But this overlooks an important fact: In almost all local government cases, the local government’s insurance company hires and pays the defense attorneys to defend the city or county. The local government doesn’t lose money on insured cases, the insurance company does.

So if the city or county is properly insured, it makes no difference whether the suit was filed by citizens or a well-heeled developer or other claimant. Her message that it “saves money” for the city to cut the well-heeled claimant some slack is not only illogical – it’s untrue.

So the bigger question is, does anyone actually save money with the approach that Ms. Bach advocates? Yes indeed.

A well-funded party threatening to sue a local government definitely gets to save a lot of money if it receives a “special privilege” from the government – that is to say, a free pass not to follow the law.

These “special privileges” are very different from a legally granted variance. A variance does not allow some people to have more rights than others. A legally granted variance compensates for a property right that was lost due to a “substantial hardship” (not just a law someone doesn’t want to follow).

A “special privilege” is granted to a favored few who are given a pass to violate ordinances.

When that happens, private citizens who want the law to be enforced pay twice. First, they pay taxes that cover the city’s insurance premiums. Then they pay their own legal fees.

How does this save money for citizens who want a government based on equality? It doesn’t. And even if they win, in a sense, they’ve lost.

Any board member or elected official who accepts Ms. Bach’s spurious advice should be asked to answer some serious questions. Such as, what ethical government promotes the idea that a “special privilege” policy is appropriate? And what ethical government refuses to defend its own laws? What honest government says it “saves money” to side with the well-heeled claimant when the government is insured?

Despite the belief of some who may think local government is just a step on the way to a higher office, the constitutional requirement of equal protection under the law is at the beating heart of every governing level in the United States. The U.S. Constitution says nothing about “saving money” for well-heeled litigants who don’t want to follow the law.

Local governments that tell ordinary citizens that they will not enforce laws or ordinances under the guise of saving money by granting well-funded litigants the “special privilege” of an ordinance-free project are more than inappropriate. They are disingenuous and unlikely to carefully tend to a democratic government.