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Neutralizing the Objector Lawsuit
Builders seeking approval for proposed real estate developments must in almost all American localities navigate a complex series of required procedural steps, but for those who persevere and succeed in obtaining a permit, one eleventh-hour device can bring all those efforts to naught: the objector lawsuit. Easy to file but difficult to resolve, lawsuits by development opponents even when unsuccessful can delay projects by a year or more, playing havoc with cost and time estimates. Why are these suits so simple to start? The American common law system sets a low bar for a plaintiff to establish a right to maintain a lawsuit — known as “standing” — in which the mere claim that an injury has occurred, or even may occur in the future, is sufficient to keep a case moving along. Recognizing plaintiffs’ interest in having their day in court and the prudential consideration of having claims decided on their merits, judges will rarely find an injury to be so minor, indirect or speculative that it’s not worth judicial attention. While these considerations are important, they were not formulated with the expectation that they would be used to thwart individual exercise of property rights and the ordinary activities of civilized life. Some may recall the 1972 Supreme Court case of Sierra Club v. Morton, where the Court narrowly (4-3) decided that an environmental organization couldn’t rely upon alleged injuries to nature, rather than to the organization itself, to establish its right to sue to stop a planned ski resort, and which resulted in a dissent by Justice Douglas arguing for “conferral of standing upon environmental objects to sue for their own preservation.” The holding was quickly a moot point, as environmental organizations and other entities opposed to development recognized that they could recruit individual members who could allege […]
