'Insider' status can help cut muni red tape

Last time we reviewed a number of issues concerning situations whereveterinarians and their local or state governments come into conflict.

Disagreements with the authority of the government can be a particularlyfrustrating problem because the personalities we deal with may not havethe enthusiasm and motivation which we might have for solving whatever problemwe, as veterinarians, are having.

Try negotiation first

It is always best to try to resolve problems with local governments byfinding an individual-a real person-with whom you can brainstorm the problemand try to come up with a solution which will satisfy the municipality andyour needs with the least possible hassle and cost.

Situations do arise, though, where you simply cannot get what you wantfrom your municipality. It can also happen that some government decidesto take an action or fail to take an action which directly impacts an individualand may be, or at least seem, unjust. If negotiation and persuasion failto do the trick, a lawsuit may have to be considered.

Consider 'cost'

Suing your local town or sewer district or zoning board may sound likea simple matter, but it is not to be undertaken without due consideration.

There are a number of factors to consider before filing a complaint againsta government or special district, which should be considered before takingaction.

Government has its advantages

The best way to look at the desirability of suing a local governmentis to use an example.

Let's say that Dr. Smith has identified a perfect location for his newveterinary practice in a free-standing building in downtown Bowzertown.

The site has good parking availability and is in a central location withgood visibility. The rub: The town won't grant a zoning variance to permitthe practice of veterinary medicine. (Dr. Smith is almost certain that hecan't get the zoning changed because Dr. Jones and Dr. Brown are alreadypracticing nearby and each has a relative on the zoning board.)

"You'll hear from my lawyer!" Smith exclaims as he storms outof Town Hall. The board remains remarkably calm. They aren't really afraidof having their decision overturned by a judge and the reasons are plentiful.

First, the zoning board doesn't expect Dr. Smith to get around to doinganything about his irritation for a couple of months. Most people procrastinatewhen moving to pursue their rights and in this instance, delay is in thetown's favor. Many jurisdictions require an aggrieved party to file eithera summons or at least a notice informing the government that it is beingsued within a very short period of time after they take an action that isfelt to be illegal. This is not a statute of limitations. Rather, it isa special requirement (often mandating action within as little as 30 to90 days) limiting the rights of citizens to sue municipalities.

Second, Bowzertown knows that while it may not be a rich little town,it has a whole lot more money than Dr. Smith. If a lawsuit is brought withinthe necessary time limit, the town probably already has experienced counsel(the town attorney) on retainer to handle inconveniences like lawsuits broughtby people like Dr. Smith. If the amount of hours a town attorney spendson the case exceed his retainer, he can simply bill Bowzertown and the extracosts will show up in the following year's tax levy. Meanwhile, Dr. Smith'slawyer explains that he charges $135 per hour to pursue such claims with$5,000 payable in advance. Appeals from an adverse court verdict, of course,would be far more. Suddenly, that building isn't looking too attractive.

Uphill battle

Third, Bowzertown and its town attorney know something that Dr. Smithmay not find out until later. They know that Dr. Smith is facing an enormousuphill battle regarding proof. They also know that Smith's burden of proofis much more formidable than it would be if we were just suing some personwho did him wrong. Here's how it works:

All Dr. Smith knows is that he doesn't like the fact that the town willnot give him the zoning change he wants.

He suspects that he is somehow being discriminated against because theboard would like to exclude any new veterinarians from opening up in thedowntown area. All he can prove though, is that he applied for a zoningchange and it was denied. He has no specific legal right to something justbecause that something seems like a good idea and granting it really wouldn'thurt anybody. He cannot prove that he has been denied equal protection underthe law on the theory that the same relief was granted to other veterinarianswhile it was denied to him. This is because no one else has ever asked forthe same relief.

Abuse of discretion

Now let's assume that Dr. Smith has some outstanding proof. Let's sayhe obtained an interagency memo between the town board and the zoning boardwhich indicates that the municipality planned to deny the zoning changebecause it already feels that the area had enough veterinarians. Dr. Smith'slawyer must do much more than show that the decision was not sensible orthat it would do Dr. Smith or the community harm. In many civil actionsbrought against governments and government agencies, a petitioner must showthat the action of the government was an abuse of discretion or that theaction amounted to behavior which was arbitrary and capricious.

Meeting a standard of proof is stringent as those is a Herculean task.What's more, judges just plain don't like to substitute their decision-makingskills for those of local government which is presumed to know what is bestfor the local people who elected it.

What to do?

So what is a veterinarian to do? Obviously, the legal cards are stackedagainst individuals and businesspeople who take on the system. The systemis entrenched and to some extent, it is designed to discourage judicialredress.

The simple answer: be an insider. It was pointed out in the first ofthese two articles on local government that folks get a lot more from theirlocality when they act "local." If you give the officials a hardtime, it will likely come back to haunt you. On the other hand, if you makeyourself known and everyone considers you a popular person, you needn'tworry about what to do when the town refuses your reasonable requests. Whenyou ask for something, the locals will probably try their best to do asyou ask. And that's more powerful than a truckload of lawyers.