The lawyers at Kaplan Kirsch & Rockwell represent clients throughout the country in complex land use and zoning matters, including land use litigation. The range of the firm's practice is illustrated by the diversity of the firm's clients: from real estate development firms to local governments, and from community organizations to corporate landowners affected by local and state zoning and land use decisions. The issues that arise in the firm's land use and zoning practice cover a wide spectrum: the drafting, defending and challenging of zoning ordinances; counseling on entitlements and structuring of real estate development projects; advising clients on complex federal-private land transfers; and eminent domain counseling and litigation (both as plaintiff and defendant).



The firm focuses on assisting clients to develop a comprehensive strategy for projects where there is an interplay of zoning and other land use, eminent domain or development issues. Clients frequently call upon the firm's lawyers to develop strategic plans for addressing the whole range of legal issues that arise in connection with a land use undertaking - plans that are then implemented in cooperation with in-house counsel or counsel with specialized local expertise.

The land use matters the firm handles inevitably tend to involve complex legal issues. For example, the firm's lawyers have represented a suburban municipality in zoning and eminent domain matters arising from the proposed construction of a federally-funded road through environmentally sensitive property, much of which is owned by another municipality. In addition to developing a comprehensive strategy for securing necessary governmental approvals for the road project, the firm's lawyers assisted the client in protracted (and ultimately successful) eminent domain litigation, in litigation challenging the validity of its zoning ordinances, and in planning for a related high-technology redevelopment project. On behalf of several Texas cities, the firm's lawyers crafted a strategy which combined elements of their eminent domain and zoning authorities to forestall another municipality's efforts to exert control over large portions of their jurisdiction. On behalf of an Ohio municipality, the firm's lawyers drafted adult business, billboard and sign regulations as part of a broader economic development strategy that required careful attention to First Amendment limitations.

The zoning and land use cases that Kaplan Kirsch & Rockwell lawyers handle often defy simple categorization. In the zoning area, the firm's lawyers not only have drafted ordinances for many municipal clients, but have successfully raised legal issues as diverse as historic preservation law, constitutional authority of municipalities, and federal environmental protection requirements both to defend and to attack zoning ordinances. Our eminent domain counseling and litigation, for example, has involved issues such as federal preemption, state constitutional powers of cities, complex environmental remediation issues and problems of national security.



Over the past several years, the entitlement process for major development projects has become increasingly complex and controversial. Processing entitlements for a major land development can require several years and involve extensive negotiations among governmental entities, private developers and interested neighborhood, environmental and other organizations. Lawyers skilled in the process need to understand and be comfortable with the legal requirements related to the entitlement process and well as the political arena in which entitlements are processed and approved. In addition, strategic planning is essential to successfully concluding the entitlement process.

Lawyers at Kaplan Kirsch & Rockwell maintain an active regional and national practice in land use and entitlements law. The firm's lawyers have represented clients in a wide range of land use issues that arise throughout the entire planning and entitlement process for major projects, including the processing of zoning, subdivision, site plan and other land use applications before governmental entities and representation of clients in front of local government approval bodies.

The Kaplan Kirsch & Rockwell lawyers have extensive experience helping clients meet the legal and political challenges facing large and small-scale entitlement projects. As legal counsel to both landowners and governmental entities, the firm frequently has helped clients navigate the entitlement maze, anticipate potential problems, understand the interconnection among different entitlement processes, and obtain approvals through local governmental entities such as planning commissions and City Councils. As a result of these representations, the firm's lawyers have developed a keen understanding of various kinds of zoning, subdivision, design review, overlay and other local land use regulations that may affect a particular development project. In many cases, the firm has been involved in drafting and revising legislation, findings, staff reports and related documents.

The firm's work has included the creation of comprehensive land use, transportation, and other master planning documents for local governments; drafting of related ordinances; the preparation and negotiation of intergovernmental agreements, development agreements related to vested rights and other issues, subdivision agreements and other agreements for local governments, developers and neighborhood organizations related to land development and entitlements; and the defense of project approvals against legal challenges and the resolution of disputes through settlement agreements and other means.



In most jurisdictions, the guiding framework for local land use regulations is the comprehensive or master plan. Lately, many local governments have been looking to their comprehensive plans to help them better address local land use issues, including linking land use and transportation planning, incorporating design review, implementing affordable housing requirements and other issues. As a result, may local governments have been taking obsolete, vague and out-of-date comprehensive plans and turning them into more detailed and current policy oriented documents.

Kaplan Kirsch & Rockwell lawyers have worked with many local governments and planning consultants throughout the country on these types of comprehensive planning revisions, in the process becoming familiar with the current tools that are being implemented through comprehensive plans, including transferable development rights, design review processes, affordable housing, ways to connect land use and transportation planning, growth management, and other such issues. The firm also understands the importance of meaningful public participation in developing these types of plans and has worked with clients and other consultants in developing and implementing comprehensive public participation processes.



Successful development projects often require private agreements involving governmental entities, private developers, regulatory agencies, neighborhood groups and other interest groups. While these agreements are similar to private contracts, they take on a different character in the land use arena, because they are often negotiated in public and must sometimes be approved by one or more local governmental entities. In addition, in entering into these agreements, local governments must be careful to meet their legal requirements related to issues including improper delegation of authority and contracting away police powers. Lawyers at Kaplan Kirsch & Rockwell have had extensive experience negotiating many different types of these agreements. The firm's lawyers have drafted and negotiated comprehensive intergovernmental agreements between two or more governmental entities, development agreements insuring the availability of vested development rights, agreements between developers and local governments related to affordable housing and other issues, agreements between developers and neighborhood organizations, and numerous other types of agreements. In addition, the firm has worked with clients to process these agreements through public participation processes and local governmental approval requirements.



The firm's lawyers have developed a reputation for creative approaches to solving issues concerning conservation easements. Conservation easements have become an essential part of the land use lawyer's tool box, enabling clients to meet land preservation and open space goals, obtain tax benefits - including marketable tax credits in some states - and develop partnerships with neighboring landowners. The firm's lawyers have counseled clients on the use of conservation easements in numerous cases, using them as one component to facilitate a multi-party land exchange and to close a real estate transaction with both preservation and development aspects. In another case, a firm lawyer represented donors of a conservation easement option in a dispute with fellow donors, negotiating an amended option that kept in place one of the largest conservation easement donations in Colorado history. Owners of land under conservation easement, particularly working ranches, have turned to firm lawyers for assistance in maintaining the preserved lands intact from competing land uses and assertions of conflicting rights (for example, claimed access rights through lands under conservation easement).



Controversial development projects and project entitlements often are subject to legal challenge. The firm's lawyers have extensive experience both defending and challenging project approvals in court. While many of these legal challenges are decided in court, they are often resolved through formal mediation or dispute resolution or less formal agreements among the disputing parties. The firm has been involved in numerous settlement processes where the firm's lawyers have had primary responsibility for drafting and negotiating comprehensive settlement agreements to resolve litigation. Kaplan Kirsch & Rockwell lawyers are experienced in working intimately with local counsel in litigation over zoning and land use issues, particularly where the issues in any one lawsuit could have precedential effects on the overall success of a larger project.