Chapter 29 Trial Preparation

• Library: The Zoning and Land Use Handbook (ABA) (2016 Ed.)

Chapter 29 Trial Preparation

A. Chronology of Events

In most zoning litigation, the early preparation of a chronology of events will be helpful. Each municipal action and each document should be listed in chronological order. Conversations and meetings of which there is no formal record should also be included in the chronology. Then a list of subjects that are pertinent to the litigation should be prepared, and the chronology should be cross-indexed. In cases in which acts and expenditures in reliance on existing zoning restrictions are alleged, an effective detailing of the sequence of events can be extremely persuasive.¹

B. Stipulation to Existing Uses of Land and Zoning in a Neighborhood

A substantial amount of time is consumed in many zoning cases on multiple recitations of the uses of land and zoning in the neighborhood. This testimony clutters the record and often bores judges. Only rarely is there any dispute over what are the existing uses and zoning of the neighborhood. One way to avoid dull recitations of the neighborhood geography is to stipulate the existing uses and zoning in the neighborhood.

Most jurisdictions require a trial court to hold an initial case management conference,² the product of which is an order that reflects the action to be taken and controls the course of litigation unless and until modified subsequently. This order should contain an agreed description of the area involved; a statement of any factual matters on which there is agreement; a statement of contested issues of fact and law; a list of exhibits together with such stipulations as can be reached on matters of foundations and admissibility; and a list of the witnesses that each party plans to call.

C. Maps, Photographs, and Other Exhibits

Land use litigation is highly visual litigation. The more visual the aids that are supplied in connection with the land use case, the better the presentation will be. There should be both ground-level and aerial photographs. Oblique aerials are particularly useful in giving a sense of the relationship of land uses in the area in question to each other. Land use maps, zoning maps, surveys, and topographical maps all play a part in illustrating the character of the area and in demonstrating visually what might otherwise be confusing. In addition, site plans, perspective renderings, and even architectural models help illustrate of the type of use that is to be established on the property if the litigation succeeds.

D. Expert Witnesses

Perhaps more than any other type of litigation, land use cases depend on expert testimony. Too frequently, the expert is retained too late to offer anything more than a fact opinion based on a superficial "windshield" survey of the neighborhood.

To be effective, expert...