A View from Glen Hill: Effective litigation, like war, lies in how force is used

Written by Stephen Hudspeth
Wednesday, 04 November 2009 14:31

Leslie Gelb, president emeritus of the Council on Foreign Relations, in his recent book, Power Rules: How Common Sense Can Rescue American Foreign Policy, argues unsurprisingly that having the ability to project military power convincingly (but ideally without having actually to use military force) is something the U.S. definitely needs in coordination with skillful diplomacy and adroitly used economic power.

Mr. Gelb’s distinguishes between having military power and using military force. While military power can be enhanced by successful use of military force, it is diminished when military force is either used ineffectively to advance national purpose or not used at all, even under provocation. Conversely, Mr. Gelb vigorously urges that military force used successfully to advance a strong national purpose and limited to what needs to be accomplished is a tremendously effective tool for enhancing the future projection of military power without having to use military force.

Litigation power in our society is in many respects the civil equivalent of military power. Being known for using litigation power effectively can actually lessen the need to use litigation force. Conversely, if one is known to be litigation averse to the point that every litigation situation is avoided, the likely result is actually to provoke more litigation and threats of litigation. It is significant to add that use of litigation force in certain situations can be successful regardless of the actual outcome of the case and, despite an unsuccessful outcome in the courts, can serve to enhance litigation power.

This general proposition is as true for town litigation as for other forms of litigation. An actual Wilton town-litigation example with quantifiable consequences serves to illustrate my point, but first I want to emphasize that by using this example, I don’t mean to suggest that affordable housing should not be a priority for Wilton. To the contrary, it should be a key element of Wilton’s housing planning, and in fact Wilton has tried to encourage affordable housing, including for seniors (like Wilton Commons), within careful design standards and at suitable locations.

Now to my specific example: Consider the costs of litigation versus the monetary benefits achieved in Wilton’s 10-year court battle over the 10-acre, 100-unit Avalon housing development on the heights above Route 7 opposite Storage Deluxe, which our town opposed over design and siting issues.

The cost to our town of that litigation was around $250,000. That’s a lot of money, but consider what would have happened if our town had not litigated with Avalon — measured for this purpose exclusively from a financial standpoint.

Wilton’s average variable cost per student is $9,000. (Our average total cost per student is $16,000.) The Avalon development is projected to add 25-30 school-aged children to Wilton. So, the additional education costs Wilton would incur as a result of the project are about $250,000 annually, calculated on a conservative, average-variable-cost-only basis. Our town also, of course, would incur increased municipal-service costs from having an estimated 200 people living in the development. Average municipal non-education costs per person in Wilton are slightly over $2,000 (dividing the selectmen’s budget by Wilton’s population), representing another $400,000 of annual costs. Adding annual educational and non-educational town costs together yields $650,000.

Offsetting those costs in part would be the annual town revenues from Avalon for property taxes and sewer assessments, aggregating approximately $400,000, and from Avalon residents’ personal property taxes (averaging $250 per adult), aggregating $50,000 — for total annual revenues of $450,000.

Additional costs of $650,000 less revenues of $450,000 yield projected net costs for Wilton from the Avalon development of $200,000 annually.

Over the 10 years that the Avalon litigation persisted, that’s a town savings of $2 million against our town’s $250,000 in litigation expenses. Thus, while our town lost the Avalon litigation in the courts, the fact is that it was actually a substantial winner financially over the period of litigation delay during which it achieved an eight-fold financial gain over expenditures — a gain that continues to accrue as the recent state of the housing market is apparently further delaying the project. As a sensitivity test, even if our town’s ten-year uncovered costs from the Avalon development had been 50% less ($1 million) and the litigation expenses had been double what they were ($500,000), Wilton would still have enjoyed a two-fold financial gain from the Avalon litigation.

So it’s wise for a town, like a nation, to be known as one that, while it doesn’t pick a fight, doesn’t avoid a battle at all costs either.

Mr. Hudspeth lives on Glen Hill Road.