“We Might Be Sued” Is Not a Land-Use Policy

Whenever local government considers a significant regulation, someone eventually raises the same objection: “But we might be sued.”

That possibility deserves attention. It does not deserve control.

The threat of litigation is a legitimate consideration in public decision-making. Governments should act within their authority, provide fair procedures, develop substantial records, respect vested rights, and avoid arbitrary or discriminatory regulation. But the possibility that an affected business might file a lawsuit is not, by itself, an argument against governing.

If it were, almost every meaningful exercise of local authority could be defeated by the party with the greatest resources to litigate.

That is particularly important in the debate over Pulaski County Item 26-I-56, which establishes a Conditional Use Permit framework for high-intensity digital infrastructure projects.

These projects can involve extraordinary electrical demand, large industrial campuses, major water requirements, continuous operations, generators, batteries, cooling equipment, heavy construction traffic, drainage impacts, emergency-response needs, and long-term effects on surrounding property.

Those issues do not disappear because regulating them might produce litigation.

The proper question is not, “Could someone sue?”

Anyone with standing and a plausible legal theory can file a lawsuit.

The proper questions are: Does the County have lawful authority? Has it followed fair procedures? Are its standards clear? Are its decisions supported by evidence? Are its conditions related and proportional to actual project impacts?

I drafted Item 26-I-56 around those questions.

It does not simply give officials unlimited discretion. It establishes defined application requirements, public notice, hearings, written findings, appeal rights, evidentiary standards, performance requirements, monitoring procedures, enforcement safeguards, and judicial review.

It also expressly recognizes limits on County authority. It does not purport to regulate electric utility rates, tariffs, or service contracts. It recognizes state and federal jurisdiction. It preserves vested rights that actually exist under Arkansas law.

That last point deserves particular attention.

“Vested rights” should not become a political slogan meaning, “The developer has already spent a lot of money.”

Arkansas law is considerably more demanding.

Arkansas cases distinguish between preliminary investment and a legally protected right to continue an established use. Property acquisition, planning, contracts, utility arrangements, grading, clearing, and even substantial expenditures do not automatically establish vested rights.

The inquiry is fact-specific and concerns two primary elements: (1) whether the owner has substantially entered upon the actual use before the new restriction takes effect, and (2) good faith.

That is why Item 26-I-56 does not say vested rights can never exist. Instead, it preserves whatever rights are independently established under Arkansas law while refusing to declare that preliminary approvals, utility milestones, private expenditures, or similar steps automatically become County land-use entitlements.

That is a cautious position, not a reckless one.

There is also a tendency to discuss litigation risk as though only regulation creates legal exposure.

That is a mistake.

Poorly structured approvals can produce litigation too.

Neighboring property owners may challenge County decisions. Disputes may arise over drainage, roads, noise, emergency response, permit modifications, enforcement, procedural fairness, or whether officials improperly treated utility approvals as substitutes for County land-use determinations.

A weak regulatory process does not eliminate litigation risks. It may simply change who sues and what they sue about.

A rigorous process actually strengthens the County’s defensive position.

Public notice creates procedural fairness.

Technical studies create evidence.

Public hearings create a record.

Written findings show how officials applied the law.

Defined standards reduce the risk of arbitrariness.

Appeal procedures provide orderly review.

Proportionality requirements constrain permit conditions.

Clear rules for existing projects and material modifications reduce uncertainty.

Those are the characteristics of a government regulatory framework that is preparing to defend its decisions responsibly, vigorously, and effectively.

There is an important difference between avoiding unnecessary litigation and governing according to fear of litigation.

The first is prudent.

The second is the road to timidity and paralysis.

Government officials are regularly required to make decisions that powerful interests dislike. Businesses may threaten litigation. Property owners may threaten litigation. Advocacy organizations may threaten litigation. Sometimes lawsuits follow.

The responsibility of public officials is not to guarantee that nobody ever files a lawsuit.

Their responsibility is to make lawful, fair, evidence-based decisions they are prepared to successfully defend.

That should be the standard applied to Item 26-I-56.

The ordinance was carefully drafted with possibility of litigation in mind. It has rigorous criteria that encourage precision, fairness, restraint, documentation, and careful administration at every stage of the process for regulating hyperspace digital infrastructure development projects and operations.

Pulaski County lawmakers should not allow the Planning Board to merely serve as a development project approval desk.

And our lawmakers should not allow concern that “we might be sued” to become a substitute for deciding what responsible land-use regulations are required and proper to protect our County, our Communities, and our Future.

A government that never risks being sued is not a government acting wisely.

It is merely a government too foolish and weak to protect the public from bullies, shoddy vendors, rascals, and con artists.

Pulaski County should never adopt that approach to "governing."

One County.

One Community.

One Future.

www.griffen4pulaskicounty.org