Understanding Force Majeure in Land Use

Force majeure represents unforeseen events beyond the control of the parties involved in a contract or land use agreement. These events, typically stemming from an act of God, can significantly impact compliance with permits and contractual obligations, leading to legal and operational challenges. In this column, we delve into the concept of force majeure, its key elements, and its implications in land use and other practice areas, drawing on insights from the experienced land use Director in our San Bernardino office, Brent McManigal.

What is Force Majeure?

Force majeure encompasses events that are typically unforeseen and out of the control of both parties involved in a contract or the landowner. These types of events may cause a property or business to be out of compliance with permit or contract requirements. In the context of land use, force majeure often refers to accidents or weather events that lead to violations of laws or permit requirements. Examples include vehicle accidents, extreme weather events, sudden regulatory changes, or moratoriums, none of which are caused by the landowner or their employees.

Key Elements for Invoking Force Majeure

To successfully invoke a force majeure clause, certain key elements must be present including:

• The event must be one that could not have been reasonably foreseen.
• It must be completely beyond the control of the parties involved.
• The consequences of the event could not have been prevented despite reasonable precautions and compliance with applicable laws.

Interpretation of Force Majeure Clauses

The interpretation of force majeure clauses varies and is highly fact-specific. Courts typically look at the specific language within the contract, permit, or regulation to determine whether a force majeure event applies. Common force majeure events include extreme weather, earthquakes, strikes, civil disorder, disruption to transportation system(s), war, and other types of similar events that are out of the control of the parties. A critical factor in interpretation is whether the event was foreseeable and whether all reasonable precautions were taken to protect against its occurrence.

Impact on Ongoing Land Use Projects

Force majeure can significantly affect ongoing land use projects, particularly those involving operating businesses or construction activities. An act of God or similar event may lead to permit violations, halting progress and requiring legal and regulatory intervention to resolve compliance issues.

Mitigating Risks Associated with Force Majeure

Landowners and developers can take several practical steps to mitigate the risks associated with force majeure events including the following:

• Adherence to Permit Conditions: Ensure that all permit conditions and mitigation measures are in place at all times, particularly those related to stormwater management.
• Storm Preparedness: Verify and maintain stormwater management best practices and keep containment basins for outdoor tanks emptied and maintained before any impending storm events.
• Regulatory Vigilance: Stay vigilant and knowledgeable of permit and regulatory requirements governing your project or business, especially those requirements that are not core to the business, like stormwater and containment.

By understanding and maintaining compliance with permit and contract requirements if a force majeure event occurs, landowners and developers can better navigate the challenges posed by these unforeseen circumstances, ensuring continued compliance and minimizing disruptions to their projects and operations.