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SECURITY

Bill Van Ness's Instinct Was to Fight the Plan to Build A School Next to His Factory

But could he beat eminent domain?
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The letter that landed on Bill Van Ness's desk one morning in May 2005 was only five sentences long, but it packed a punch. The Board of Education for the city of Clifton, New Jersey, the letter explained, was interested in buying a 2.2-acre parcel owned by Van Ness Plastic Molding, a manufacturer of pet supplies. If the parties couldn't agree on a price amicably, the board could condemn the property and seize it using the power of eminent domain. Either way, Van Ness was going to lose the land. One thought ran through his head: "I want to expend all possible legal means, regardless of cost, to beat this."

Just a few months earlier, Van Ness had purchased the property from the city of Clifton for $1.1 million and begun making plans to expand his company's parking lot and add a separate driveway to accommodate the 25 tractor trailers that rumbled in and out of his 160,000-square-foot factory each day. Instead, he now faced the prospect of having 1,700 students next door. "The athletic field would be right next to our driveway," Van Ness says. A call to his insurance broker confirmed the worst: It would probably drop the company's commercial automobile coverage if there was even one accident involving a student.

Van Ness was stunned. His father, Paul, had founded Van Ness Plastic Molding in 1945. Five decades later, the company was a fixture in Clifton. By 2005, it had 225 employees and was churning out roughly a million items, from dog food bowls to kitty litter boxes, every week, for customers such as Wal-Mart (NYSE:WMT) and Target (NYSE:TGT). Now the possibility of relocating the business to China--or shutting it down altogether--seemed all too real.

Van Ness's woes began in December 2004, when Clifton voters approved a $15 million bond issue to pay for the purchase and conversion of an old industrial building a few doors down from the Van Ness facility on Brighton Road. The building would accommodate 500 freshmen from Clifton's public high school, the second largest in New Jersey, with almost 3,400 students.

Van Ness was surprised that Clifton wanted to open a school in an industrial part of town. But what happened next was shocking. A few months after voters approved the bond issue for the annex, the school board proposed a plan to expand the freshman building to accommodate an entire middle school. To do so, the board sought to issue an additional $49 million in bonds, pending voter approval, and use part of the proceeds to acquire the Van Ness land.

The day he received the board's letter, Van Ness called his corporate lawyer to plan his legal strategy. The attorney's response was blunt: Don't bother going to court. A year earlier, he reminded Van Ness, another business on Brighton Road, Mayer Textile Machine, had lost a similar battle. Rather than wasting money on a fruitless legal case, the attorney advised, Van Ness should fight the school board by convincing voters to vote against the second bond issue. He urged Van Ness to contact the Marcus Group, a public relations firm in Secaucus, New Jersey, that specializes in crisis communications. Van Ness was skeptical. He had never worked with a PR firm. What's more, the voters had passed the first referendum by a 2-to-1 margin. How could he reverse that momentum?

Two days later, another corporate attorney gave him the same advice and recommended he call one of the lawyer's golf buddies--a PR pro named Alan Marcus, owner of the Marcus Group. With two referrals pointing to Alan Marcus, Van Ness decided to hear the guy out.

A week later, Van Ness and his then 26-year-old son Will, his right-hand man at the company, drove to Secaucus to meet Marcus and several of his executives. For two hours, the group sat around a conference table as Van Ness described his predicament. Marcus and his team explained how they could drum up opposition to the referendum--TV commercials, direct mail, phone campaigns, expert witnesses to testify about safety issues. Van Ness took it all in, including the estimated cost of at least $100,000, and left to think it over. At the end of the meeting, Marcus patted Van Ness on the back and assured him they'd win. Says Van Ness: "I walked out of there with my son and said, 'This guy's nuts!"

The Decision

Van Ness bounced the question off all of his trusted advisers: his son, lawyers, and friends who knew how small-town politics work. Everyone agreed that a legal fight seemed pointless. Convinced that PR was his best option, Van Ness hired the Marcus Group.

They hatched a plan on two fronts. To open the annex, the Board of Education needed a variance from the town because the property was in an industrial zone. No variance, no annex--and, Van Ness's logic went, less chance that voters would pass the second ballot measure for the larger school. With the Marcus Group's help, Van Ness gathered experts in city planning, architecture, and traffic patterns to argue before the zoning board that the industrial site was unsafe for a school. Throughout the summer, Will Van Ness distributed fliers and antischool lawn signs to homeowners on Brighton Road to rally grass-roots support. Despite the very public battle, the elder Van Ness opted not to discuss it with his staff--about 20 percent of whom live in Clifton--because he didn't want to create anxiety. "I don't know what I would have said except that we were at risk and we were fighting it," he says.

At the hearing about the variance in August 2005, dozens of neighbors and Van Ness workers turned out to support him. The Board of Ed's attorney, Anthony D'Elia, says he was expecting some opposition from Clifton residents, but he was surprised to see Van Ness. Zoning board members peppered the Board of Education's first witness, a civil engineer who worked on the school plan, with questions about truck traffic on Brighton Road. When the Board of Ed's attorney acknowledged that a formal traffic study had not been done, the zoning board pointedly told him to do one. The meeting adjourned after an hour.

The hearings dragged on for months, and the fight got personal. At one public meeting in October, D'Elia pointedly questioned Van Ness's motives, implying that he was more concerned about his business than safety, which prompted the audience of more than 100 people to "cheer and guffaw at the spirited repartee between the two men," according to an account in The Record, a local newspaper. Van Ness says he was labeled by board members and others as a rich, out-of-town businessman who didn't care about working-class Clifton. He countered that his business pays $300,000 in property taxes every year and that its $5 million payroll provides jobs to blue-collar workers. In the end, his PR firm advised him to stop talking to the press and also stop talking at meetings to focus the debate on the schools, rather than his personal life.

Meanwhile, Van Ness and his PR team readied the second half of their strategy: an all-out media blitz opposing the referendum, set for January 24, 2006, for the building of the expanded school on the Van Ness property. They blanketed the media with a simple message: The industrial site was unsafe for a school, there were viable alternatives in town, and the plan cost too much. A slick 30-second commercial showing a picture of the site, with close-ups of an 18-wheeler and school-age children, aired on cable channels like ESPN. The Marcus Group ran a phone-a-thon that reached 5,000 voters and took out full-page ads in local papers. They mailed antidevelopment post cards to 7,000 households in Clifton, a town with 80,000 residents. The households were screened from public databases in an attempt to target those most likely to vote in school and municipal elections, senior citizens, and--in a nod to the company's line of business--local pet owners (Clifton residents must register their dogs with the city). Some mailers came back with nasty comments saying that Van Ness should stay out of the town's business. The school board, for its part, spent $8,000 on a smaller campaign that touted the benefits of the new school, including smaller class sizes, to voters.

On the day of the vote, Van Ness, his son, and a sales manager were attending a Wal-Mart vendor conference in Kansas City, Missouri. Van Ness was not optimistic. He had spent nearly $300,000 and a third of his time on the issue, but he didn't feel that he had convinced enough voters that the Brighton Road school was a bad idea. "We were resigned to the fact that they were going to destroy Clifton as a viable place for our business," he says. Sitting alone in his room at the Embassy Suites that night watching CNN, Van Ness got a call on his cell phone. It was Denyse Dabrowski, an executive with the Marcus Group, calling with the results of the vote. Van Ness knew the outcome as soon as he heard her voice. He had won, by a 3-to-2 margin. Voter turnout was double what it had been for the first referendum. "I was shaking, I couldn't believe it," he says.

Despite Van Ness's victory, the variance for the freshmen annex was still up in the air. Van Ness and his team of experts continued to attend hearings. Finally, after 17 three-hour meetings spanning seven months, the zoning board issued its decision in March with a 5-2 vote: No variance. The Board of Education appealed the ruling to New Jersey's Superior Court, which heard oral arguments in November and can uphold it, overturn it, or send the variance back to the zoning board for changes. The loser can appeal to the court's appellate division. "It's not over yet," Van Ness says. Nevertheless, his new driveway and parking lot should be done by the end of December.

The Experts Weigh In

A flawed strategy

Van Ness made the right decision, but he should have communicated with his employees about what he was doing and why. If he had done so, his employees would have had a message to carry outside the company. There are only two choices when a situation is being widely discussed already: Control the message yourself or let the rumor mill control it. By keeping his staff out of the loop, Van Ness denied himself a force that could have worked to his advantage.

Jonathan Bernstein
Founder
Bernstein Crisis Management
Sierra Madre, California

Best choice for the business

This case proves that there are ways to win eminent domain battles outside court. Speaking from experience, it probably would have been much more costly for Van Ness to choose the legal route. My company lost its building after a six-year eminent domain battle that cost about $200,000. Even worse, we temporarily lost our biggest client because of the time and energy we put into the legal fight.

Mary Beth Wilker
Founder
Wilker Design
Cincinnati

The safest bet

Van Ness didn't have much of a chance in court. Even if he had pressed the safety issue, there would have been a presumption by the court that the Board of Education knew what it was doing. The government is given a tremendous amount of discretion to acquire private property. In 20 years of practice, I've been able to stop the government about 10 times. That's why you have to fight an eminent domain case in the press, at city hall, and only then in the courts, if it comes to that.

Fred Werdine
Eminent domain attorney
Fowler White Boggs Banker
Tampa

What do you think?
Would you have handled the eminent domain battle differently? Let us know at casestudy@inc.com.

On the day of the vote, Van Ness, his son, and a sales manager were attending a Wal-Mart vendor conference in Kansas City, Missouri. Van Ness was not optimistic. He had spent nearly $300,000 and a third of his time on the issue, but he didn't feel that he had convinced enough voters that the Brighton Road school was a bad idea. "We were resigned to the fact that they were going to destroy Clifton as a viable place for our business," he says. Sitting alone in his room at the Embassy Suites that night watching CNN, Van Ness got a call on his cell phone. It was Denyse Dabrowski, an executive with the Marcus Group, calling with the results of the vote. Van Ness knew the outcome as soon as he heard her voice. He had won, by a 3-to-2 margin. Voter turnout was double what it had been for the first referendum. "I was shaking, I couldn't believe it," he says.

Despite Van Ness's victory, the variance for the freshmen annex was still up in the air. Van Ness and his team of experts continued to attend hearings. Finally, after 17 three-hour meetings spanning seven months, the zoning board issued its decision in March with a 5-2 vote: No variance. The Board of Education appealed the ruling to New Jersey's Superior Court, which heard oral arguments in November and can uphold it, overturn it, or send the variance back to the zoning board for changes. The loser can appeal to the court's appellate division. "It's not over yet," Van Ness says. Nevertheless, his new driveway and parking lot should be done by the end of December.

The Experts Weigh In

A flawed strategy

Van Ness made the right decision, but he should have communicated with his employees about what he was doing and why. If he had done so, his employees would have had a message to carry outside the company. There are only two choices when a situation is being widely discussed already: Control the message yourself or let the rumor mill control it. By keeping his staff out of the loop, Van Ness denied himself a force that could have worked to his advantage.

Jonathan Bernstein
Founder
Bernstein Crisis Management
Sierra Madre, California

Best choice for the business

This case proves that there are ways to win eminent domain battles outside court. Speaking from experience, it probably would have been much more costly for Van Ness to choose the legal route. My company lost its building after a six-year eminent domain battle that cost about $200,000. Even worse, we temporarily lost our biggest client because of the time and energy we put into the legal fight.

Mary Beth Wilker
Founder
Wilker Design
Cincinnati

The safest bet

Van Ness didn't have much of a chance in court. Even if he had pressed the safety issue, there would have been a presumption by the court that the Board of Education knew what it was doing. The government is given a tremendous amount of discretion to acquire private property. In 20 years of practice, I've been able to stop the government about 10 times. That's why you have to fight an eminent domain case in the press, at city hall, and only then in the courts, if it comes to that.

Fred Werdine
Eminent domain attorney
Fowler White Boggs Banker
Tampa

What do you think?
Would you have handled the eminent domain battle differently? Let us know at casestudy@inc.com.

On the day of the vote, Van Ness, his son, and a sales manager were attending a Wal-Mart vendor conference in Kansas City, Missouri. Van Ness was not optimistic. He had spent nearly $300,000 and a third of his time on the issue, but he didn't feel that he had convinced enough voters that the Brighton Road school was a bad idea. "We were resigned to the fact that they were going to destroy Clifton as a viable place for our business," he says. Sitting alone in his room at the Embassy Suites that night watching CNN, Van Ness got a call on his cell phone. It was Denyse Dabrowski, an executive with the Marcus Group, calling with the results of the vote. Van Ness knew the outcome as soon as he heard her voice. He had won, by a 3-to-2 margin. Voter turnout was double what it had been for the first referendum. "I was shaking, I couldn't believe it," he says.

Despite Van Ness's victory, the variance for the freshmen annex was still up in the air. Van Ness and his team of experts continued to attend hearings. Finally, after 17 three-hour meetings spanning seven months, the zoning board issued its decision in March with a 5-2 vote: No variance. The Board of Education appealed the ruling to New Jersey's Superior Court, which heard oral arguments in November and can uphold it, overturn it, or send the variance back to the zoning board for changes. The loser can appeal to the court's appellate division. "It's not over yet," Van Ness says. Nevertheless, his new driveway and parking lot should be done by the end of December.

The Experts Weigh In

A flawed strategy

Van Ness made the right decision, but he should have communicated with his employees about what he was doing and why. If he had done so, his employees would have had a message to carry outside the company. There are only two choices when a situation is being widely discussed already: Control the message yourself or let the rumor mill control it. By keeping his staff out of the loop, Van Ness denied himself a force that could have worked to his advantage.

Jonathan Bernstein
Founder
Bernstein Crisis Management
Sierra Madre, California

Best choice for the business

This case proves that there are ways to win eminent domain battles outside court. Speaking from experience, it probably would have been much more costly for Van Ness to choose the legal route. My company lost its building after a six-year eminent domain battle that cost about $200,000. Even worse, we temporarily lost our biggest client because of the time and energy we put into the legal fight.

Mary Beth Wilker
Founder
Wilker Design
Cincinnati

The safest bet

Van Ness didn't have much of a chance in court. Even if he had pressed the safety issue, there would have been a presumption by the court that the Board of Education knew what it was doing. The government is given a tremendous amount of discretion to acquire private property. In 20 years of practice, I've been able to stop the government about 10 times. That's why you have to fight an eminent domain case in the press, at city hall, and only then in the courts, if it comes to that.

Fred Werdine
Eminent domain attorney
Fowler White Boggs Banker
Tampa

What do you think?
Would you have handled the eminent domain battle differently? Let us know at casestudy@inc.com.

Last updated: Dec 1, 2006




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