Land Development Challenges That Can Lead to Litigation Expert Article

Land development can be described as a process of altering land uses and/or physical conditions of real property. Site Construction, also commonly referred to as “Civil” or “Heavy” Construction requires a developer to navigate a complex landscape of planning, entitlements and approvals, design development, and permitting processes. Missteps along this process can result in damage, injuries, adverse environmental impacts, and/or significant financial losses and exposure.

This article highlights some issues, challenges, and hazards that are typical of Site/Civil/Heavy Construction work and common to our forensic investigations.

Land Development Challenges That Can Lead to Litigation - Expert Article

Large scale land development projects are transformative. Engineers and construction crews can reshape the earth, demolish or preserve existing structures, or provide engineered stormwater management waterways and other infrastructure. These projects cannot occur without extensive planning, the alteration of natural features and systems, or the use of heavy equipment. The complications of land development projects make them particularly susceptible to missteps, unforeseen conditions and delays.

Existing site characteristics may be broadly characterized as previously undeveloped or “green-field,” redevelopment and/or in-fill development, or reclamation of a “brown-field” site. It is important to understand the pre-development uses and conditions in your dispute, as they will inform the planning and project approval/permitting process, and construction means and methods which may be influenced by soil conditions and the presence of soil/groundwater contaminants.

Ultimate (i.e. design end-state) uses may include one or more of the following elements: recreational, residential, mixed-use, commercial, and/or industrial land uses. The scale of development may range from a single family residential home-site or local commercial site, to city-scale master planned communities, regional commercial projects, or massive industrial complexes. While the scale of the project will affect planning and permitting, projects of all sizes share a similar responsibility to safeguard the environment, workers, and the public.

Project success begins during the planning and design phase and you should expect experts working on your case to evaluate the engineering and planning that occurred to address the specific development conditions. The physical development conditions across a worksite may be variable. A multilayered system of local, state, and federal environmental, land use, and Occupational Health and Safety requirements creates a complex regulatory environment. Worksite challenges, and design or regulatory constraints may include:

• Environmental (e.g. threatened and endangered species; wetlands; control of erosion, sediment transport, and dust; stormwater management, etc.)
• Sustainability and climate change considerations
• Archaeological and historical sites
• Technical requirements and civil engineering standards
• Geotechnical, geological, and hydrogeological conditions
• Existing subsurface utilities and infrastructure
• Infrastructure requirements and availability
• Constructability, and contractor means and methods
• Safety (workers and public)
• Protection of existing facilities and adjacent structures

Construction Safety Disputes Associated With Land Development

Land development projects are vulnerable to the typical construction workplace hazards identified by organizations such as OSHA and NIOSH, including struck-by incidents, falls, electrical shock injuries, and injuries resulting from being caught-in or between equipment. Other notable hazards are associated with the extensive trenching and excavation that is typical of land development projects and heavy construction operations.

Planning for construction safety extends beyond the workers and must consider and reasonably mitigate foreseeable hazards to the public and adjacent properties. For example, it is not uncommon for forensic investigations to examine the maintenance of traffic measures in construction work zones (CWZs) to ensure they accommodate all user types: motor vehicles, bicycles, pedestrians, including accessibility accommodations for persons with disabilities.

Specific hazards and some of the commonly employed countermeasures that are relevant to land development disputes include:

• Adjacent structure overload or collapse - Shoring and/or underpinning
• Trenches and excavations - Shoring, shielding, sloping, or benching
• Existing underground utilities - Subsurface utility location
• Haul routes - Construct and maintain grades, slopes
• Slopes and embankments - Slope for stability, operate equipment within operation limitation and operating requirements
• SWM system - drowning - Stormwater management system (SWM) retention/detention facility side slopes and or littoral shelves
• Runaway vehicles or equipment - Loading processes, restraining measures, brake operation
• Bi-directional equipment - Back-up horn/alarms
• Articulating equipment - Guard scissor points
• Over turning - Rollover protection, operator training
• Falling objects - Protective equipment, proper rigging
• Noise and vibration - Regulations and industry standards (sources may include: vibratory compaction, dynamic compaction, blasting, pile driving, etc.)
• Hazardous Materials (HAZMAT) - Site assessment, hazard recognition training, engineering controls, administrative controls, PPE
• Hazardous atmospheres - Testing and confined space safety practices
• Fall from heights - Fall protection

This is by no means a comprehensive list or a complete project hazard analysis. Rather, the intent is to provide lawyers and insurance professionals who may be new to land development disputes with an overview of the types of hazards and some available countermeasures common for these projects.

Construction Equipment Related Hazards

Heavy construction equipment capable of fracturing, moving, and handling tons of earth and other materials, cannot operate in a vacuum. Workers, other equipment, the public, and adjacent property may be exposed to hazards created by the use of heavy equipment. The investigation of mishaps may require an evaluation of pre-work planning and the criteria used to make equipment selections.

It is often important to review operator training, and hazard recognition training for all workers involved in an injury dispute, as well as elements of project safety programs. Heavy construction equipment operations that may require particular care include: operation on or near embankments and slopes, haul roads, and work adjacent to water bodies. Operators must be trained and have a responsibility for the safe operation of equipment in accordance with equipment operation and safety manuals, operating limitations, safety placards and warnings.

Engineering design and construction standards provide guidance to the construction industry. However, given that there are no one-size-fits-all solutions or procedures, appropriate equipment, and site-specific means and methods must be evaluated in light of the specific conditions of each case.

Land Development & Construction Investigations

The civil engineers at Robson Forensic are often retained to help resolve disputes over the quality, cost, and timeliness of construction projects. As construction professionals, they are also frequently engaged to investigate construction injury cases. We have experienced civil engineers who can handle land/site development, road layout and drainage, commercial development, and water treatment and distribution issues.

For more information, contact the author of this article or submit an inquiry.

Featured Expert

C. William Brewer, P.E.

Civil Engineer & Land Development Expert

Bill has over 30 years experience in large-scale engineering, construction, and real estate development projects. For more than 25 years, he has focused on land development, engineering and land… read more.