Fujikawa v. Sunrise Water Works Co., 158 F.2d 490, 492-93 (9th Cir. 1946). A reasonable jury could infer that the members of the Village board made little or no effort to inform the public concerning the pros and cons of the project and that one influential member of the board, who later became the mayor of Summit, actually fanned public opposition, because he thought it would help him to defeat the incumbent mayor in the next election (as he did).
Were there no duty on a municipality to take reasonable steps to prevent the contracts it signs contingent on formal approval following public hearings from collapsing when a shift in the political winds offers councilmen an opportunity to reap personal advantage, it would be difficult for municipalities to make contracts with developers. These plaintiffs would not have been willing to spend hundreds of thousands of dollars to obtain a variety of grants and commitments had they known that they would have no protection if, the grants and commitments being obtained, the Village board balked at the first sign of public opposition -- opposition fanned by one of the board's own members.
Against all this it can be argued, first, that if the partners had not wanted to assume the risk of fickle public opinion, they could have negotiated for an undertaking by the board members to make their best efforts to obtain public support for the grants; and second, and more fundamentally, that an agent has no duty to control his principal, especially when the agent is an elected official. The people are sovereign; one who contracts with government subject to ratification by the people cannot force the officials with whom he contracts to influence the people's votes.
However all this may be, there is another and independently decisive distinction between Apothekernes and the present case. The source of the requirement of a public hearing in this case is not a statute or ordinance, a bylaw or resolution, or (corresponding to Apothekernes) the contract itself; the source is a term in the UDAG grant application, one of the applications envisaged by the parties' deal. At the hearing, however, no public opposition was expressed to the UDAG grant. Everyone wanted a new shopping center, built with federal assistance. Indeed, one source of public concern was that, although the HODAG grant had come through, the UDAG grant was still under consideration by HUD. What the people who thronged the public hearing did not want was low- and moderate-income housing, a condition only of the HODAG grant. Assume that if the public hearings had produced opposition to the UDAG grant, the Village could have refused to go through with that grant; and assume further that the Village could have done this without liability even if the board itself had aroused the opposition. But, there was no opposition to the UDAG grant, and hence there is no causal relationship between the requirement of public hearings and the decision by the Village to repudiate its agreement with the plaintiffs. And causation is as much a requirement of contract law of tort law. Fratelli Pantanella, S.A. v. International Commercial Corp., 89 N.Y.S.2d 736, 739-40 (S. Ct. 1949); Model Vending Inc. v. Stanisci, 74 N.J. Super. 12, 180 A.2d 393 (1962); Gulf Oil Corp. v. FERC, 706 F.2d 444, 453 (3d Cir. 1983); Manganaro Bros., Inc. v. Gevyn Construction Corp., 610 F.2d 23, 24-25 (1st Cir. 1979); Wheeling Valley Coal Corp. v. Mead, 186 F.2d 219, 222-23 (4th Cir. 1950).
Put most simply, to rely on an excusing condition (public opposition to the UDAG grant), the condition must occur. Put slightly differently, even if the plaintiffs assumed the risk that the UDAG grant might be disapproved for any reason or no reason following the public hearing, they did not assume the risk that the HODAG grant might be disapproved because of opposition expressed at a public hearing. There was no similar requirement for that grant. On the contrary, in the HODAG grant application the Village was required to and did certify that it had already "developed its rental development program after consultation with the public."
If a contract provides that performance will be excused if the promisor's plant burns down, it does not follow that performance will also be excused if the promisor's plant is closed down by a strike.
The motion for judgment notwithstanding the verdict is denied, and judgment will be entered in accordance with the jury's verdict.
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