responding to streams of land use disputes

8/14/2019 Responding to Streams of Land Use Disputes

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Policy Report #5Public Policy Research Institue

The University of Montanaand

Consensus Building Institute

Practical Strategies for Planners,Decision Makers, and Stakeholders

Responding to Streamsof Land Use Disputes:

A Systems Approach


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Responding to Streams o land Use Disputesby Matthew McKinney, Sarah Bates Van de Wetering, and Patrick Field

(c) 2007 P ublic Policy ReseaRch institutet he univeRsity of Montana


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Pre ace ________________________________________________ 1

Introduction ___________________________________________ 2

Research Methodology ____________________________________ 4

Streams o Land Use Disputes ______________________________ 5

Dispute Systems Design: A Prescriptive Framework _____________ 8

From Theory to Practice __________________________________ 13

Analysis o Current Practice _______________________________ 17

Best Practices __________________________________________ 26Conclusion _____________________________________________ 30

Literature and Resources __________________________________ 31

AppendicesA: Participants in National Policy Dialogue _______________________ 33B: Pro les o Land Use Dispute Resolution Programs _______________ 34C: The Role o Collaboration in Land Use Decisions ________________ 53

T a b l e o f C o n T e n T s


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October 23, 2007

Dear Friends and Colleagues:

We welcome the publication of Responding to Streams of Land Use Disputes: A Systems Approach as a significant contribution to the theory and practice of land use policy and decisionmaking.

The Lincoln Institute of Land Policy has long conducted and supported research andpractical applications on land use policy, decision making, and dispute resolution. ThisLincoln Institute supported report advances the issues and themes that underpin a series of publications and programs on land use dispute mediation and negotiation produced by theConsensus Building Institute.

The full promise of interest-based, collaborative strategies is more likely to be fulfilled using the concepts and strategies for dispute resolution systems design featured in this report. Assuch, it will prove to be a highly useful, helpful guide for planners, planning board members,other civic officials, developers, and citizens and other stakeholders.

We hope you enjoy this well-researched, informative, and practical report.

Yours sincerely,

Armando CarbonellSenior Fellow and ChairDepartment of Planning and Urban FormLincoln Institute of Land Policy


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P r e f a C e

The Public Policy Research Institute is an applied

research and education center based at The Universityo Montana. Its mission is to oster sustainablecommunities and landscapes through collaboration,consensus building, and confict resolution. To helpachieve this mission, the Institute conducts action-oriented research and produces policy reports to in ormand invigorate public policy, and to examine currentissues in the use o collaborative methods to preventand resolve public disputes.

To ensure that the policy reports are relevant, theInstitute partners with appropriate organizationsinvolved in public policy and public dispute resolution.Each policy report integrates scholarly research with theviews and opinions o people interested in or a ectedby the topic. The Institute uses various means (suchas interviews, surveys, and policy dialogues) to engagestakeholders in naming problems and raming options,and then supplements this understanding with thebest available in ormation and ideas in the appropriate

literature. In some cases, a policy report may serve asa catalyst or a multi-party dialogue or negotiation.In other cases, it may simply capture the status o aparticular topic and provide a use ul analysis o thepast, present, and options or the uture. The Institutecare ully selects topics to address a ter consulting withcitizens, leaders, and scholars, and determining its owninterest and capability or addressing the topic.

Responding to Streams o Land Use Disputes: A Systems Approach is a work in progress. It is intended to provideideas, support, and resources to local, state, and regional land use pro essionals and elected o cials seeking toprevent and resolve land use disputes. The policy reportprovides advice about designing, administering, andevaluating such programs, as well as in ormation aboutcurrent programs currently throughout the country. Wehave made our best e orts to collect in ormation onrepresentative programs, but we anticipate that there are

a number o initiatives that have not yet come to ourattention. We welcome input and updates rom readers,and will revise this report as we receive new in ormation.

A special thanks to Kate Harvey (Consensus BuildingInstitute), Sean Nolan (Pace University), and RicRichardson (University o New Mexico) or theirinvaluable help in preparing this policy report.

Please send in ormation, suggestions, or comments to:

Matthew McKinney, Ph.D.

Director, Public Policy Research InstituteThe University o Montana516 N. Park Ave.Helena, MT [email protected]

1 Prior to this publication, the Institute produced a series o Collaborative Governance Reports and Montana Policy Reports. Withthis publication, the Institute is olding the two series together intoa single series o Policy Reports.


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I n T r o d u C T I o n

Land use planners and decision makers are increasingly

using a wide range o collaborative methods to preventand resolve di erences between landowners, publico cials, and other interested parties (see a menuo Collaborative Methods on page 3). 2 Two studiescompleted by the Lincoln Institute o Land Policy andthe Consensus Building Institute in 1999 demonstratethat negotiation and mediation have e ectively resolvedland use disputes on an ad hoc, case-by-case basis. 3

Building on these research ndings, one o the mostcompelling challenges in preventing and resolvingland use disputes is to move beyond the ad hoc use o negotiation and mediation, and anticipate and managedisputes by incorporating a wide range o collaborativemethods into the land use decision-making process.

This policy report examines the degree to which

collaborative methods are being integrated into thestandard operating procedures o land use planning anddecision making. It presents a conceptual rameworkto guide and evaluate the design o such programs,and it analyzes the key elements o 27 state and local programs, looking at such questions as who participates,what sorts o issues are addressed, when collaborativemethods are used in the process, and how these methodsare employed. Although data on the per ormance o existing programs are limited, we were able to gain

some insight rom a national policy dialogue convenedin 2006. This report summarizes the participantsexperience, along with commentary about the bene tso incorporating collaborative methods into land useplanning and decision making. The report concludeswith a set o ten best practices or designing andimplementing land use dispute resolution programs.

The report also includes a section on literature andother resources re erenced throughout the report, whereinterested readers may nd more in ormation on thetheory and practice o dispute system design and relatedtopics.

Supplementary material in the reports appendicesprovides the names o participants in the national policydialogue (Appendix A), summaries o the state andlocal programs identi ed in this research (Appendix B),and a table detailing the collaborative opportunitiesthroughout the land use process (Appendix C).

2

2 See Henton, et. al., Collaborative Governance, in the Resourcessection at the end o this report.

3 See Susskind, et al., Mediating Land Use Disputes in the UnitedStates and Using Assisted Negotiation to Settle Land Use Disputes, inthe Resources section.

One o the most compelling challenges inpreventing and resolving land use disputes isto move beyond the ad hoc use o negotiationand mediation, and anticipate and managedisputes by incorporating a wide range o collaborative methods into the land usedecision-making process.


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A M enu of C ollAborAtive M ethods

Forums for Public DeliberationOne o the rst steps in collaboration is to identi y citizen pre erences through orums or publicdeliberation. These types o public orums start by providing the best available in ormation to citizens,and then acilitate the exchange o di erent viewpoints. The goal is to oster in ormed input and advice.Forums or public deliberation can also build working relationships and promote cooperation. Various toolsand techniques have been used in small discussion groups as well as in large-scale meetings. Speci c toolsand links to more in ormation include:

21st Century Town Meetings (www.americaspeaks.org)Study Circles (www.studycircles.org)Online Dialogue (www.ethepeople.org)Deliberative Polling (www.la.utexas.edu/research/delpol)Citizens Jury (www.je erson-center.org)

Collaborative Problem Solving

Beyond gaining citizen input through deliberation and dialogue, another (more intense) orm o collaborationinvolves organizations working together with government to nd solutions to community problems, o ten onan ongoing basis. Collaborative problem solving usually involves actively engaging stakeholders directly inaddressing speci c issues. Speci c tools include:

Partnerships RoundtablesPolicy Dialogues Joint Fact FindingNegotiated Rulemaking

Multi-party Dispute Resolution

Proactive approaches to involve people through deliberation and collaborative problem solving do not alwaysprevent land use disputes. Multi-party dispute resolution processes can be used when various stakeholdersare headed toward, or locked into, a contentious dispute. Dispute resolution approaches bring togetherthe interested parties, including government representatives, in discussions that begin with an attemptto enhance the participants mutual understanding o the problem and their di erent perspectives. Thisapproach to collaboration seeks a mutually satis actory agreement on a common problem through a processnegotiation among participants. Speci c tools include:

Negotiation MediationFacilitation Arbitration

Dispute Systems Design


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4

In 2001, the Consensus Building Institute (CBI)initiated research into statewide statutes thatencourage and support dispute resolution in the landuse context. Students in the University o MontanasNatural Resources Confict Resolution Program deepenedthis research in 2003 by completing a literature reviewand a preliminary survey o land use dispute resolutionprograms across the country. In 2005, the Public PolicyResearch Institute (PPRI) and CBI identi ed additional programs (and several that no longer existed) and newliterature on the subject o land use dispute resolutionsystems.

By land use dispute resolution system, we arere erring to any ongoing e ortin contrast to isolated,ad hoc responsesto prevent and resolve the streamo disputes that characterize many land use decisions.These systems or programs are based on the observationthat land use disputes are chronic and inevitable, andthus there is a need to integrate collaborative methodsinto the standard operating procedures o land usedecision making.

In the summer o 2005, the research team distributed

a dra t o this report to all the people contacted in thetwo phases o research, as well as to others identi edas potential sources o in ormation on land use disputeresolution systems. We presented the initial ndings andconclusions at the 15th annual con erence o the RockyMountain Land Use Institute in March, 2006. The inputreceived at each step has helped improve the accuracyand completeness o the in ormation in this report, andprovided help ul insights on designing and administeringland use dispute resolute programs.

In September o 2006, the Lincoln Institute o LandPolicy hosted a national policy dialogue among programmanagers, scholars, and other people interested increating land use dispute resolution systems. A list o the participants appears as Appendix A to this report.The policy dialogues goals were to:

r esearCh MeThodology

Examine and re ne the prescriptive framework fordesigning land use dispute resolution systems;

Review the general ndings of this research;

Clarify the pros and cons of alternative programmaticunctions and structures (e.g., who participates, what

issues are addressed, when collaborative methods areused, how collaborative methods are used, and theauthority o programs);

Evaluate the performance of as many programs aspossible;

Identify the key ingredients to designing and

administering land use dispute resolution systems,particularly as these inputs infuence theper ormance o such systems; and

Identify future areas for research, education, andpolicy development.

We appreciate the input rom the participants in thenational policy dialogue, and have integrated many o their comments into this nal report.

By land use dispute resolution system,we are re erring to any ongoing e ortincontrast to isolated, ad hoc responsestoprevent and resolve the stream o disputesthat characterize many land use decisions.These systems or programs are based on theobservation that land use disputes are chronic

and inevitable, and thus there is a need tointegrate collaborative methods into thestandard operating procedures o land usedecision making.


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State and local governments ace many challengesmanaging diverse public interests in land useplanning and decision making. Although each parcel o land is unique, predictable issues arise whenthat land is the subject o a proposed development,change o use, or protective designation. Publico cials bear an increasingly heavy burden o balancing competing claims o private propertyrights, economic imperatives, environmental needs,and social equities. Each decision involves multipleparties and technical and scienti c uncertainties.Frequently the stakes are high and public sentimentis polarized.

For example, more than a decade ago the city o Missoula, Montana, adopted a growth managementplan that included incentives or denser developmentwithin city limits to ensure a supply o a ordablehousing and to alleviate sprawl on the urban ringe.Although ew members o the public objected to theplan when it was adopted, many residents ralliedto object to the reality o clustered homes and newdevelopment in established neighborhoods. Memberso a neighborhood preservation group demanded newprotective ordinances and called or more responsivepolitical leadership. At one point, the dispute faredat a city council meeting in which a council memberwas physically accosted outside the meeting bya citizen who objected to being re erred to as amember o that posse o neighborhood activists.

Even today, several years later, planning meetingsin Missoula are marked more typically by easilyidenti ed polarized actions than by rational discussion o a community vision or prosperousneighborhoods. The city recently announcedthe start o a multi-year overhaul o its zoningordinance, kicked o with elected o cials pleadingwith opponents o current practices to attendmeetings and provide input. You want to keep yourneighborhood intact? challenged one city council member, You better start coming to these rewrites. 4 In Missoula, as elsewhere, land use disputes appear

to be inevitable, predictable, and ongoing.

Such disputes o ten take a turn toward personal invective. Not ar rom Missoula, a planning o cial in ast-growing Ravalli County, Montana, recently

led a grievance against a county commissioneror threatening that shed better watch her back

in a one-on-one meeting regarding developmentand foodplain issues. 5 The county planner also

led a de amation lawsuit against the countycommissioner and a local board o Realtors whoran an advertisement that questioned her characterand accused her o using her regulatory authorityas a stick to beat the people with. 6 Refectingthis ongoing discord, planning and land use issuesdominated the election o new Ravalli CountyCommission members in a June, 2006 election.

Other disputes arise predictably in communitiesundergoing change due to market orces that extend

ar beyond their boundaries. The expansion o bigbox stores (large retail outlets in blocky stand-alone buildings o 50,000-200,000 square eet) into

s TreaMs of l and u se d IsPuTes

4 Mayor Asks or Input on Zoning, Missoulian (May 15, 2007).5 Michael Moore, Ravalli O cial Sues or Alleged Threat, Missoulian(May 25, 2007).6 Matthew Frank, Ravalli County Administrator Alleges De amation,Sues Commissioner, Board o Realtors, Headwaters News (May 24,2007), http://www.newwest.net/index.php/topic/article/ravalli_county_administrator_alleges_de amation_sues_commissioner_board_o /C35/L35/#comments


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6

small towns and suburban communities o ten promptsopposition by local retailers, labor activists, and othersconcerned about changing community character. Somecommunities have enacted statutes limiting the total square ootage allowed or retail establishments; othershave aced citizen initiatives asking or such restrictions.In a limited number o judicial decisions interpreting thelegality o such limitations, courts have upheld a cityspolice power to enact store-size restrictions in order toprotect its commercial district, 7 but have cautioned thatthe city must articulate a reasonable justi cation orsuch a limitation. 8

Court cases involving takings and property rights havechallenged numerous local and regional approaches toland use planning and regulation. Some states have

enacted statutes limiting local planning authorityby requiring compensation when property values arediminished by statutory restrictions on development. 9

Land use disputes o ten result in expensive court battles,personal resentments, and civic discord. Although stateand local laws require public participation at several stages throughout the decision process, citizens do noto ten eel welcome or com ortable in ormal hearings, orthey are not aware o the potential impact o a proposal until it is nearly or already approved. As described in a

recent article in the Austin (Texas) Chronicle:The meeting was an exercise in cross talk, one thatsbeen repeated time and again in Austin. Residentsdont want ( ll in the blank: an apartment complex,high-density retail, a big at superduplex).Thegoverning board, wrestling with the code on how toeither consider or dump a particular proposal, lands ona process, and the residents leave the meeting angryand rustrated. 10

By ailing to understand the ull range o interests atthe outset (and it may be a question when the outsetoccurs), planners miss opportunities to engage in jointproblem solving, and small di erences in opinion cangrow into major, seemingly intractable disputes.

Land use planning has evolved over the past century inan attempt to balance competing needs and to resolvethese predictable and chronic disputes. The early model o technocratic planning emphasized e cient processes,giving a great deal o autonomy to pro essional plannerswho developed and implemented large-scale land useplans or urban areas. Later, as planners realized theinadequacies o this approach, they sought to provide amore open orum to hear rom diverse interest groups inwhat has been characterized as the advocacy planningmodel.

As described in the policy report published by theLincoln Institute o Land Policy in 2000, the mostrecent evolution o land use planning is represented bythe collaborative model, which the authors describe asa highly structured problem-solving process in whichall stakeholders learn about each others interests,challenge previously accepted assumptions, and developstrategies aimed at maximizing mutual gains. 11

O course, in reality, local land use planners incorporate

some parts o each model in their daily decisions.Nowhere have planners or decision makers given uptheir pro essional autonomy or authority, and anyoneattending a local public hearing on a land use issue canattest to the ongoing viability o opposition to one kindo land use change or anotherranging rom purchasingopen space with tax dollars to reacting to a proposal ora major, mixed used development.

Land use disputes are embedded in a speci c contextand typically are characterized by a number o actors

that make them at least somewhat di erent than otherkinds o public disputes. We have developed a partial list o both the context and characteristics o land usedisputes. The sidebar on page 7 presents a partial list o the characteristics o land use disputes.

7 Wal-Mart Stores v. City o Turlock, 138 Cal. App. 4th 273 (2006).8 Hernandez v. City o Han ord, 137 Cal. App. 4th 1397 (2006), rev.

granted.9 See, e.g., Oregons Measure 37, enacted in November, 2004, and

codi ed at O.R.S. 197.35210 Kimberly Reeves, More Big Box Brawling, The Austin Chronicle(Jan. 26, 2007), http://www.austinchronicle.com/gyrobase/Issue/ story?oid=oid%3A439251

11 See Susskind, et al., Mediating Land Use Disputes in the UnitedStates, in the Resources section.


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C hArACteristiCs of l And u se d isputes

Disputes involve physical place and space

Land use decisions (and disputes) involve matters that ultimately are concrete, tangible, felt andseen. Tra c impacts, or instance, may be experienced every day.

Issues are deeply personal Many land use disputes involve deeply personal issues and feelings involving family, home,

community, and identity.

Local control operates in the shadow of the court Local plans, local zoning, local decisions, local politics

Local boards may or may not be fully informed and experienced; many are volunteer and underresourced.

Process heavy (i.e., Did the Town properly give notice to the abutters about the pending action?)

Questions highlight the functioning of government

Was the process fair? Is the decision-making process ef cient?

Decisions balance public versus private interests

Debate about de ning property rights

Full, complete, and unencumbered or

A bundle o rights, but i so, which ones does the citizen get to exercise?

Tensions arise between the practical and the legal What are my rights?

How do I just get this (whatever that may be) permitted and built?

Interests and values often clash I dont want that house to be more than two stories, since it sits on the ridge and could block my

view.

That house on the ridge offends my sense of the character of this place.

Decisions incorporate technical information, expertise, and uncertainty What will traf c look like once that project is built?

Can I trust that technical presenter?

How can I judge the validity of information from experts when I am not one?

Participants face questions of standing and representation

Who has standing? Abutters, taxpayers, voters, issue advocacy groups, others?

Disparities in power are common Money (to lose or gain)

Legitimacy (local NIMBY homeowner versus greedy developer)

Information (technical expertise of proponent & indigenous knowledge of local intervenors)

Repeat play (experts who have years of experience before decision-making bodies) versus occasional or single play (an abutter who may in only get involved in one land use dispute and not know therules, players, or process)


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8

In recent years, the eld o public dispute resolution hasmoved beyond the application o collaborative methodsin isolated, ad hoc cases. People engaged in what isre erred to as dispute systems design seek to designcomprehensive systems or dealing not with just a singledispute, but the stream o disputes that o ten arise innearly all relationships, communities, and institutionsso-called chronic disputes.

In Getting Disputes Resolved , William Ury, Jeanne Brett,and Stephen Goldberg identi y three basic ways toresolve disputes: (1) reconcile the disputants underlyinginterests; (2) determine who is right; and (3) determinewho is more power ul. 12 The best approach to resolvea particular dispute can be determined by consideringthese criteria:

How satis ed are the stakeholders likely to be with theoutcomes o a particular process?

What is the chance that the issue will be resolvedand not recurthrough one process or another? Thatis, how sustainable is the outcome likely to be?

What are the likely coststime, money, and emotional energyo relying on one process rather thananother?

How will the use of one process over another impactthe relationships among stakeholders?

These our criteria are interconnected. Dissatis actionwith outcomes may lead to the recurrence o disputes,which strains relationships and increases transactioncosts. Based on these criteria, the core proposition o the theory o dispute systems design is that integratinginterests (through various collaborative methods) is less

costly than determining who is right, which in turn isless costly than determining who is more power ul.

This does not mean that ocusing on interests is alwaysbetter than resorting to rights or power, but simply thatit tends to result in greater satis action with outcomes,less recurrence o disputes, lower transaction costs, andless strain on relationships.

In light o this analytical ramework, Getting DisputesResolved goes on to present six principles o disputesystems design:

Put the focus on interests;

Build in loop-back procedures that encouragedisputants to return to negotiation;

Provide low-cost rights and power back-up procedures;

Build in consultation before and feedback after;

Arrange procedures in a low-to-high cost sequence;and

Provide the motivation, skills, and resources necessaryto make the procedures work.

Using this prescriptive ramework, the range o collaborative methods described earlier provides theoundation or a more comprehensive system to

prevent and resolve land use disputes. By combiningopportunities or public deliberation, collaborativeproblem solving, and multi-party dispute resolution intothe land use decision-making process, planners, decisionmakers, and others can create a more responsive systemo governance, which in turn will likely improve land usedecisions and land use.

d IsPuTe s ysTeMs d esIgn : a P resCrIPTIve f raMework

12 See Ury, et al., Getting Disputes Resolved, in the Resources section.

Principles o Dispute Systems Design Put the focus on interests; Build in loop-back procedures that encourage disputants to return to negotiation; Provide low-cost rights and power back-up procedures; Build in consultation before and feedback after; Arrange procedures in a low-to-high cost sequence; and Provide the motivation, skills, and resources necessary to make the procedures work.


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The ideal system would start by trying to preventunnecessary disputes by engaging people early and o tenthroughout the decision-making process. Realizing thatit may not be possible to prevent all land use disputes,the system would provide low-cost procedures to resolvedisputes (e.g., negotiation, acilitation, and mediation)be ore moving to litigation and other rights- and power-based procedures.

The conceptual models presented in Figure 1 (p. 11) andFigure 2 (p. 12) o er two illustrations o what this ideal system might look like, and suggest several observationsthat are important to designing and implementing landuse dispute resolution systems.

Figure 1 suggests that collaborative methods canbe integrated into any and all steps o the land useplanning and decision-making process. Upstream, at thestart o the process, di erent collaborative methods canbe used during pre-application con erences and priorto or simultaneously with ormal public hearings withthe planning board and decision-making body. Projectproponents can potentially reduce the costs associatedwith detailed design, site planning, and legal work(including appeals) by in orming, educating, and seekingthe input and advice o neighbors and other stakeholdersprior to submitting a ormal application. This step allowsthe proponent not only to share his or her vision andplan, but also to modi y that vision and plan based onthe needs and interests o various stakeholders

Downstream, as the process moves orward, collaborativemethods may be used prior to appeal and/or litigation.When project proposals dont see the light o day until the ormal application process is underway, it is notuncommon or neighbors and stakeholders to activelyoppose proposed developments. I opposition threatens

nal approval o a project, the interests o all parties

including the decision-making body, project proponent,and other stakeholdersare perhaps best served bycreating an opportunity to share interests, exploreoptions, and seek agreement.

Figure 2 suggests that land use disputes arise in vestages, as indicated by the vertical lines on the gure:(1) community planning stage; (2) pre-application; (3)post-submission; (4) post-decision; and (5) legal andadministrative appeals. As time passes (indicated bythe horizontal axis below), the incentive or people toparticipate in some orm o collaboration changes. Theincentives to negotiate tend to be low at the start o a planning or decision-making process, and steadilyincrease as the issue or dispute moves through the landuse decision-making process. By contrast, the likelihood

o reaching an agreement is high at the beginning o the decision-making process, and then tends to decreaseover time.

The incentive to negotiate is not necessarily well alignedwith the likelihood o reaching agreement until justprior to a ormal decision, suggesting thatwhile it maybe valuable to build-in opportunities or collaborationand problem solving throughout the land use decision-making processit is perhaps most compelling toprovide such opportunities at or near the nal decisionstep.

Figure 2 also suggests that the role o a process manageris less ormal and intense early on in the process, andmore ormal and more intense as the parties becomemore polarized and the dispute becomes moreintractable. The process managermay be an impartial third party such as a acilitator or mediator, or it mightalso be a pro essional planner, planning board member,or other o cial or nongovernmental person with thenecessary credibility, legitimacy, and capacity to playthis role

The incentive to negotiate is not necessarily well

aligned with the likelihood o reaching agreementuntil just prior to a ormal decision, suggesting thatwhile it may be valuable to build-in opportunities

or collaboration and problem solving throughoutthe land use decision-making processit is perhapsmost compelling to provide such opportunities ator near the nal decision step.


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f igure 1:

o pportunities to integrAte C ollAborAtive M ethods into the l And u se d eCision - MAking p roCess 16

16 Oregon Dispute Resolution Commission, Collaborative Approaches to Decision Making and Dispute Resolution

Development Proposal

Staff Review

Staff Recommendation

City Council Meeting andPublic Hearing

(if Council Approves)

City Council Decision

Appeal to Land Use Boardof Appeals (LUBA)

LUBA Decision

Appellate Court

Planning CommissionRecommendation

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Application Submittaland Certifcation

Pre-ApplicationConference

Prior toPublic Hearing



Prior toLUBA Decision

Prior toCourt Decision

Remand to City

Planning Commission Meetingand Public Hearing

(if Commmission Approves)

When to Use Steps in DM Process


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To better understand how the theory o dispute systemsdesign can be put into practice, this section describesthree land use dispute resolution programs in the UnitedStates and one in Canada. Appendix B provides shortpro les o all the U.S. programs examined in this study.

PREVENTING DISPUTES IN ALBUQUERQUE

In 1994, the City o Albuquerque created the Land UseFacilitation Program as part o the citys AlternativeDispute Resolution O ce. The program provides landuse applicants and a ected residents the opportunityto identi y, discuss, and resolve issues prior to theacceptance and implementation o land use decisions.The goals o the program are to:

Promote the sharing of information through publicdialogue;

Identify issues early; and

Promote collaborative problem solving among thosedirectly involved in and impacted by local land usedecisions.

The ADR O ce contracts with local acilitators andprovides ree, voluntary services to city residents.Projects are re erred to the program through several avenues, including the O ce o NeighborhoodCoordination, the Planning Department, an applicant, oran interested citizen.

Once a request has been made, a acilitator is assignedto the project. The acilitator calls stakeholders todetermine interest in a meeting. I there is no interest,the acilitator generates a No Facilitated MeetingHeld Report. I there is interest, the acilitator makesarrangements or the meeting, convenes the meeting,and generates a report identi ying the interests andagreements as determined at the meeting. The report isdistributed to the appropriate Planning Division, ADRO ce, and O ce o Neighborhood Coordination.

Over the years, the program has addressed in ll projects(such as new apartment buildings and increased tra c);in rastructure systems (such as transportation, sewer,water, and drainage); and projects o ering services thatdi er rom traditional services and uses (such as big box

stores and new municipal buildings).

From 1994-2006 approximately 600 cases were re erred

to the program; however, this gure may be low, asstatistics were not routinely kept prior to January o 2005. From January o 2005 to January o 2006, 114cases were re erred to the program. During that periodprogram o cials estimate an average settlement o 61.5percent o the cases. Due to the broad and complexnature o cases re erred, o ten cases are not entirelysettled, but generally progress is made on speci csissues within the case.

MEDIATING APPEALS IN CONNECTICUT In contrast to the City o Albuquerques land usedispute resolution programwhich tries to preventdisputes by acilitating communication, understanding,and agreement prior to a ormal application beingsubmittedthe Connecticut legislature enacted astatute in 2001 to encourage mediation during theappeals process.

Once an appeal is led in Superior Court concerning anydecision by a municipal zoning commission, planningcommission, combined planning and zoning commission,zoning board o appeals, or other board or commission,one o the parties to the dispute may le a statementwith the court expressing interest in mediation. A court-appointed mediator then determines i the other eligibleparties are willing to engage in mediation. All o theparties must agree to mediation be ore it can go orward,and mediation must begin on the same day they noti ythe court they intend to try this option.

Other aggrieved parties not directly re erenced in theappeal must obtain the courts permission in order to

join the mediation. All time limits with respect to thelegal action are tolled while the mediation is underway,subject to the mediation being renewed by writtenagreement o both parties a ter 180 days (subsequentextensions must be approved by the court).

Any party can end the mediation by withdrawing. Atthe end o the mediation, the mediator must le areport with the court, stating whether or not the dispute

f roM T heory To P raCTICe


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was resolved. The parties share equally the cost o themediation.

Apparently, ewer than 10 percent o the judicial casesinvolving land use are going to mediation under thisprogram. According to Bill Voelker, one o the architectso this program, there are several obstacles to morewidespread use:

Commissioners are pressured to make quick decisionson land use matters;

Planners do not understand how the program works,and thus cannot e ectively advocate the mediationoption;

Project proponents (as well as citizens, to somedegree) may hesitate to agree to mediation as it is achange rom the traditional ways o doing business;

Attorneys have not yet embraced the mediationoption; and

Courts are becoming more supportive, but are not yetpushing parties to use the mediation option.

As discussed in more detail in the next section, these arecommon problems in designing and administering landuse dispute resolution programs.

IDAHOS COMPREHENSIVE APPROACH

In addition to programs that are exclusively ocused onupstream (proactive) or downstream (reactive) attemptsto prevent and resolve land use disputes, some programstake a more comprehensive approach. The state o Idaho,

or example, passed legislation in 2000 enabling andencouraging mediation throughout the land use decisionprocess.

Previously, development pressures in resort communitiessuch as Sun Valley caused property values to rise quickly,which led developers and others to le lawsuits toappeal subdivision decisions with which they disagreed.By authorizing mediation as an alternative means toresolve these disputes, the state legislature attemptedto curtail the growing roles that the courts were playingin the land use decision-making process.

Unlike the programs in Albuquerque and Connecticut, theIdaho statute allows use o mediation (or acilitation)at any point during or a ter the decision process. Thesealternatives may be requested by an applicant, ana ected person, the zoning or planning commission, orthe governing board. The governing board responsible orthe planning decision must make these services availablei requested.

I mediation is requested by the governing body orcommission, then participation in one session ismandatory; otherwise participation is optional. Assumingthat the governing board (typically a county) agrees tomediation, the governing board selects the mediatorand pays or the rst mediation session. A ter the rstsession, the applicant bears all costs or mediation. The

state enabling legislation permits counties to enact theirown land use mediation ordinance, which may allocatecosts di erently in the uture.

I mediation occurs a ter a nal decision, any resolutiono di erences must be the subject o another publichearing be ore the decision-making body. Duringmediation, any time limits relevant to the land useapplication are tolled. The mediation process is not parto the o cial record regarding the application.

To date, at least two cases have been addressed, one o which was resolved. According to one contact, Idahosprogram is problematic or several reasons:

An inherent tension exists between the publics rightto participate and right to know and the need toensure con dentiality in the mediation process. Theoption is either to take detailed notes o closed-doormeetings, or keep meetings open and sacri ce privacyand possibly the ultimate success o the mediation.

The enabling legislation is not detailed enough to

be use ul. The solution to this problem is either toamend the statute or enact more detailed ordinancesaddressing process (and when mediation should beused) at the county level. Thus ar, the statute hasnot been e ective at encouraging parties to usemediation to settle subdivision and zoning disputes.

Mediation is used too late in the process, and shouldalso be used at the policy level to prevent conficts inthe rst place.


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One positive and unintended consequence o theprogram is that when used, mediation has proven to bevery e ective at bringing all the stakeholders togetherand getting results. And even when mediation ailsin terms o obtaining a ormal settlement, positivebene ts still accrue merely rom opening the lines o communication. Idahos program uses mediators thatactually serve as acilitators. Although no speci cquali cations or mediators exist, mediators typicallypossess neutrality, land use expertise, and amiliaritywith the issue in question.

A PROVEN PROGRAM IN ALBERTA18

In 1998, Alberta Municipal A airs requested theassistance o the Alberta Association o Municipal Districts and Counties and the Alberta UrbanMunicipalities Association to develop guidelines or aninitiative that would promote the use o alternativedispute resolution methods, and mediation in particular,at the local government level. Their input and thesupport o the Alberta Arbitration and Mediation Societyled to the creation o the Mediation Services Program.

In 1999 the Municipal Government Act (MGA)legislation that de nes the authority thatmunicipal councils have to respond to issues in

their jurisdictionswas amended to require thatmunicipalities attempt mediation be ore making anappeal to the adjudicatory Municipal Government Board(MGB) on issues related to land use planning andannexation.

Subsequently the program has been expanded to includea Local Dispute Resolution component, which ocuses onincreasing a municipalitys internal capacity to manageconfict, and a act- nding service to supplementmediated negotiations.

The program ocuses on three areas o work: (1)inter-municipal disputes; (2) building capacity o municipalities to handle local disputes; and (3)alternative dispute resolution training and education.A report on the programs rst ve years o operationprovided the ollowing summary o achievements: 19

Inter-municipal mediations: Mediation topicsincluded annexation, regional cooperation, sharedservices, and land use planning.

Ongoing education initiatives: Partnership withAlberta Agriculture, Food and Rural Development toconduct over 25 workshops (Finding Agreement onDi cult Issues) at locations throughout Alberta.

Mentoring partnerships: Working withrepresentatives o the Alberta Association o Municipal Districts and Counties, the Local GovernmentAdministration Association, and the Alberta Rural Municipal Administrators Association to introduce thePeer Mentoring project.

Local dispute resolution: Developing the Local Dispute Resolution Initiative in partnership withthe Alberta Association o Municipal Districts andCounties, and the Alberta Urban MunicipalitiesAssociation.

Presentations: Numerous program presentations togroups rom Canada and beyond to share in ormationabout alternative dispute resolution in the local government context.

The inter-municipal dispute resolution process beginswhen program local o cials noti y program sta members about a confict. Program sta members meetwith the conficting stakeholders, rst individually andthen together, to assess the confictidenti ying theissues and determining i mediation is appropriate andwhether the municipalities are amenable to pursuing

mediation.

18 In ormation on Alberta Lets Resolve program is available at http:// www.municipala airs.gov.ab.ca/mahome/ms/mediation/index.html

19 See The Municipal Dispute Resolution Initiative in the Resourcessection.


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I the municipalities agree to pursue mediation, they arere erred to a roster o quali ed mediators (endorsed bythe Municipal Associations), although they are ree tocontract with any mediator. The program generally paysabout one-third o the cost o the mediators costs, andthe municipalities are responsible or the other two-thirds.

Most inter-municipal disputes involve annexationproposals, but cases may also involve land use, nancial sharing, shared and regional services, and water services.

In addition, municipal government o cials approachprogram sta to express an interest in improving theirmunicipalities ability to resolve conficts. Program sta members work with municipal sta , o ten orming asteering committee, to scope out the project and tohire a consultant who undertakes an assessment andworks with the stakeholders to design new confict

management systems. The provincial governmentallocates unding to municipalities to cover the coasts o the assessment and system design work. Support is alsoprovided, on a 50/50 basis to, implement and evaluatethe new systems.

Between 1999 and 2006, the program assisted over40 inter-municipal mediations involving over 100municipalities. The issues dealt with during themediation process have been wide and varied. Whilethe initial impetus or the program was to givemunicipalities an opportunity to resolve disputes thatwould normally go to the Municipal Government Board,municipalities are now using the program to resolve amuch wider range o disputes. Since the inception o theLocal Dispute Initiative, Alberta Municipal A airs and

Housing has worked with 11 municipalities to design andimplement new confict management systems.


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Research conducted between 2003 and 2006 identi ed27 land use dispute resolution programs intentional e orts to move beyond the use o collaborative methodson an ad hoc, case-by-case approach and to integratesuch methods into the standard operating procedureso land use decision making. O these 27 programs, 20are state-level programs (usually authorized by statestatute) and 7 are local or community-based programs.

As described in more detail in Appendix B, several programs are no longer operational; in ormation aboutthem is included to provide the ullest possible range o learning opportunities. Because most land use decisionmaking occurs at the municipal or county levelthusinvolving thousands o jurisdictions across the countrythe programs included in this report are probably morerepresentative than exhaustive.

The 27 land use dispute resolution programs are broadlydistributed across di erent regions o the country.There is a larger concentration o programs in the West(11 programs) and the Northeast (9 programs). Thisparticular distribution likely refects the location o theprimary researchers, and thus our amiliarity with nearbyprograms. Six programs are in the Southeast, while weidenti ed only one program in the Midwest.

Building on the advice o Ury, Brett, and Goldberg, theollowing analysis o existing land use dispute resolution

programs begins by ocusing on our diagnosticquestions:

Whoparticipates?

What types o issues are addressed?

When are collaborative methods used?

How are collaborative methods employed?

The answers to these questionsespecially whencompared to the two conceptual models presentedearlier in this reportshould begin to improve ourunderstanding o how to design and administer e ectiveland use dispute resolution programs.

In addition to these core questions, the ollowinganalysis also looks at:

The role of statutory authorization; and The outcomes or performance of land use dispute

resolution programs.

State ProgramsCali ornia

ColoradoConnecticutDelawareFlorida (2)Georgia (2)HawaiiIdahoMaineMassachusetts (2)MinnesotaNorth CarolinaOregonSouth CarolinaUtahVermontWashington

LOCAL PROGRAMSAlbuquerque, NM

Austin, TXBaltimore, MDBozeman, MT Colorado Springs/Denver, COPace University LULA, NYWarwick, NY

a nalysIs of CurrenT P raCTICe

Distribution o Programs


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WHO PARTICIPATES?

Land use disputes potentially involve a wide rangeo participants, including citizens, property owners,developers, environmental advocates, regulatory agencysta , and elected o cials. In theory, the most e ectiveway to prevent or resolve a multi-party public dispute isto make sure that all potentially a ected parties have aseat at the table. 20

O the 27 programs included in this study, 5 limitparticipation to government o cials dealing withinteragency or intergovernmental disputes, while 22allow property owners, citizens, and regulatory bodiesto participate. Court-annexed programs clearly de neand restrict participation to directly involved parties(including determinations o standing, when necessary).Local programs aimed at resolving disputes early in theland use planning or decision-making process tend to bemore inclusive.

The question o who should be allowed or encouragedto participate in a land use dispute resolution programdepends, o course, on what issues or disputes are beingaddressed.

20 See Susskind, et al., The Consensus Building Handbook in theResources section.

Who Participates?Intergovernmental andInteragency

ColoradoDelawareGeorgia (2)Minnesota

Property Owners, Citizen,Stakeholders, and GovernmentAgencies

Albuquerque, NMAustin, TX

Baltimore, MDBozeman, MT Cali orniaConnecticutDenver/Colorado Springs, COFlorida (2)HawaiiIdahoMaineMassachusetts (2)New York (2)North CarolinaOregonSouth CarolinaUtahVermontWashington


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WHAT TYPES OF ISSUES ARE ADDRESSED?

The issues addressed by the identi ed programs clusterinto our categories:

Site-speci c Disputes: Many land use disputesemerge over site-speci c issues, such as revising aneighborhood plan, increasing density on a parcel o land, or requesting a change in land use. Thiscategory includes both private development anddevelopment initiated by a public body.

Comprehensive Planning and Growth Management: Many disputes occur during the process o comprehensive planning and growth management

or example, landowners disagree with regulatoryprocedures and special conditions on permits; openspace advocates dispute zoning proposals; and

neighbors and developers object to redevelopmentinitiatives.

Interagency and Intergovernmental Plans: Landuse disputes are also the result o conficts betweenagencies or among levels o government. For instance,a local in rastructure plan may be inconsistent withan adjacent jurisdictions priorities or in confict witha state growth management policy. Alternatively,a local planning ordinance or part o a proposedmunicipal land use plan may be at odds with a stateagency plan or policy. Participants in the national policy dialogue pointed out that disputes betweenagencies sometimes more closely resemble site-speci c disputes, with agency o cials siding withdi erent stakeholders.

Natural Resources and Conservation: Many landuse disputes ocus on conservation issues. O ten,local property owners or lease holders that use publicland will raise concerns about land set aside oropen space, wetlands, or conservation areas. Stateor regional initiatives to conserve habitat may be

opposed by property owners, and in some regionsenergy development raises conficts with conservationgroups and local citizens.

I you compare who participates with what issues areaddressed, two important themes emerge:

Programs that predominantly (or only) addressinteragency and intergovernmental disputes generallyallow only government o cials to participate in theprocess.

In other cases, where programs address sitespeci c disputes, comprehensive planning andgrowth management, and/or natural resource andconservation issues, it is more likely that a the widerrange o stakeholders is allowed to participate.

The nature and requency o the land use issues to beaddressed should not only determine who should beinvolved, but when and how collaborative methods areused.

WHEN ARE COLLABORATIVE METHODS USED?

Not surprisingly, di erent programs use collaborativemethods at di erent times in the decision-makingprocess. The most common application is duringthe appeals process, which may reduce the costs o resolving disputes relative to administrative hearingsand litigation, but may not be the most e ective wayto prevent or at least mitigate some land use disputes.Many statewide statutes call or a time out ormediation on appeal and court-annexed programs deal with cases a ter ling but prior to trial.

Nine o the state statutes identi ed in this researcheither encourage or require mediation only uponappeal o a government bodys land use decision.(In Washington, this concerns adoption o land useplans; in most other states the decision is speci c to a

If you compare who participates with what issues are addressed, two important themesemerge:

Programs that predominantly (or only) address interagency and intergovernmental disputesgenerally allow only government o cials to participate in the process.

In other cases, where programs address site speci c disputes, comprehensive planningand growth management, and/or natural resource and conservation issues, it is morelikely that a the wider range o stakeholders is allowed to participate.


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particular development or land use change proposal.) None o these statutes requires or encourages any orm o collaborativemethods in the pre-approval or entitlement stage o the landuse decision-making process.

In the case o Cali ornia, the land use dispute resolution statute

does not o er anything that did not already exist as a mattero local court rules. As a matter o policy, almost every CountySuperior Court in Cali ornia requires mediation be ore theassignment o a trial date in any type o litigation. Given thisrequirement, most attempts to resolve land use disputes viamediation in Cali ornia do not occur until a ter a lawsuit hasbeen led by an aggrieved party or stakeholder group.

Other programs, by contrast, allow and encourage the use o collaborative methods at any time during the land use decision-making process. Some ocus on the planning process and employ

collaborative methods only during the pre-application phase.According to the prescriptive theory o dispute systemsdesign, an ideal land use dispute resolution program wouldstart by trying to prevent unnecessary disputes by engagingpeople early and o ten in (even prior to) the decision-makingprocess. Various collaborative methods may be used, romsimply encouraging the developer to hold a community meetingwith abutters prior to ormal application submittal, to o eringquali ed acilitators or mediators to help convene suchmeetings.

Realizing that it may not be possible to prevent all land usedisputes, an e ective system would provide low-cost proceduresto resolve disputes be ore moving to litigation and other rights-and power-based procedures.

In Minnesota, or example, the land use dispute resolutionstatute seems to contemplate that disputants will start bytrying to resolve their di erences through mediation. However,i the dispute is not resolved a ter 60 days, it goes to bindingarbitration be ore a panel selected by the parties and (i necessary) the state Bureau o Mediation Services.

Likewise, the Florida Land Use and Environmental DisputeResolution Act provides that i the parties are unable to reachagreement through mediation with a special magistrate, thatperson is empowered to make a determination whether thechallenged government action is unreasonable or un airlyburdens a ected landowners. The agency with decision-makingauthority may accept, modi y, or reject the magistrates opinion.

When Are CollabrativeMethods Used?

Planning Stage or Pre-ApprovalBozeman, MT DelawareDenver and Colorado Springs, COFlorida Confict Resolution ConsortiumGeorgia (2)HawaiiMinnesota

Appeal of Initial DecisionCali orniaConnecticutFL Land Use Dispute Resolution ActMaineMA Land Court MediationNorth CarolinaSouth CarolinaVermontWashington

Various Points in Process(may include policy development,siting, and appeals)

Albuquerque, NMAustin, TXBaltimore, MDColoradoIdahoMA Of ce of Dispute Resolution

OregonUtahWarwick, NY


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HOW ARE COLLABORATIVE METHODS EMPLOYED?

Regardless o when collaborative methods are employedin the decision-making process, a number o elementsappear with some regularity among the variousprograms:

Screen Potential Cases: Some programs, such asthe community-based program in Albuquerque, NewMexico, use a screening tool to select cases thatappear to be most appropriate or acilitation or someother orm o collaboration. In New Mexico, the sta examines pending cases be ore the Environmental Planning Commission and identi es those that maybe contentious or result in appeals. The Vermontpilot project likewise provides an explicit expectationthat cases will be screened be ore proceeding to

acilitation and mediation. The Utah ombudsmanreports that two-thirds o the inquiries it receivesrequire no mediation services, but are satis ed byaccess to in ormation about the laws governing landuse and local government authority.

Jointly Select Facilitators and Mediators: In several programs, the parties jointly select a acilitator ormediator. In some cases, a mediator or acilitator maybe suggested by one o the parties or the agency. Inother situations, the program provides sta mediatorsor contracts with pro essional mediators and

acilitators to provide services. Sometimes the stateor local agency maintains a list o quali ed mediatorsand acilitators, and parties select someone rom thatlist.

One o the likely barriers to e ective land use disputeresolution is easy access to a ordable, quali ed, readilyavailable mediators and acilitators. The value o theAlbuquerque, Denver, and ormer Austin programs isthat they provide disputants immediate access to suchpro essionals, without requiring the parties to si tthrough a long roster or to hunt the market or help.

Use Facilitators and Mediators with Land Use andOther Expertise: In several states, such as Colorado,Idaho, and Vermont, the mediators must haveexpertise in land use planning, regulatory processes,and other quali cations to serve as a mediator or

acilitator. The roster o acilitators and mediatorsmaintained by the Colorado O ce o Smart Growthis a good example o how to create a quali ed list o impartial process experts. As a general rule, mediatorsknowledgeable o land use can be ar more e ectivein helping parties communicate, understand eachothers interests, and package agreements.

Share Costs: In some cases, the parties to thedisputes share in the costs o mediation and disputeresolution. These may include costs or pro essional

services as well as cost incurred to convene meetingsor le regulatory decisions.

In a ew cases, the cost or acilitators or mediatorshas been paid or or subsidized by a governmententity. Interestingly, the Vermont pilot programproviding essentially ree mediation among the districtcommissions resulted in very ew mediations. Thisoutcome has raised concerns rom practitioners andothers about whether such services are best provided bythe state or the ree market.

Delay the Regulatory Proceeding: In some statesand localities, the regulatory clock (deadline orpursuing legal action) is put on hold while themediation or dispute resolution process is takingplace. A ormal statutory time out is o ered toensure that deadlines do not constrain the use o dispute resolution; this is typically accompanied bytime limits to prevent an open-ended delay. Mosto ten, the statute or rules guiding the process providea clear time rame or the dispute resolution to take

place.

Allow for Public Review: Several programs require apublic meeting to allow citizens and others a chanceto review the outcome o the dispute resolutionprocess. One question or uture research is the degreeo con dentiality that is appropriate to encouragesettlement and, at the same time, does not in ringeon the public interest and the need or transparentdecision making.

One question for future research is the degree of con dentiality that is appropriate to encouragesettlement and, at the same time, does notin ringe on the public interest and the need

or transparent decision making.


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THE ROLE OF STATUTORY AUTHORIZATION

Participants in the national policy dialogue expressedsigni cant interest in the value or role o statutoryauthorization. Several participants noted that statutoryauthorization helps build awareness, credibility, andlegitimacy or using collaborative methods to preventand resolve land use disputes. However, they concludedthat without the necessary resourcestypically sta andmoneystatutory authorizations o ten become symbolicgestures.

Several states have passed supporting language ordispute resolution in statutes guides land use. Theseinclude Idaho, Cali ornia, and Connecticut. On rstblush, the Idaho statute seems to provide the mostcomprehensive land use dispute resolution system. Itmandates mediation i requested by any party, includingthe government, during or a ter the planning process.The prospect o using some orm o collaborativemethods during the planning process as well as a tera decision is made captures the key elements o acomprehensive dispute systems design illustrated inFigure 1.

Connecticut passed statutory language in 2001 toencourage mediation, primarily during the SuperiorCourt appeals process. The statute provides or tolling(temporary suspension) o legal deadlines whilemediation is underway, but constrains delay by notextending mediation beyond 180 days unless jointlyagreed upon by all parties to the dispute.

Cali ornia passed similar language encouraging mediationduring the appeals process, and went urther, by allowingthe governor to establish a dispute resolution o ce toassist with conficts among permitting authorities, state

unctional plans, state in rastructure projects, and local projects. However, the governor never established suchan o ce, and the statute has since expired.

Georgias statute authorizes the Department o Community A airs to provide mediation or planning and

growth disputes that cut across municipal boundaries.Maines statute allows or mediation a ter an aggrievedparty has ailed to obtain application approval, andmandates state agencies to participate in mediationwhen the courts Alternative Dispute Resolution (ADR)

Service requests their participation.While admirable, it appears that these statewide statuteshave resulted in ew e ective systems to prevent andresolve land use disputes. The Cali ornia law was notrenewed, and we were not able to identi y any particularcases that arose rom this law. The Connecticut statutehas resulted in some mediated cases (which couldhave occurred anyway, so the cause and e ect o thestatute is hard to determine), but these represented

ewer than 10 percent o the judicial cases concerning

land use issues. The Idaho law has resulted in only aew mediated cases. In Georgia, very ew mediationshave resulted, in part probably due to the strong homerule tradition o the state and because most disputesare internal to a municipality rather than multiple

jurisdictions.

In all o these cases, the general language o thestatute, the lack o unding to support the use o collaborative methods, and/or the lack o a program oro ce to implement all contribute to very limited impact

on the ground.Where statutes assign more responsibility to a stateagency, court o ce, program or other entity, statewidestatutes seem to have somewhat greater impact.

Colorados statute requires collaboration prior tolitigating certain planning disputes, but it applies onlyto government entities and does not compel privateparties to engage in the process. While the scope o this statute is limited and arguably does not addressthe bulk o land use disputesthose initiated against alocal agency as a result o some entitlement granted to adeveloper or the enactment o an ordinanceit providesa model to address disputes that cut across jurisdictional boundaries, such as city and county disputes overgrowth and annexation. The Colorado statute assignsresponsibility to the O ce o Smart Growth, whichmaintains a list o quali ed mediators, provides thatre erral list to local governments, and o ers general education on dispute resolution.

Where statutes assign more responsibilityto a state agency, court o ice, program or other entity, statewide statutes seem to havesomewhat greater impact.


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The Delaware statute embeds dispute resolution inthe overall Planning Act and a state program knownas Livable Delaware. The O ce o State PlanningCoordination, through various e orts, plays a disputeprevention role in early technical input and throughsteps in to acilitate resolution among various

jurisdictions o some kinds o applications.

Floridas statute provides or a special magistrate tohelp resolve disputes between property owners andgovernment regulators, especially concerning potential property rights in ringements.

Oregon and Massachusetts created statewide disputeresolution o ces (both o which have since beenrelocated to the state university system). In Oregon,the o ce worked with the Land Use Board o Appealsto get cases into mediation, and in some cases providedgrants or unding the e orts. Now the Oregon ConsensusProgram receives monies rom the Department o LandConservation and Development to assess and provideland use mediation services across the state. For its part,Massachusetts helped the Land Court establish a court-annexed screening and mediation program that is nowbid out by the court to program providers.

The South Carolina statute explicitly encourageslandowners to pursue mediation to resolve claims againstlocal governments. It appears that several countiesin the state have subsequently adopted mandatorymediation programs.

There are ew dispute resolution programs operating atthe regional level, primarily because land use decisionmaking in the U.S. typically does not happen at theregional level (except or transportation unding andprioritization through Municipal Planning Organizationsor MPOs). The Vermont Act 250 statute establishedregional commissions to review local cases that meetcertain criteria. The District Commissions have triedseveral di erent pilot mediation programs and currentlyare participating in a oundation- unded e ort to screenand, i appropriate, mediate cases prior to the nal hearing. The screening is mandatory, but participation inmediation is voluntary.

THE OUTCOMES OF CURRENT PROGRAMS

It is di cult to obtain reliable statistics to compare the

success rates o the identi ed programs. Among the 27land use dispute resolution programs identi ed in thisresearch, only 9 provided data on the number o disputesresolved through negotiation, mediation, or some othercollaborative method. The clearest conclusion rom thislimited in ormation is that the majority o disputes wereresolved when such methods were employed; programsreported success rates ranging rom 60 to 80 percent.And, as participants in the national policy dialoguepointed out, parties o ten resolve their issues a termediation, even when the process itsel does not resultin a ormal settlement. In some cases, the screeningprocess itsel serves an important unction in identi yingparties interests and concerns, and acilitatingproductive conversations.

The highest reported success rate is that o Delaware, inwhich government agencies receive assistance resolvinginter-jurisdictional planning conficts. O 60 casesre erred to this program, all but one were resolved.

O approximately 30 to 35 local land use disputesaddressed annually by Community Mediation Concepts inColorado, 80 percent result in settlements representedby written agreements among the a ected parties. TheMassachusetts O ce o Dispute Resolution reports asimilar rate o success with the environmental cases

(including wetland permits) it considers. MassachusettsLand Court mediation program has resolved 70 percento the cases in which parties voluntarily agreed toparticipate in mediation a ter a mandatory screeningprocess.

Albuquerque and Austin reported ormal resolution ratesaround 50 to 60 percent, but noted that many morecases are resolved at various stages o the decision orplanning process, not as an immediate outcome o themediation.

Several programs (Oregon, Utah, and Vermont) reportedsuch small numbers or mediation that it is di cultto draw broad conclusions about success. It is worthnoting, however, that even in these small samples,more cases than not are resolved success ully whencollaborative methods are employed.

In addition to these quanti able outcomes, participantsin the national policy dialogue identi ed a number o other valuable outcomes generated by land use dispute


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resolution programs. In some cases, these advantagesare aspirational, as participants noted many constraintsthat have prevented their programs rom achieving their

ull potential.

Participants in a collaborative process typicallyemerge with a better understanding o their ownand others interests and concerns.

Collaborative processes o ten increase understanding andclarity among a ected parties because they bring themtogether in a constructive and structured way and allow

or in ormal interaction and innovation. By contrast,typical public hearings tend to provide input only atthe end game o decision making, limit conversationand dialogue, and encourage parties to take and hold

rm positions rather than engage in dialogue anddeliberation.

Participants in the national policy dialogue reportedadvantages to providing tools and processes thatincrease the understanding o a ected parties so theymay narrow, i not resolve, their disputes. Such a systemcan identi y parties interests and help them prioritizeor de ne which are most important. Ideally, the process

provides tools and techniques to encourage parties togenerate options and alternatives that might meet theirinterestssometimes including options that would notbe available through traditional rights- or power-basedapproaches.

Collaborative processes encourage the tailoredsolutions or particular cases.

Collaborative processes help diverse parties cra toutcomes that better meet a greater number o interests.For example, a typically designed big box store mightemerge rom a collaborative process with a moretailored, local design that ts in with the communityand draws more customers because o its attractiveness.

Parties in a collaborative process are more likely to

support and help implement a durable outcome.

E ective systems increase diverse parties participationin success ul outcomes. This encourages outcomesthat meet the interests o a greater number o parties,greater support or those outcomes, and thus easierimplementation and long-term acceptance. The morea ected parties that eel ownership o the outcome, thegreater chance o long-term satis action.


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Systematic use of collaborative methods mayreduce litigation and concurrent costs.

The most robust dispute resolution systems ensurethat only the most appropriate cases make their wayto court. This likely reduces legal ees and helpsreduce the uncertainty that results rom a longappeals process.

National policy dialogue participants urged theincorporation o collaborative methods into thelarger land use planning and decision process, thusproviding a more systematic approach to dealing withrecurring, chronic disputes. It was suggested thatthese systems need to be sustainable and stable,providing appropriate support at every stage o theprocess. This requires a great deal o outreach andeducation to those who might use these methods,both within government agencies and among thegeneral public.

This approach can improve governance andencourage a broader sense o community.

A local government that regularly uses collaborativemethods in its land use planning and decision processesshould enjoy improved governance and strongercon dence in democracy. Stakeholders should eel moresatis action with the overall planning and permittingprocess beyond and above any particular decision oroutcome. Parties will have greater chances or earlyinput, public deliberation, assistance with more ocusedconversations, and opportunities to prevent or resolvedisputes be ore disputes become expensive (legal costs,relationships, and time).

Such systems encourage relationships, trust building,and in ormal dialogue among diverse stakeholders in thecommunity over time rather than requent litigation anddistrust.

As a result o this process, parties should similarly eel abetter sense o community. Citizens engage directly andearly with their governing boards and decision makers.Developers and private property owners have multipleopportunities to address interests and tailor proposalsto meet needs and desires be ore investing massivedesign or process costs. Relationships among diverseparties, built on multiple opportunities or input andengagement, increase a sense o unctioning community.


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Based on the analysis o current practice, along withinput rom participants at the national policy dialogue

and the literature on dispute resolution systems design,we suggest the ollowing best practices or designingand administering land use dispute resolution programs.

1. DIAGNOSE THE EXISTING SYSTEM

The process o designing a land use dispute resolutionsystem should begin by diagnosing the existingprocedures or preventing and resolving such disputes.This diagnosis should seek to answer the ollowing typeso questions:

What are the current and recent issues in dispute?

Who are the parties?

How many disputes are there?

How are the disputes being handled?

What type of dispute resolution procedures are beingused and with what requency?

What are the overall costs and bene ts of these

procedures? Why are particular procedures being used and not

others?

What functions are served by the differentprocedures?

What obstacles limit the use of more collaborativeapproaches?

The answers to these questions should illustrate the typeand number o disputes that any new program will have

to handle in the uture, a map o the existing disputeresolution procedures and their unctions, and theobstacles to using more collaborative methods.

2. ENGAGE AFFECTED PARTIES IN THE DESIGN OF THEPROGRAM

This step will help create a sense o legitimacy,credibility, and ownership. A dispute resolution systemwill only be e ective i people buy into it.

b esT P raCTICes

3. SEEK TO CREATE A COMPREHENSIVE PROGRAM

Ideally, a land use dispute resolution program shouldstrive to address a range o issues during at least several stages in a permitting or planning process. This mightinclude procedures to ensure early consultation betweendevelopers, sta , and abutters; acilitation assistance

or public meetings or workshops; as well as mediationassistance should the case rise to more intense confictcloser to or during nal decision making.

Comprehensive systems should also employ a varietyo collaborative methods, such as screening, in ormal negotiation, acilitation, mediation, and act- nding.In short, comprehensive systems should o er multiplepoints o intervention and multiple collaborativemethods.

The two conceptual models presented earlier in thisreport provide two good examples o how this mightbe done, as do some o the existing programs. ThePace University Program in the Hudson River Valleybegan with intensive training o local o cials, thenbuilding and supporting this network o local o cials.This systematic training o numerous o cials over timeincorporated the principles o dispute resolution intolocal government, changing the culture o decisionmaking.

In designing a comprehensive land use disputeresolution program, keep in mind the ollowingprinciples (as explained earlier):

Put the focus on interests;

Build in loop-back procedures that encourage

parties to return to negotiation; Provide low-cost back-up procedures; and

Arrange procedures in a low-to-high cost sequence.


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TOP-TEN BEST PRACTICES1. Diagnose the Existing System

2. Engage Affected Parties in the Design of

the Program3. Seek to Create a Comprehensive Program

4. Be Selective and Choose an AppropriateScale

5. Employ Proven Tools and Techniques

6. Link the Program to the Formal Decision-making Process

7. Provide the Necessary Motivation, Skills,and Resources

8. Conduct a Series o Pilot Projects

9. Make Services Affordable, Available, andE cient

10. Evaluate, Learn, and Adapt

4. BE SELECTIVE AND CHOOSE AN APPROPRIATE SCALE

Success ul programs nee d to be selective. Not all cases, stages, or parties are amenable to collaboration.For instance, mediation too early in a decisionprocessbe ore issues and parties are clari edwould be o little use. A project that has generatedabsolute opposition by an entire, politically infuential neighborhood is not likely to be helped throughcollaborative methods.

E ective programs should include an active screeningcomponent. For instance, in the Vermont program,

screening o cases allows regional commissions (andthe parties) to quickly ascertain at a reasonable costwhether a ull mediation would likely be help ul andsuccess ul. Sometimes the mere act o screening will help the parties settle be ore mediation is initiated.

Several participants in the national policy dialogueraised this question in a slightly di erent manner, askingwhether land use dispute resolution programs are more

or less e ective depending on the scale at which it isapplied.

Unless there are su cient numbers o cases orapplications that generate intense interest and/orconfict, there is not likely to be much (i any) needto integrate collaborative methods into the decision-making process. The most appropriate situations include:

Courts with numerous, backlogged cases clearly havean incentive to create programs or systems thatreduce case loads.

Local boards and commissions with too manyapplications and too ew resources (especially thetime o many volunteer boards) may be seekingways to reduce contentious decisions and to atleast improve applications that strive to incorporateabutter interests early and hone outstanding issues ordisputes.

In Vermont, the pilot program has been e ective atthe scale o the state court and District Commission.However, it has struggled to identi y cases at themunicipal scale, suggesting that or small to mediumsized municipalities, ormally designed systems may notbe practical.

5. EMPLOY PROVEN TOOLS AND TECHNIQUES

As explained in earlier sections o this report, currentprograms have demonstrated the value o a number o tools and techniques to improve the e ectiveness o anyland use dispute resolution program:

Screen potential cases;

Jointly select facilitators and mediators;

Use facilitators and mediators with land use and other

experience; Share costs;

Delay regulatory proceedings; and

Allow for public review and comment.

For urther details on these tools, see the previoussection on How are Collaborative Methods Employed?on page 21.


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6. LINK THE PROGRAM TO THE FORMAL DECISION-MAKING PROCESS

This prescription implies that the existing decision-making authorities must be willing to experiment withnew ways o preventing and resolving disputes, andinstill su cient con dence in the parties that i theyresolve their di erences, the ormal decision makerswill do everything in their power to implement thenegotiated outcome.

As a matter o design, it is important to determinewhether negotiated agreements are binding or non-binding on decision makers, and what happens i anagreement is not reached through this approach.

7. PROVIDE THE NECESSARY MOTIVATION, SKILLS, ANDRESOURCES

This practice ocuses on the need to change theculture o decision making, and to make it easy to usecollaborative methods as a regular part o land useplanning and decision processes. Among other things,this may include the ollowing:

Enact statutes to authorize and encourage the use of collaborative methods to prevent and resolve land useconficts.

Clarify the rules governing collaborative processes,including who participates, how decisions are made,issues o con dentiality, the role o acilitators andmediators, and so on.

Maintain rosters of quali ed facilitators andmediators.

Provide training and education to raise awareness,understanding, and capacity among potential

disputants as well as aspiring acilitators andmediators.

Provide nancial resources and technical staff supportto in orm and invigorate e orts to prevent and resolveland use disputes.

Most success ul programs include an educationcomponent. This may be as limited as a fyer andnotice about mediation as an alternative during thewait period or court. Or the system may seek, overtime, to incorporate collaborative values, principles,and tools into the thinking o those making decisions,as exempli ed by the Pace University program in theHudson River Valley. Given that land use decision makingis already complex and that many parties are accustomedto doing business by the book, a transition tocollaborative methods will require ongoing educationand persuasion, particularly in the early li e o programs.

8. CONDUCT A SERIES OF PILOT PROJECTS

Framing a new program as a pilot project canaccomplish two important tasks. First, it allowsparticipants to identi y and eliminate obstacles in thesystem, minimize con usion and rustration, and buildpositive experience.

Second, it provides an opportunity to build political support or the program, a key ingredient throughoutthe li e o a land use dispute resolution program. Anysystem, in order to survive and thrive, must be politicallysustainable. That is, it needs to develop and maintainpolitical support or its continued operation amongdecision makers, planners, and stakeholders.

The Denver program, or example, provides a directservice to elected city council members, helping themsolve di cult land use problems. The program has builtstrong relationships with the city council, provides adirect service, and thus continues to be unded.

The Albuquerque program, in contrast, is embeddedin city government and thus its e orts areindistinguishable rom city administration. At the sametime, by providing a direct service to abutters anddevelopers, it has built political support. For example,during a budget crisis the city council considered cuttingthis program, but diverse interests came to its de enseand preserved its budget and operations.

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