Environmental Dispute Resolution and Land Use Decisionmaking

• Author: John R. Nolon
• Pages: 377-410

377

Chapter 10:

Environmental Dispute

ResolutionandLand

UseDecisionmaking

I. Land Use Decisions and Negotiations: Inherent

Conf‌licts and Alternative Processes

A. Achieving Balance Through Conf‌lict Resolution

is book began with a look at the history of land use planning and regu-

lation, noting that the journey has involved a constant search for balance

between development and conservation. It has addressed this theme by dis-

cussing the numerous land use planning and regulatory techniques that can

be used to achieve that balance, such as cluster subdivisions and transfer of

development rights: techniques that respect property rights and conservation

needs. Regional plans can create growth boundaries, local plans can desig-

nate critical environmental areas, and individual development projects can

be designed to leave critical lands undeveloped. Each time that these tech-

niques are employed, they create conict. Neighbors object to being next to

a priority growth area, while landowners push back when planners ask that

some of their land be preserved as open space.

All serious eorts to achieve balance bet ween development and conserva-

tion give rise to conict among the parties aected by the policy or proposal

involved. Because conict is so prevalent in land use decisions and adjudi-

cations, the book has saved for its last chapter the topic of Environmental

Dispute Resolution (EDR), a type of alternative dispute resolution where

environmental issues are important. e dispute resolution techniques used

in EDR are, typically, mediation and facilitation, where negotiations among

disputants are managed by neutrals, although sometimes objective local lead-

ers can facilitate land use disputes properly. Advocates for these processes

believe that through properly managed dispute resolution procedures, con-

ict can be used to achieve better solutions and even improve the civic envi-

ronment of a community.

378 Standing Ground

Disputes over land use projects normally are decided by a rule-bound pro-

cess that involves an application to the municipality, review by a local leg-

islative or administrative body, opportunity for public comment, and then

a decision by the responsible authority. e developer submits the proposal

to local sta, the board sets it down for public hearing (often months later),

those aected by the proposal are invited to speak for a limited time on the

proposal, and the land use board members then consider what they heard

and the facts on the record and vote, deciding the matter in a formal man-

ner. Similar processes are used to establish land use policies, such as amend-

ing the comprehensive plan or zoning. ese legally-prescribed steps have

as their purpose protecting the due process rights of participants and are

the minimum required to meet lega l standards. Most land use matters can

be decided through this process without resorting to facilitated or mediated

engagement of the stakeholders. When the project or policy stakes are high

and the consequences many, the traditional process leaves little room for the

parties to seek eective solutions through face-to-face negotiations; instead

they argue passionately at a single public hearing, loudly stating their posi-

tion on the project or policy, leaving it to the land use board to decide who

wins and who loses. Win-lose solutions fuel litigation, which is the likely

destination for many controversial projects and policies that leave a defeated

party in the dust.

is chapter explains how much of what occurs when a development

project is submitted, reviewed, and approved at the local governmental level

involves negotiation and dispute resolution, particularly when it comes to

protecting natural resources and environmental functions. It illustrates how

current negotiation, mediation, and consensus-building techniques can be

used to achieve better outcomes in these high stakes circumstances than the

results of the traditional adjudicatory process used by most local la nd use

boards. is chapter will draw on the lessons learned from the 30-year his-

tory of environmental dispute resolution as developed by professional media-

tors and attorneys groomed in settlement rather than litigation.

B. Land Use Decisions As Negotiations

When a landowner submits an application for a development permit to a

local land use agency, an extended process of negotiation is initiated. e

parties to this negotiation are the owner, the members of the local adminis-

trative agency with approval authority, other involved public agencies, and

those aected by the proposed project: neighbors, taxpayers, and citizens of

Environmental Dispute Resolution and Land Use Decisionmaking 379

the community. In EDR parlance, these actors are called the stakeholders.

Unlike commercial and personal negotiations, this process is not viewed by

most of its participants as a negotiation, in the traditional sense. Local zon-

ing ordinances aord the landowner property rights that must be respected.

State and local statutes prescribe standards and procedures that the agency

members must follow. Aected neighbors and citizens receive notice of their

right to attend and speak at one or more public hearings. is process is not

organized, in most localities, as a structured negotiation in which the par-

ties meet face-to-face, follow a self-determined process of decisionmaking,

and arrive at a mutually acceptable agreement based on facts gathered in the

process and compromise on all sides.

e local development approval process often costs the applicant signi-

cant sums of money, involves only indirect contacts among interested par-

ties, and provides little opportunity to develop creative, win-win solutions.

For most signicant development proposals, the process is lengthy, inex-

ible, costly, and frustrating. e outcomes are unpredictable a nd relation-

ships among those involved are seriously damaged and some participants

maligned or worse. Nonetheless, during the awkward journey of a develop-

ment proposal through the local approval process, critical interests of many

stakeholders in the matter are expressed, heard, considered, and disposed of

by a decision rendered by a voluntary board of local citizens. is is, in the

classic sense, a negotiation that resolves, if not satises, each participant’s

interests. W hen it is seen as such, methods of making it more productive,

satisfying, and ecient seem obvious, if they can be squared with the admin-

istrative process required by law.

C. Using Dispute Resolution Early to Minimize Conf‌lict

Although mediation is described as a dispute resolution technique, it is also

an eective means of avoiding disputes in the land use area. Often, when a

developer seeks approval of a project from a local board, the public may not

become involved in the process until the public hearing stage, long after the

proposal is rst submitted to sta and discussed informally with them and

the board. By the time of the public hearing, the project or policy opponents

have become alienated, and even further opposed, by being left out of any

meaningful conversation; meanwhile the developer has invested substantial

time, money, and energy in the proposal and has become highly invested in

it. Due to this investment, the developer may resist suggested changes, more

so than if those suggestions had been made earlier. Public hearings and pub-