Alternative Dispute Resolution

IN BRIEF

Disputes that arise in land use planning and regulation present a notoriously challenging task for Vermont towns, state agencies, land owners, developers, and courts.   Due to their intensity and duration, disputes can overwhelm traditional planning and approval processes.  In recent years, a variety of alternative dispute resolution (ADR) methods have been developed to help resolve land use disputes without expensive and time-consuming administrative and court proceedings.  ADR is available in Vermont to be used at various stages in the land use planning and regulatory processes to prevent, as well as to resolve, disputes.

SUMMARY

Alternative dispute resolution (ADR) is a general term encompassing efforts to resolve a conflict outside of a formal board or court proceeding.  Over the past several decades, ADR has beethe n utilized in the United States to provide results that are more satisfactory to the parties involved than those achieved through traditional adversarial and coercive methods, and to address heavy court caseloads.  Dozens of states, including Vermont, now require or encourage ADR specifically by statute or court rule and offer assistance to those who opt to resolve disputes through ADR.

ADR in VermontThe Vermont Supreme Court (Gates v. Gates, 168 Vt. 64, 72, 1998) has stated that “ADR is a welcome, necessary, and complementary part of an integrated and healthy Vermont community.”  Rule 16.3 of the Vermont Rules of Civil Procedure was initially adopted by the Court in 1999. It requires the use of ADR in some civil actions and permits it in all others.

Increasingly, ADR is used in land use disputes, where a wide range of stakeholders and interests with complex and ongoing relationships make adversarial approaches more cumbersome and less attractive. ADR has been effectively used to address neighborhood impacts, open space, sewage treatment and disposal, commercial development, road construction impacts, noise, agriculture preservation, growth management, planning, and the siting of subdivisions.

We have broken down this tool into the following sections:

The Benefits of Alternative Dispute Resolution: outlines the positive outcomes resulting from ADR.

The Methods of Alternative Dispute Resolution: There is more than one method for ADR and this section summarizes the options that can be used alone or in combinations.

When to Use Alternative Dispute Resolution: There are different stages of land use planning and regulation where ADR can be utilized as this section outlines.

Increasing the Success of Alternative Dispute Resolution: This section outlines helpful hints and lessons learned for a successful ADR process.

Resources

Documents and Reports:

Collaborative Developments: A Report on Development Approvals Achieved through Collaboration, Pace University School of Law, Land Use Law Center, 2003

Field, Patrick, Harvey, Kate and Strassberg, Matt, Integrating Mediation in Land Use Decision Making, Lincoln Institute of Land Policy, J a n u a r y 2 0 1 0

McKinney, et al.  Responding to Streams of Land Use Disputes: A Systems Approach, Planning and Environmental Law, American Planning Association (2008).

Nolon, John and Bacher, Jessica, Zoning and Land Use Planning, 37 Real Est. L.J. 200 (Winter 2008).

Nolon, Sean and Beck, Emily, Collaborative Developments: A Report on Development Approvals Achieved through Collaboration, Pace University School of Law, Land Use Law Center, 2003.

Mediating Community Land-Use and Development Conflicts, Report of the Thirty-First Grafton Conference, Windham Foundation, Grafton, Vermont, November 6-8, 2005

Susskind, Lawrence, and the Consensus Building Institute, Using Assisted Negotiation to Settle Land Use Disputes, A Guidebook for Public Officials, Cambridge, 1999.

Websites:

www.epa.gov/adr/cprc_policy_guidance.html

www.nrb.state.vt.us/lup/mediation.htm

www.vpic.info/pubs/planningmanual

www.vermontjudiciary.org/GTC/environmental/Mediation.aspx (Information about mediation and a list of mediators in the Vermont area)