When to Use Alternative Dispute Resolution

ADR can be used at several stages in the land use planning or regulatory process. The success of ADR decreases in the later stages of a project. The price, commitment required, and duration needed to successfully carry out ADR can correspondingly increase.  Therefore land use professionals and parties to a dispute should emphasize prevention and early resolution of disputes wherever possible.

In Vermont, ADR may be used effectively:

At the outset of planning and development activity. The Vermont Municipal and Regional Planning and Development Act, 24 V.S.A., Chapter 117, for example, contains process goals that include participation and local decision making provisions to help municipalities and regions eliminate and prevent development problems in planning ( see 24 V.S.A. §4302(b)). Selectboards, city councils, planning commissions, zoning boards and development review boards can fulfill this role as they set goals, plan, and adopt land use regulations.  Their procedures provide stakeholders access to decision-making processes that can serve as a kind of ADR to ensure that plans and regulations are “owned” by the community at large.  By law, municipalities are also required to use notice, information sharing in a variety of forms, and hearings or open meetings to ensure that the public and interested parties are engaged in and informed about issues affecting them.

In land use permitting processes to help prevent, resolve, or mitigate disputes. Under Act 250, Vermont’s statewide land use regulatory legislation, and other statewide permitting laws, at the request of an applicant, all stakeholders may be brought together in advance of formal hearings for a “scoping” process that may lead to consensus on the issues (see 3 V.S.A. § 2828).  In addition, Act 250 expressly encourages the resolution of conflicts in a non-adversarial manner (see 10 V.S.A, § 6085(e)).   Rule 16(D) of the Natural Resources Board’s District Environmental Commission Act 250 Rules implements this provision, stating “[i]n the normal course of their duties, the district commissions shall promote expeditious, informal and non-adversarial resolution of issues, require the timely exchange of information concerning an application and encourage participants to settle differences in any Act 250 proceeding.”  While there is no express provision for ADR in municipal land use proceedings under Chapter 117, municipalities are not prohibited from adopting such procedures and may employ advisory commissions that can perform a facilitative function in permitting proceedings.  See 24 V.S.A. §§ 1202 (c), 4464(d).

As a voluntary alternative to appeals from a state or local permitting agency to the courts. If the parties are not satisfied with the speed, cost, or prospects of resolving contentious issues through court proceedings, they may agree to engage in ADR before any of them seeks further relief in court.

In court proceedings. When land use disputes are not resolved collaboratively, or one or more parties are not satisfied with the results achieved in a local or Act 250 proceeding, an appeal may be taken to the Environmental Division of the Superior Court (formerly the Environmental Court). The procedural rules applicable in the Environmental Division, allow it to use Vermont Rule of Civil Procedure 16.3, which provides for the use of ADR after an appeal is filed unless ADR has already been voluntarily tried in “good faith”.  When the parties agree, or in certain specific types of case, the rule requires the parties to engage in ADR.  In other instances, ADR may be required if the judge or clerk determines that ADR would be effective or would serve the best interests of the parties.  Where ADR must be used, the rule provides the basic procedure.  In addition, the Environmental Division rules require the court and parties to consider the use of ADR at an initial conference and to schedule any conference that may be ordered or agreed upon.  Vermont Rules for Environmental Court Proceedings 2(d)(2), (3).

Training Staff and Town BylawsMunicipalities and state agencies can strengthen their ADR capacities by training their staff, creating collaborative mechanisms, and putting in place specific procedures to support negotiation, facilitation and cooperation amongst parties in disputes. Town bylaws could provide mediation options within planning and zoning procedures, spelling out how they link to formal processes, who pays, what the process and guidelines are, and the effect of any agreements.