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 been 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.

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.

Benefits of ADR

As the old adage goes, an ounce of prevention is worth a pound of cure. In land use disputes, where a wide range of stakeholders and interests with complex and ongoing relationships make coercive approaches more cumbersome and less attractive, ADR can

• give stakeholders access to decision-making processes to ensure that plans and regulations  are “owned” by the community at large.
• prevent disputes before they arise, or resolve or mitigate them before they deteriorate into litigation.
• resolve disputes without expensive and time-consuming administrative and court proceedings and reduce the caseloads of administrative bodies and courts.
• provide results that are more satisfactory to the disputants than those achieved through traditional adversarial and coercive methods.
• help the parties to understand their interests, identify common objectives, share information,  explore various options, and arrive at an agreement for resolving the conflict.
• achieve results without replacing a party’s legal rights, which can always be raised in court if the ADR result is unacceptable.

Methods of ADR

ADR methods offer a wide range of alternatives to litigation. They may be used alone or combined and modified to suit a specific context.  The most important of these methods are summarized below:

• Negotiation and facilitation are at the core of most ADR efforts.  Negotiation involves an exchange of information about interests and positions between the parties to help them reach a compromise solution.  Facilitation brings in the help of an outside party, where such a compromise cannot be reached by the parties alone.
• Mediation is a more formal and structured kind of assisted negotiation conducted by a neutral third-party mediator (the “neutral”), who may use a variety of techniques to achieve a consensus-based solution agreeable to the parties.  The neutral normally must be acceptable to all parties and usually has no authority to require them to accept a result.  The neutral facilitates the process, helping the parties to understand their interests, identify common objectives, share information, explore various options, and arrive at an agreement for resolving the conflict.  The neutral ordinarily will truly be neutral, having no stake in the particular project or technical issue.  In some instances, he or she may be a technical specialist, or even have relationships with all parties (increasing the chance of influence, trust and community acceptance).
• Fact-finding/neutral evaluation provides an opportunity for parties to engage a professional expert in the area in controversy to review the facts and evaluate options and solutions to the dispute or narrow the breadth of the dispute in light of the realities of possible litigation. These efforts can also take the form of a “mini-trial” late in the pre-trial process where each side presents a limited version of its case before a neutral fact-finder and decision-makers from both sides.  The neutral party works with the decision-makers in the hopes of facilitating a settlement.
• Binding arbitration is a relatively formal alternative to the court system.  Arbitration consists of a hearing conducted by a neutral arbitrator or a panel of arbitrators usually consisting of one member chosen by each party and one chosen by the other members.  The neutral arbitrator, usually a professional specializing in arbitration, or the panel, listens to the evidence and arguments of each party.  The arbitrator or panel then renders a binding, or in some cases non-binding, decision based on existing law and procedure.  The parties have, by prior agreement, entrusted the neutral with decision-making authority over the matter in dispute.

When to use ADR

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 Bylaws: Municipalities 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.

Increasing the success of ADR

While there are many benefits to using ADR, there are also tradeoffs and challenges.  Recent studies suggest that how a case is screened for ADR is critical, that ADR is more effective at reaching settlements than restoring relationships, and that ADR is not a cure-all for the difficult and complex issues facing municipal decision-makers in Vermont. To address these concerns, you should ask your ADR professionals and lawyers to advise you on the following factors as they apply in your situation.

ADR is most likely to be effective if, as appropriate in particular circumstances:

• ADR resources and procedures exist in the municipality, state board, or court.
• The municipality or other entity involved is prepared to use discretion and flexibility transparently, even-handedly, and with sufficient process and participation to prevent perceptions of special treatment, behind the scenes bargaining, and arbitrary application of local rules.
• A common understanding of the issues exists so that a third party could be engaged to develop a joint assessment to review the issues and formulate recommendations on how to resolve the dispute or strengthen the community process.
• There is sufficient interest, commitment, and trust to pursue the process with participation of all relevant parties and stakeholders.
• As necessary to build confidence where positions have hardened, dialogue between parties is required. Issues that are highly controversial, or if the costs of failure are high, initial measures can be undertaken, such as postponing contentious decisions, carrying out site visits, technical discussions, and joint work on issues of mutual concern.
• An experienced third party mediator, facilitator, or participatory planning advisor is available and can be agreed upon to serve at the outset to facilitate the process.
• Available ADR options will fit the context, timing, and interests of the parties, with or without the involvement of a neutral.
• There is agreement on mechanisms, process/rules and implementation arrangements, with or without the involvement of a neutral.
• The estimated time, energy, and resources involved in ADR are no greater than those for traditional processes, unless the prospect for a satisfactory result is high.
• Any resulting agreement can be adopted by formal legal mechanisms if required.

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.

Resources

EPA Resolving Environmental Conflicts in Communities Resource Guide

Vermont Judiciary Mediation Information