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<br />
<br />AME~ICAN ....
<br />PLANNING
<br />ASSOCIATION
<br />
<br />E II I I I I II I I I E I
<br />
<br />Ising Mediation
<br />o Resolve
<br />
<br />and-Use Dispufes
<br />
<br />y Mark $. Dennison
<br />
<br />litigation. Without question, the courts pla)' a vital role in
<br />resoMng land-use disputes, but judicial intervention is not
<br />always necessan' or even warranted. Local governments and
<br />private landowners alike can benefit from working out their
<br />differences with alternative dispute resolution techniques, such
<br />as mediation.
<br />
<br />qhen land-use disputes arise between private landowners and
<br />ocal zoning authorities, litigation should always be viewed as the
<br />asr resort to resolving the conflict. Whenever possible, alterna-
<br />:ire dispute resolution techniques should be pursued first.
<br />Litigation is costly and time-consuming for both sides and does
<br />little to foster good communiD, relations. Just ask the California
<br />Coastal Commission about all the taxpayer dollars spent
<br />defending the Notlans' taking challenge all the way to the U.S.
<br />Supreme Court because the commission refused to budge on a
<br />building permit condition that was questionable at best. [Nollan
<br />v. California Coastal Commission, 483 U.S. 825 (1987).] Look at
<br /> all the time and money spent by the Notlans to show that the
<br /> commission was unreasonable.
<br /> Further, imagine the time and money shelled
<br />
<br />The Land-Use Mediation Process
<br />Too man), land-use disputes wind up in court. Although
<br />mediation cannot resolve all disputes, it should at least be
<br />considered. For years, mediation and arbitration have been used
<br />successfully to resolve a wide varieD' of conflicts, such as
<br />matrimonial, commercial, and labor law disputes. On}), recently
<br />has it been recognized as an alternative in the land-use and
<br />environmental context.
<br /> Land-use mediation is a voluntary, nonbinding process in
<br /> which the local land-use/zoning
<br /> authority and the private
<br /> '/19 O~/~(-OPflg' l-HE landowner(s) rely on a
<br /> third party's expertise
<br />CONFUSION AT THIS POINT to guide them to a
<br />
<br />e OUt by both sides in £irst English 'f' p,~r3t:'OS~' 'FO Ef'/'A~£15~I4 mutually satisfactory
<br /> £vangelical Lutheran Church of ........ -~ 'A~ ,,1~,...~ resolution of their
<br /> ndale v Counn, o£ AN O~/(.g (db L] VIN& land use dis u
<br />
<br /> ~ ~ <"~'~.~, ) the mediator helpspthe
<br /> /'~ { ~"'~"-'~, [ ~ ~ / parties decide for themselves
<br /> k,._j k _ /~'~'L_.~j'~:~_' ] c5~r ~ whether they can settle the dispute and on
<br /> I '"Y OX, /"ED \-r4:_~____~~ ~ ~(,~//1_ %N. what terms.
<br /> ~ ~ ~ / ~W/J ~ Mediation simply means negotiating a
<br /> I, _A¢---"l \V/ solution w th the asslst=ce of attained
<br /> ,,,.,jO/ ~ ~ _._' x~r \ . moderator who is impartial and lacks
<br /> - ~~ I ~ decision-making powers, lA very readable and
<br /> ~ ~ f/ useful book on the art of ,e,g, otiation is Getting
<br /> · ~ \ ~ i/ ro Yes bv Roger Fisher and William Ury
<br /> / ~ (Penguin 1981).] Professional mediators have
<br />
<br />482 U.S. 324 (1987), extensive training for intervention and approach the
<br />
<br />which lasted 12 years. In the end, the
<br />count), won the lawsuit, but were all those years in
<br />court, the mounting legal fees, and the expenditure of human
<br />resources worth the taste of victory?
<br /> Few people followed the final resolution of that case. The U.S.
<br />Supreme Court had &dared, significantly, that even temporary
<br />regulatory takings require just compensation. But the decision was
<br />remanded to the California Court of Appeal, which two years later
<br />concluded that the interim zoning ordinance at issue was reasonable
<br />in scope, purpose, and duration and therefore did not amount to a
<br />temporan/regulatory raking of private property. [210 Cabhpp.3d
<br />893, 258 Cal. Rptr. 893 (1989).}
<br /> Although land-use and zoning disputes seldom reach the
<br />nation's highest court, First English and Nollan stand as high-
<br />profile examples of the time and expense associated with such
<br />
<br />dispute with a formal strategy designed to break
<br />impasses and reach a resolution. Professional mediators
<br />are listed in the telephone yellow pages under mediation or ma),
<br />be found in the Dispute Resolution Program Director), published
<br />by the American Bar Association. When the parties agree to try
<br />mediation, it is important to select a mediator who can make
<br />both sides feel comfortable and who has experience in resolving
<br />land-use disputes.
<br /> A major reason for the success of mediation is its open,
<br />direct, no-nonsense approach to getting the parties together to
<br />air their grievances and stake out their positions. The mediation
<br />session usually is conducted at an informal location, such as a
<br />law office or mediation firm. The parties, their lawyers, and
<br />anyone else affected by the dispute can and should attend. The
<br />process begins with a joint meeting in which each side explains
<br />
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