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federal, state, and locat agencies and environmental interest
<br />groups to resolve any potential conflicts. This process began in
<br />early 1988 with unassisted negotiations bep, veen the various
<br />interested parties and progressed into mediated negotiations. By
<br />March 1990, the parties reached a final agreement on all
<br />outstanding disputed issues. The cooperative mediation
<br />agreement satisfies all of DSL's permit requirements, the federal
<br />requirements, and the interest groups~ needs.
<br /> As a result, when the developer actually applies for the D£L
<br />permit, it likdv will be processed arid approved within the 90-
<br />da)' statutory time limit. Before undertaking the project, the
<br />developer also must prepare a wetlands area resource
<br />management p}an, which must be approved by all parties to the
<br />mediated agreement.
<br /> in stark contrast to the Bolt'S Marsh case, the costs of
<br />mediation were only $3,000, half paid by DSL and half by the
<br />developer. Attorneys' fees, consulting fees, and staff time costs
<br />for the developer were only about $14,000.
<br /> These two cases illuminate thc advantages of mediating land-
<br />use and environmental disputes. A mediator can help to develop
<br />creative ways of addressing the issues. Often, this can result in a
<br />win-win solution for all parties,
<br />
<br />interagency Disputes
<br />Sometimes land-use disputes grow out of interagency turf wars.
<br />Local government offices with overlapping jurisdiction over
<br />zoning and land-use matters, such as the ciD, council, local
<br />planning hoard, zoning commission, architectural review board,
<br />and zoning board of appeals, ma), differ on a particular land-use
<br />proposal. These agencies sometimes spend valuable taxpayer
<br />dollars working our their differences in court. If local
<br />government is truly designed to protect the public welfare, these
<br />agencies are obligated to spend taxpayer dollars prudently. The
<br />benefits of mediation are even more compelling for these
<br />disputes, which often arise when one zoning authority believes
<br />that another has usurped its powers in some way. A
<br />municipality can prevent man}, of these conflicts by clarifying
<br />the function and authority of each office. However, when these
<br />disputes arise, the municipality can resolve them by submitting
<br />the issue to a mediator.
<br />
<br />£ega! Barriers
<br />Sometimes it is not possible to submit a dispute to mediation
<br />because of legal constraints. First, a local governmental
<br />authority must determine whether it is authorized to use
<br />mediation in land-use disputes. The municipal attorney should
<br />know whether the state has a specific statute allowing for land-
<br />use mediation or if the state's zoning enabling act explicitly or
<br />implicitly provides for mediation. If not, the city's home-rule
<br />charter may grant mediation powers.
<br /> Another important legal barrier to consider is the limited
<br />authority of governments to delegate their police power over private
<br />property interests to nonelected decision makers. Clear standards
<br />must accompany such a delegation of authofit),, or it will be
<br />considered improper. Local zoning officials may not delegate their
<br />legislative or law-making authorJr), to a none}ected parr3.'. This issue
<br />is more likely to arise with arbitration than mediation because
<br />mediation does not impose a binding decision on the parties.
<br />Because a mediation agreement is not legally binding, it might not
<br />mn afoul of the delegation doctrine. However, if the local zoning
<br />authorit), commits to some improper zoning action, such as an
<br />illegal spot zoning, the mediation agreement may be challenged as a
<br />bargaining away of the police power.
<br />
<br />Above Ail, Communicate
<br />Sound planning and good communication of ordinance
<br />standards can minimize the potential for disputes between land-
<br />use authorities and private landowners. Good interaction
<br />between municipal attorneys and planning staffcan also resolve
<br />problems in zoning ordinances and ferret out legal pirfalls in
<br />development proposals. Furthermore, early dialogue between
<br />zoning authorities and landowners concerning permit
<br />applications, development proposals, variance applications, and
<br />other land-use issues may avoid the need for either litigation or
<br />mediation. Finally, as long as the municipality has the authority
<br />to decide land-use disputes through mediation, it may make
<br />sense to enact a local land-use mediation ordinance to govern alt
<br />or certain categories of disputes.
<br />
<br />Thumbs Down on
<br />Dade Districts
<br />
<br />District zoning boards were back on the ballot in Dade County,
<br />Florida (see "Decision Day for Dade," October 1992). In a
<br />March 16 referendum, the proposal to split the unincorporated
<br />areas of the county into eight separate districts suffered defeat
<br />by a 2-to-1 margin. After the county board of supervisors chose
<br />not to place the issue on the ballot, neighborhood groups such
<br />as Protect our Communities and Save our Park filed an
<br />initiative petition.
<br /> One of the biggest complaints of supporters was that the
<br />count)., has not effectively controlled growth in unincorporated
<br />areas. In their initiative drive, they received support from 25
<br />groups and collected 98,000 signatures. The Metropolitan Dade
<br />Commission then voted to place the issue on the ballot. Under
<br />the proposal, each of the eight boards woutd be responsible only
<br />for land-use approvals in its "planning and zoning
<br />municipality" (PZM), as well as its PZM's land-use component
<br />of the 11-element county comprehensive plan. The average area
<br />of each board's PZM would have been 82 square miles. The
<br />commission, however, would have retained responsibility for
<br />funding and staffing the PZM boards and the county
<br />comprehensive plan.
<br /> Opposition to the plan came from several directions
<br />including the Latin Builders Association, land-use lawyer Stanley
<br />Price, and the Dade County Planning Department. A lawsuit
<br />filed by the Concerned Citizens of Northeast Dade sought
<br />unsuccessfully to remove the issue from the March ballot.
<br />Builders argued that the boards would add bureaucracy and that
<br />they would have considerable power to decide land uses without
<br />assuming responsibility for sewers and taxes. The lawsuit charged
<br />that the ballot language was unclear and misleading.
<br /> Reginald R. Walters, retired Dade County planning director,
<br />and Gonzalo Sanabria, a member of the Dade County Planning
<br />Advisory Board, also noted that, while the commission would
<br />prepare the comprehensive plan, it would not have authority on
<br />land uses in the new districts. The uncoordinated local compre-
<br />hensive plan could cause a problem with private property
<br />transactions and government decisions. The unincorporated
<br />areas, they argued, would develop land uses in the best interest of
<br />their own communities, which might not be consistent with the
<br />regional and state polio3, plans.
<br /> Since the proposal failed, neighborhood groups'have
<br />refocused their efforts toward presenting their local zoning
<br />concerns to the elected county commissioners. Becky Maroot
<br />
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