Mediating land use disputes in the United States: pros and cons.

Abstract

Land use planning both causes and sometimes helps to resolve land use disputes. While land use planning in North America initially focused on finding the most technically efficient method of segregating land uses, its emphasis has shifted toward a concern for fairness in the allocation of public resources. This shift has led to an increased demand for stakeholder participation in decision making, thereby stimulating some conflicts but also offering a basis for the effective resolution of land use disputes. Consensus building, or mediation, as a method of resolving land use disputes offers a strategy for balancing technical considerations, broader political concerns about fairness, and conflicting stakeholder interests.

Based on the results of a study of efforts to mediate land use disputes in 100 communities around the United States, this article reviews the historical context in which land use decisions have traditionally been made as well as the relevant literature produced by supporters and opponents of consensus building techniques like mediation. It is hoped that this proves instructive to those who have to make decisions about how best to handle land use disputes.

Resume

La planification en matiere d'utilisation des torres peut provoquer des litiges mais peut aussi parfois aider a les resoudre. Alors que la planification en matiere d'utilisation des terres en Amerique du Nord etait au depart axee sur la decouverte des methodes les plus efficaces techniquement pour distinguer les differentes utilisations du territoire, la priorite est maintenant une certaine preoccupation envers l'equite en matiere d'allocation des ressources publiques. Ce deplacement a provoque une exigence de participation accrue des intervenants a la prise de decisions, entrainant ainsi certains differends mais offrant egalement une base pour une resolution efficace des litiges en matiere d'utilisation des terres. La recherche de consensus, ou mediation, comme methode de resolution des litiges sur l'utilisation des terres offre une strategie permettant d'equilibrer les considerations techniques, les preoccupations politiques plus larges au sujet de l'equite, et les interets conflictuels des intervenants.

En se fondant sur les resultats d'une etude sur les efforts de mediation des litiges en matiere d'utilisation des terres dans 100 coilectivites des Etats-Unis, les auteurs de l'article examinent le contexte historique dans lequel les decisions en matiere d'utilisation des terres etaient prises par le passe, de meme que la documentation pertinente redigee tant par les adeptes que par les opposants des techniques de creation de consensus telle que la mediation, lis esperent que cet examen se revelera utile pour ceux qui doivent prendre des decisions sur la meilleure maniere de resoudre les litiges en matiere d'utilisation des terres.

Key Words:

Land use planning, land use disputes, mediation, consensus building, dispute resolution

Introduction: Land Use Planning and Dispute Resolution

In the face of conflict, local officials, especially land use planners, struggle to find ways of balancing the goals of environmental protection and economic development while also protecting private property rights. In the United States, many such disputes lead to litigation, but the courts are not interested in reconciling underlying disagreements, and judicially mandated outcomes usually leave someone dissatisfied. Members of the general public become frustrated, too, because they feel they have no role in determining how local land resources should be allocated when the courts are involved. Furthermore, the cost of land use disputes, especially those that end up in court, can be staggering. AII of these concerns have fueled the search for better methods of resolving land use conflicts.

Historical Background

Since the beginning of the twentieth century, the field of urban and regional planning has undergone several key transformations. Most have revolved around redefining who determines the goals that master plans are designed to achieve. While master plans were popular for many years, they failed to take account of important socioeconomic, environmental, and political concerns. They did not address issues of affordability, pollution prevention, or the implied unfairness of distributional "gains and losses" that kept certain groups in poverty. They also presented the city as it was meant to look in an idealized form in the future, without indicating how this ideal state would be achieved (Branch 1983: 28). Since the late 1950s, planners have become less concerned with the efficient allocation of land from a purely technical perspective, and more concerned about fairness and the ways that land use allocations impact the quality of life for various groups. These concerns are linked directly to the demand for increased public participation in land use decision making.

Technocratic and Advocacy Planning Models

Technocratic planning is dominated by concerns about economic efficiency in the use of space. It specifies well-organized, centrally managed solutions to urban land use problems aimed at providing the greatest benefits to the population and ensuring overall economic vitality. Planners are presumed to have the education and experience needed to find solutions to urban problems and to be free from any corrupting political influences that might otherwise bias their judgment. This model also assumes that planning agencies have the autonomy to set policy, of at least make recommendations to the elected city council, as well as a role in implementing them.

The advocacy model of plannin9 emer9ed in reaction to the failures of the technocratic model's approach to urban renewal during the late 1950s and early 1960s. Advocacy planners aim to redistribute resources more fairly, increase social equity, and improve quality of life for minority groups and the poor (Burchell and Stemlieb1978: 69). They attempt to reshape the political processes through which land use decisions are made, by such efforts as blocking urban renewal and working to protect poor and working class neighborhoods.

The concept of advocacy planning hinges on the notion that, as in a civil lawsuit, there are at least two sides using expert advisors to pursue their conflicting points of view. Supporters of advocacy planning assert that under the technocratic model plans that seem to be directed toward the "common good" are, in reality, meant to serve only those in power. Accordingly, advocacy planners seek to provide the expertise necessary to empower the interest groups to represent themselves at each step in a local decision-making process.

Whereas a few insiders make technocratic planning decisions, advocacy planners believe in open forums where planners and community groups can confront traditionally powerful interests. This planning model was strongest in the United States during the War on Poverty of the 1960s, when the disparities created by urban sprawl began receiving greater attention from the federal government. While addressing many of the weaknesses of the technocratic model, advocacy planning has its own drawbacks. It raises questions about the ability of (mostly white) advocacy planners to identify with the real needs of (mostly minority) groups they seek to represent; many of the planners are more interested in short-term improvements than long-term solutions to persistent land use problems. Furthermore, advocacy planners actually work with only a small fraction of their target constituency, resulting in plans that do not always represent neighborhood-wide views. Project plans based on the advocacy model have not always made the best possible use of technical information and analysis to ensure their effectiveness. As a result, advocacy planning often boils down to nothing more than a contest among interest groups to determine whose preferences will prevail (Susskind and Ozawa 1984: 9).

Stakeholders such as public agencies, private developers, issue-oriented advocacy groups, and community residents continue to disagree on whether technocratic efficiency of political advocacy should be given priority. In addition, all of these voices now have even greater opportunities to be heard through public participation requirements, open meeting laws, and related right-to-know requirements. Few people would argue that increased participation has been detrimental to the public good.

Confronted by escalating conflicts whenever land use development of resource allocation decisions must be made, many planners are turning to a third planning model based on consensus building and mediation. This "mediation model" offers a strategy for resolving land use disputes and channeling public involvement in more productive ways.

Emergence of the Mediation Model

Whereas technical planners tend to emphasize efficiency and advocacy planners seek to represent the political interests of a particular group, planners working as mediators seek to resolve disagreements and build consensus. This process usually requires the participation of spokespeople for each stakeholder group, the involvement of a professional facilitator or mediator, and the negotiation of informal yet written agreements that can be linked with, or incorporated into, more formal governmental processes.

The Mediation Model