Further Reading

Connecticut Land Use Mediation Law

In 2001, the Connecticut General Assembly advanced the cause of alternative dispute resolution with the passage of Public Act No. 01-47 entitled “An Act Concerning the Mediation of Appeals of Decisions of Planning and Zoning Commissions” (see CGS Section 8-8). This law made it through the general assembly with unanimous approval from the Senate and House of Representatives in one legislative session.

In its original form, the legislation enabled and encouraged the mediation of the appeals of decisions made by municipal planning and zoning commissions and zoning boards of appeal. In 2002, the legislation was amended to include appeals on actions by local inland wetlands agencies.

History
This act was the initiative of William S. Voelker, AICP, a municipal land use planner with nearly 25 years of public service as a planner. Bill is currently the Town Planner in Cheshire, Connecticut. During his career, Bill witnessed the litigation process many times. He believed that a mutual gains alternative would be more constructive, would save finite public resources and would create value for the groups involved. After completing the “Mediation of Land Use Disputes” and “Advanced Mediation of Land Use Disputes” courses offered by CBI and the Lincoln Institute of Land Policy, Bill decided to take action and drafted the act.

Land Use Disputes in Connecticut
Land use cases have consumed many hours of the Connecticut judiciary’s time during the last 20 years. These cases are the second highest total of administrative appeals taken to Connecticut courts, ranging from 300 to nearly 700 appeals each year. In addition to the consumption of judicial resources, the cost of these appeals to the parties requires the expenditure of millions of dollars of public and private capital. These expenditures exceed an estimated two million dollars each year.

Purpose of Legislation: Provide Time for Negotiation
This legislation modified existing procedural due process by enabling mediation to begin following the filing of an appeal of a local land use decision. The law provides that the proceedings of the court for an appeal may be stayed by agreement of the parties upon commencement of a mediation. This provision was considered essential as land use appeals in Connecticut are put on a fast track. Appeals must be filed within 15 days of the public notice of a decision, and a maximum of 30 days are permitted for the preparation of the record. The act’s authors recognized the need to relieve the pressure to proceed with litigation imposed by these speedy due process requirements. The intention of the stay is to calm the parties and enable them to concentrate on resolution and reconciliation.

Purpose of Legislation: Provide Safeguards for Negotiators & Delineate Process
The authors also received comments that the mediation process would be used as a delay tactic by adversarial parties interested in prolonging the duration of an appeal, a tactic that is often used to stifle competition in commercial real estate. In response to these concerns, two provisions were drafted into the legislation: a time period of 180 days to conclude the mediation, and a provision stating that parties may withdraw from the mediation and resume litigation at any time. The initial 180-day time period may be extended for an additional 180 days by mutual agreement of the parties, and the court may grant more time if it is warranted. As an additional safeguard, the law provides that issues brought forth during mediation may not be admissible as evidence, should litigation resume.

Parties can select mediators by mutual agreement and the law also provides that the cost of mediation be distributed equally among the parties. This provision was included to encourage a consistent mutual gains approach to the proceedings.

Approval Process
Public Act 01-47 was brought forth as a Senate bill by the Planning and Development Committee of the Connecticut General Assembly. Considerable effort was made to get the support of various parties that could have an interest in mutual gains resolution of land use conflicts. These included the Connecticut Chapter of the American Planning Association, the Connecticut Bar Association, the Connecticut Conference of Municipalities, the International Council of Shopping Centers, and the Connecticut Developers Council.

The Consensus Building Institute provided supported the development of the act by helping draft the text and consulting throughout the legislative process. CBI Managing Director Patrick Field provided public testimony before the Planning and Development Committee at their public hearing held on February 16, 2001.

Challenges to the Approval Process
The most significant challenge in getting the legislation passed was to tracking the legislation through committee votes and holding the interest of legislative leadership. The Judiciary Committee of the legislature voted on the proposed bill before it made it to the floor of the Senate. At this stage, countless hours were spent on the telephone and at meetings in the corridors of the Legislative Office Building to maintain enthusiasm and be sure that the act wouldn’t be forgotten in process.

It became apparent that the bill was moving forward following its unanimous endorsement by the Judiciary Committee. It came to the floor of the Senate with amendments to repeal CGS Section 8-30g, the state Affordable Housing Appeals Act. There are a number of legislators that did not support Section 8-30g and a group of them attached its repeal as an amendment to the mediation legislation. The amendment was not approved, and the proposed mediation legislation was advanced to the House by unanimous consent of the Senate. Following a brief debate, the legislation was passed by a unanimous vote of the House and signed into law by the Governor.

Results
Use of the mediation process remains sporadic. The culture of litigation is a difficult one to change, especially with the continuation of the fast track due process for land use cases. Since the passage of the act, each of the judicial districts has asked for attorneys to sit as volunteer mediators on land use cases. These attorneys meet with the parties and try to craft settlements, a process that is more extensive than the traditional pretrial conferences with retired judges. There have been some successful outcomes.

Bill Voelker was invited to speak to the Superior Court judges to familiarize them with the process, and he remains encouraged that the collective efforts of those involved will have been worth it. He likes to discuss the legislation in the context of the question that his son John, then 6 years old asked him about the law the night before the public hearing: “Tell me about your law, daddy.” “Well, pal, I am trying to get people who disagree with each other to talk to each other instead of going to court,” Bill responded. After a brief pause, Johnny looked up and said, “Oh, you are trying to get people to listen to each other.” Bill knew right away that his little boy understood it better than he did. Public Act 01-47 stands as a tribute to the art of listening. May we all become better listeners.

For more information, contact Bill Voelker at: 203 271-6670, wvoelker@cheshirect.org.