A “mutual gains” approach based on consensus-building promises to help resolve increasingly contentious land use disputes, according to new practical guide published by the Lincoln Institute of Land Policy.
Political polarization, redevelopment proposals, and tensions over property rights in the wake of intense storms such as Hurricane Sandy have complicated the role of more than 25,000 local and regional governments, say Sean Nolon, Ona Ferguson, and Pat Field in Land in Conflict: Managing and Resolving Land Use Disputes.
The techniques outlined in the book build on many of the principles of conflict resolution and negotiation in the landmark book Getting to Yes, tailored to assist planners and planning board members at the local level manage the increasingly contentious development process.
“The planner’s job has never been easy,” said Armando Carbonell, senior fellow and chair of the Department of Planning and Urban Form at the Lincoln Institute. “Beginning with a focus on issues where there is not disagreement, this approach holds out hope for better managing the stresses and strains.”
Bruce Babbitt, recalling one of his first experiences as Interior Secretary grappling with the land use implications of adding a California songbird to the Endangered Species Act, writes in the Foreword that “land use issues, large and small alike, almost always have implications for the broader community, which should lead to more frequent use of the techniques that are the subject of this book.”
“For all the talk about broad-based, national planning and environmental goals, most decisions about land use are made at the local level, which means that local planning officials often have more impact on the physical form of this country than anyone else. Land in Conflict is an invaluable guide for planners, citizens, architects, and anyone involved in the process of land use. It offers the best hope for bringing reason to the painful battles that land use decisions have too often become,” said Paul Goldberger, architecture critic and contributing editor at Vanity Fair.
Diverse stakeholders voice their interests and concerns in the combative context of land use decisions. Every day, public officials must make challenging decisions involving land that impact open space, economic development, transportation, and many other issues. At stake are the built environment, quality of life, and the economy for decades to come. How officials make these decisions influences the way community members interact with one another and whether they work as a cohesive or a divided group.
Over the last one hundred years of land use management by local governments, a common four-stage approval process for decision making has developed: applicants are required to file proposals with a local board or department; these plans are reviewed and sometimes modified; the plans often come before a body such as the planning board or zoning board of appeals and the board asks questions, may request further modifications, and hears public comment; and then the public body either makes a decision or refers its recommendation to a final decision-making body such as a town or city council.
This standard required process works well for the majority of noncontroversial land use decisions, which can be made quickly by most land use boards using this process. But in more complex decisions, communities often become embroiled in battles that tear at the civic fabric, pit neighbor against neighbor, demonize the applicant, and wear down local officials. Volunteer board members, neighbors, and applicants are often disheartened by what seems to be an insufficient process for solving these difficult, heated land use disputes.
In over a decade of research supported by the Lincoln Institute of Land Policy and with years of professional experience, the authors, all associated with the Consensus Building Institute, have found that the “mutual gains” approach is a better way to manage the most challenging situations. This approach is guided by core principles, follows a set of clear action steps, and is useful at different stages of land use decision making. It is different from, though not incompatible with, the required land use procedures. The mutual gains approach:
· is based on all stakeholder interests as well as the necessary technical information;
· involves stakeholders along with appointed and elected decision makers;
· generates information relevant and salient to stakeholders such as abutters, community leaders, and others;
· requires strong community and public engagement skills along with strong technical planning skills; and
· engages the public above and beyond sharing information and views.
The mutual gains approach to preventing and resolving land use disputes is not a single process or technique. It draws from the fields of negotiation, consensus building, collaborative problem solving, alternative dispute resolution, public participation, and public administration. The result is a more public, collaborative process designed to tease out the range of interests and criteria, compare various alternatives, and determine which of those alternatives meet the most interests. Case studies from across the United States and Canada illustrate the principles and steps in the mutual gains approach.
More praise for Land in Conflict:
- --Mark R. Tercek, President and CEO, The Nature Conservancy: This book is a great primer for any stakeholder involved in a land use dispute. It demonstrates that even in the most complex cases it is possible to achieve outcomes that benefit all parties. Whether you are a private citizen concerned about development in your community or a representative of a state, the approach in this volume will satisfy your needs.
- --Peter R. Stein, Managing Director, The Lyme Timber Company LP: The authors provide a wealth of detailed insights into the mechanisms that allow multiple parties to successfully engage in the land use decision-making process. Through case studies, the authors present resolutions to complex land use debates that utilize various negotiation, mediation, and stakeholder processes. By applying the techniques in this book, decision makers can enhance the conventional and linear process by including a range of participants with credible community concerns, which will yield timely and economical land use decisions.
- --Patricia E. Salkin, Dean and Professor of Law, Touro College: Land in Conflict provides a concise, practical, and convincing framework that will help communities and developers arrive at better land use results. This volume is a must-have for any land use or municipal attorney who is interested in helping clients achieve effective and efficient results in the land development process.
About the Authors: Sean Nolon is associate professor of law and the director of the Dispute Resolution Program at Vermont Law School. He has extensive experience in consensus building, mediation, and litigation in commercial, land use, and environmental law.Ona Ferguson is senior associate at Consensus Building Institute (CBI), where she designs and facilitates meetings on environmental and public policy, and on organizational and strategic planning. Patrick Field is managing director at CBI, associate director of the MIT-Harvard Public Disputes Program, and senior fellow at the University of Montana Center for Natural Resources and Environmental Policy.