- Email: [email protected]
Mediation option included in revisions to Pennsylvania's municipalities planning code
AGEN G E N D A
DA
Mediation Option Included, in Revisions to Pennsylvania's Municipalities Planning Code Wendy Emrich and David Sweet
lVendy Emrich and David Sweet are sta][ members of t h e B r a n d y w i n e Conservancy's Environmental Management Center, and developed the materials described in this article. As more material is written and more experience is gained in environmental conflict resolution, site-specific land use disputes are mentioned repeatedly as (potentially) appropriate for mediation. Furthermore, there is general agreement that the mediation process is more "maiaageable" and has a greater chance of success if the dispute and the parties are easily defined and limited in scope. Considering these factors together, it appears that local land use disputes would be logical candidates for mediation. Yet, for various reasons, very few of these purely local disputes have been mediated. With this in mind, the staff at the Brandywine Conservancy's Environmental Management Center (Chadds Ford, Pennsylvania) seized an opportunity last year to propose adding a "mediation option" to the Pennsylvania Municipalities Planning Code (the state enabling statute for zoning, subdivision, and other local development controls). In late 1981, a Task Force was appointed b~, Pennsylvania's Local Government Commission to review the entire Code and r e c o m m e n d r e v i s i o n s . We a t the
218
EIA REVIEW
4/2
Environmental Management Center felt it was time to seek official recognition of land use mediation as a voluntary tool available to disputing parties at the local level. After four drafts and three presentations to the Task Force, we finally saw the "mediation option" adopted as one of the Task Force recommendations. T h e Local Government Commission subsequently agreed to include the mediation provision in its final package of revisions being sent to the Legislature in . bill form in fall, 1983. 9 The particulars of the bill's mediation sections [Section 107 (a) (14) and Secdon 908] spell out an option that may provide a useful model for those working on the adoption of similar legislation in other states. The supportive materials we developed include a set of questions and answers that may be adapted to explain mediation to any new audience. The first pertinent section of the bill defines mediation. The second outlines the details of the o p d o n being proposed. The language specifies that mediation would be a supplement, not a replacement for standard procedures, and that mediation would be "wholly voluntary." T h e bill further calls upon each municipality offering the mediation o p d o n to assure that the m e d i a t i n g parties develop agreements covering seven fundamental issues: 1. Funding mediation; 2. Selecting a mediator who, at a minimum, shall have a working knowledge of municipal zoning and subdivision procedures and demonstrated skills in mediation; 3. Completing mediation, including time limits for such completion; 4. Suspending time limits otherwise authorized in this Act, provided there is written consent by the mediating pardes, and by an applicant or municipal decisionmaking body if either is not a party to the mediation; 5. I d e n t i f y i n g a n y a d d i t i o n a l important pardes and affording them the opportunity to participate; Environmental Impact Assessment Review. V. 4, N. 2
0195-9225/83/0600-021853.00/0 r
Plenum Publishing Corporation
AGEND 6. S u b j e c t to l e g a l r e s t r a i n t s , determining whether some or all of the mediation sessions shall be open or closed to the public; and 7. Assuring that mediated solutions are in writing and signed by the parties, and become subject to review and approval by the appropriate decision-making body p u r s u a n t to the a u t h o r i z e d procedures set forth in the other sections of this Act. The language of the bill essentially puts municipalities and others on notice that mediation is a voluntary option open to them for resolving local land use disputes. Not a replacement for current formal procedures, it offers a possible way of finding better solutions to these disputes, conceivably within a shorter time period. T h e language does not attempt to tell municipalities exactly how mediation must be conducted; it does lay out items that must be addressed before mediation has much chance of success, either procedurally or substantively. It says what must be addressed, not how, and thereby allows responses to differ not only by municipality but also, as written, on a case-by-case basis depending on decisions reached by the mediating parties and mediator. T e c h n i c a l l y s p e a k i n g , there is nothing now in the Planning Code that forbids mediation. Furthermore, critics might wonder if parties are being e n c o u r a g e d to " n e g o t i a t e a w a y " important regulations. Anticipating these potential concerns, we prepared a briefing sheet called "I0 Questions and Answers on the MPC Mediation Option." The issues raised parallel the problems and queries any thoughtful audience asked to consider the adoption of such a provision might raise. They are offered here to suggest how such material might be presented. I . Q : Why do we need a mediation provision in the Municipalities Planning Code (MPC) i] there is nothing stopping municipalities from using it now -- especially i] it will be used only in a small number ol cases? A: As with transferable development rights (TDR) and other innovative
but not well-known procedures, municipalities are unlikely to give them a try unless they are officially recognized and sanctioned in the enabling code. By their very nature, most new and somewhat unorthodox alternatives will be appropriate only in select circumstances; however, in these circumstances they may represent the best solution. Also, as time passes, such alternatives may gain wider . a c c e p t a n c e a n d be c o n s i d e r e d 9 appropriate in a greater number of cases. 2. Q : H o w can y o u " n e g o t i a t e " regulations? A: As many people point out, it is done now all the time. Most local zoning and subdivision ordinances have sections that allow the decisionm a k i n g body a good deal of discretion; many "standards" and "conditions" are not numerical (or black and white) in nature, but rather judgmental and flexible. Many such regulations purposely are written to allow for this kind of interpretation on a case-by-case basis, within a framework of general standards. 3. Q: So why do we need mediation il local governments and developers informally negotiate already? A: Informal negotiations often are all that is needed to work out a just and effective settlement. T h e r e are s i t u a t i o n s , however, where an 9 officially sanctioned mediation process might be preferable. For one, the level of distrust between the parties may be such that a third.party mediator is necessary to facilitate negotiations. For another, many municipalities shy away from "back room" settlements with a developer, particularly when citizen groups are actively involved. A recognized mediation procedure not only would "legitimize" negotiations, but most likely would incorporate citizen groups into the settlement process, w h i c h s h o u l d m i n i m i z e the likelihood of legal challenges at a later date. EIA REVIEW
4/2
219
A G E N D A
AGENDA G
4 Q: Will mediation bypass the MPC's
procedures /or the zoning hearing board (ZHB) or local governing body?
E N
D A
A: No, mediation would not replace MPC procedures once they had been f o r m a l l y initiated. H o p e f u l l y , however, mediation would shorten and simplify the required proceedings, since the detailed work of resolving a particular case would be handled in mediation. However, the MPC process still would be completed, allowing the "official" decision maker (and interested public) to review and sanction the mediated settlement. 5. Q: Won't the ZHB decision or court
settlement get the same results as mediation? A: Not usually. Court and ZHB decisions decide "in favor" of one party and "against" the other(s); a mediated settlement incorporates the essential objectives of all the parties. Also, whereas court and ZHB decisions sometimes turn on technical and procedural matters, a mediated solution represents the parties' own "best shot" at an i n v e n t i v e , c o m p r e h e n s i v e (and legally implementable) settlement of the key issues. 6. Q: Where else has this been done? A: Mediation of environmental and land use disputes has been growing over the past decade. Several of the "environmental mediation" projects across the country specialize in local' land use disputes, and several states a n d l o c a l i t i e s have i n c l u d e d m e d i a t i o n in l e g i s l a t i o n a n d regulations pertaining to environmental concerns such as hazardous waste siting, wetland permitting and developments o f regional impact. Examples of local land use and development disputes that have been mediated are described in a number of journal and magazine articles, as well as some books on the subject. T o daCe, however, no state that we know of has a mediation provision in its municipal planning code per se. 220
EIA R E V I E W
4/2
7. Q: How is mediation diJ/erent /tom
arbitration? A: In arbitration, the arbitrator "takes evidence" from the disputing parties and makes a decision. In mediation, the parties themselves negotiate a s e t t l e m e n t t h a t is m u t u a l l y acceptable; the mediator facilitates the process. 8. Q: Where would municipalities find
mediators? A: There are several possibilities. We have contacted the A m e r i c a n ~t Arbitration Association and three representative c o m m u n i t y mediation programs (in Pittsburgh, and Lancaster and Delaware Counties*), and all expressed willingness to make their services available. Mediators from these programs could be educated in the local d e v e l o p m e n t process, a n d / o r m u n i c i p a l people could take mediation training offered by the programs. (*Note: There are five or s i x "community" mediation programs in Pennsylvania state that we know about; there may be others. More are created each year.) 9. Q: What role do attorneys play in the
mediation process? A: This varies. Sometimes a party's attorney will attend mediation sessions, or even act as the negotiator. Alternatively, the attorney can be consulted between mediation sessions to discuss any legal implications of potential points of settlement; this reserves a more direct role for the party as "policy-maker" and cuts down on legal expenses. However it is handled, the attorney's role remains essential. The tenth question asked for an example to show how mediation would work in the "real world." We developed a hypothetical case that was brief, yet brought the concept alive and represented the kind of situation that we felt would be most suitable for mediation. Mall Developers, Inc. files a curative amendment w i t h t h e B o a r d of Supervisors of Pennsylvania T o w n s h i p as authorized by the Municipalities
AGENDA Planning Code. T h e developer proposes that his vacant 50-acre tract be rezoned from residential to commercial in order to build a large s h o p p i n g center, and alleges the ordinance's invalidity for failing to provide sufficient commercially-zoned ground. While the T o w n s h i p is inclined to turn down the curative amendment, the Supervisors privately realize that their case has some weak points. Also,they are not entirely opposed to a shopping center on that site if the developers would just "give" a little more on such things as site improvements, intensity of use, etc. Rightly or wrongly, Malls, Inc. has a poor reputation and the T o w n s h i p does not trust them. Further, a local citizens group is opposed to any commercial use on the site. It is clear that the developer, having chosen the curative route, intends to "stay the course" and will appeal a turn-down by the Board. The Township recently has instituted a "mediation option" permitted under Sect. 908 of the MPC, and decides to approach the developer and citizens g r o u p with the suggestion to mediate. All parties agree; no one,. i n c l u d i n g the citizens g r o u p a n d developer, is sure of what the court's decision will be and would prefer to come up with a j o i n t solution rather than risk losing. T h e developer would like to go ahead with the project in some version as soon as possible, and also sees mediation as an o p p o r t u n i t y to b u i l d g o o d relationships with the community for future projects. T h e time and expense of protracted appeals appeals to no one (even the citizens group, with its limited budget). A mediator is selected and is funded jointly by all the parties according to a formula mutually agreed upon. In the first session, the parties (Township, developer, and citizens group) work out procedures for m a i n t a i n i n g confidentiality, dealing with the local press, and for assuring implementation of a n y agreements. In subsequent session(s) the parties build a j o i n t agreement, featuring a modified curative amendment that outlines some inventive standards, criteria, a n d c o n d i t i o n s , i n c l u d i n g m i t i g a t i o n , m e a s u r e s and developer commitments, under which Malls, Inc.
may build a s h o p p i n g center. T h e company files a revised proposal with the Board of Supervisors. T h e required MPC procedures again are followed, but are greatly abbreviated since the Board is able to approve the new proposal and amend the zoning ordinance with a m i n i m u m of discussion. We at the Environmental Management Center have been the first to emphasize that the mediation provision will be no panacea. It will be used in a select number of cases where all the parties volgntarily agree that it is in their best interest to sit down and negotiate. T h e process shows most promise in disputes where uncertainty of outcome and potential for delay (and therefore increased costs) weigh heavily, and where MPC procedures leave room for discretion and m a n e u v e r a b i l i t y , e.g. c h a l l e n g e to ordinance validity and rezoning requests. Recognizing, however, that mediation could be useful in any number of situations, depending on the circumstances, the Task Force agreed that the o p t i o n s h o u l d be r e f e r e n c e d throughout the Code as appropriate (under suhdivision approval, zoning ordinance amendments, etc.). It is hard to know what lies ahead. T h e Legislature may embrace the mediation option as motherhood and apple pie and a way to relieve the court system, or it may see it as a confusing and unwelcome addition to existing MPC procedures. T h e course chosen by the Legislature largely depends on whether the backers of mediation can make a cogent and compelling case. If the mediation option is enacted, Pennsylvania would be the first state to include such a provision in its local planning enabling statute. We feel it is worth the effort. For
more
information
contact:
Wendy Emrich Environmental Management Center Brandywine Conservancy P.O. Box 141 Chadds Ford, PA 19317 (215) 388-7601
EIA REVIEW
4/2
221
G E N D A
DA
Mediation Option Included, in Revisions to Pennsylvania's Municipalities Planning Code Wendy Emrich and David Sweet
lVendy Emrich and David Sweet are sta][ members of t h e B r a n d y w i n e Conservancy's Environmental Management Center, and developed the materials described in this article. As more material is written and more experience is gained in environmental conflict resolution, site-specific land use disputes are mentioned repeatedly as (potentially) appropriate for mediation. Furthermore, there is general agreement that the mediation process is more "maiaageable" and has a greater chance of success if the dispute and the parties are easily defined and limited in scope. Considering these factors together, it appears that local land use disputes would be logical candidates for mediation. Yet, for various reasons, very few of these purely local disputes have been mediated. With this in mind, the staff at the Brandywine Conservancy's Environmental Management Center (Chadds Ford, Pennsylvania) seized an opportunity last year to propose adding a "mediation option" to the Pennsylvania Municipalities Planning Code (the state enabling statute for zoning, subdivision, and other local development controls). In late 1981, a Task Force was appointed b~, Pennsylvania's Local Government Commission to review the entire Code and r e c o m m e n d r e v i s i o n s . We a t the
218
EIA REVIEW
4/2
Environmental Management Center felt it was time to seek official recognition of land use mediation as a voluntary tool available to disputing parties at the local level. After four drafts and three presentations to the Task Force, we finally saw the "mediation option" adopted as one of the Task Force recommendations. T h e Local Government Commission subsequently agreed to include the mediation provision in its final package of revisions being sent to the Legislature in . bill form in fall, 1983. 9 The particulars of the bill's mediation sections [Section 107 (a) (14) and Secdon 908] spell out an option that may provide a useful model for those working on the adoption of similar legislation in other states. The supportive materials we developed include a set of questions and answers that may be adapted to explain mediation to any new audience. The first pertinent section of the bill defines mediation. The second outlines the details of the o p d o n being proposed. The language specifies that mediation would be a supplement, not a replacement for standard procedures, and that mediation would be "wholly voluntary." T h e bill further calls upon each municipality offering the mediation o p d o n to assure that the m e d i a t i n g parties develop agreements covering seven fundamental issues: 1. Funding mediation; 2. Selecting a mediator who, at a minimum, shall have a working knowledge of municipal zoning and subdivision procedures and demonstrated skills in mediation; 3. Completing mediation, including time limits for such completion; 4. Suspending time limits otherwise authorized in this Act, provided there is written consent by the mediating pardes, and by an applicant or municipal decisionmaking body if either is not a party to the mediation; 5. I d e n t i f y i n g a n y a d d i t i o n a l important pardes and affording them the opportunity to participate; Environmental Impact Assessment Review. V. 4, N. 2
0195-9225/83/0600-021853.00/0 r
Plenum Publishing Corporation
AGEND 6. S u b j e c t to l e g a l r e s t r a i n t s , determining whether some or all of the mediation sessions shall be open or closed to the public; and 7. Assuring that mediated solutions are in writing and signed by the parties, and become subject to review and approval by the appropriate decision-making body p u r s u a n t to the a u t h o r i z e d procedures set forth in the other sections of this Act. The language of the bill essentially puts municipalities and others on notice that mediation is a voluntary option open to them for resolving local land use disputes. Not a replacement for current formal procedures, it offers a possible way of finding better solutions to these disputes, conceivably within a shorter time period. T h e language does not attempt to tell municipalities exactly how mediation must be conducted; it does lay out items that must be addressed before mediation has much chance of success, either procedurally or substantively. It says what must be addressed, not how, and thereby allows responses to differ not only by municipality but also, as written, on a case-by-case basis depending on decisions reached by the mediating parties and mediator. T e c h n i c a l l y s p e a k i n g , there is nothing now in the Planning Code that forbids mediation. Furthermore, critics might wonder if parties are being e n c o u r a g e d to " n e g o t i a t e a w a y " important regulations. Anticipating these potential concerns, we prepared a briefing sheet called "I0 Questions and Answers on the MPC Mediation Option." The issues raised parallel the problems and queries any thoughtful audience asked to consider the adoption of such a provision might raise. They are offered here to suggest how such material might be presented. I . Q : Why do we need a mediation provision in the Municipalities Planning Code (MPC) i] there is nothing stopping municipalities from using it now -- especially i] it will be used only in a small number ol cases? A: As with transferable development rights (TDR) and other innovative
but not well-known procedures, municipalities are unlikely to give them a try unless they are officially recognized and sanctioned in the enabling code. By their very nature, most new and somewhat unorthodox alternatives will be appropriate only in select circumstances; however, in these circumstances they may represent the best solution. Also, as time passes, such alternatives may gain wider . a c c e p t a n c e a n d be c o n s i d e r e d 9 appropriate in a greater number of cases. 2. Q : H o w can y o u " n e g o t i a t e " regulations? A: As many people point out, it is done now all the time. Most local zoning and subdivision ordinances have sections that allow the decisionm a k i n g body a good deal of discretion; many "standards" and "conditions" are not numerical (or black and white) in nature, but rather judgmental and flexible. Many such regulations purposely are written to allow for this kind of interpretation on a case-by-case basis, within a framework of general standards. 3. Q: So why do we need mediation il local governments and developers informally negotiate already? A: Informal negotiations often are all that is needed to work out a just and effective settlement. T h e r e are s i t u a t i o n s , however, where an 9 officially sanctioned mediation process might be preferable. For one, the level of distrust between the parties may be such that a third.party mediator is necessary to facilitate negotiations. For another, many municipalities shy away from "back room" settlements with a developer, particularly when citizen groups are actively involved. A recognized mediation procedure not only would "legitimize" negotiations, but most likely would incorporate citizen groups into the settlement process, w h i c h s h o u l d m i n i m i z e the likelihood of legal challenges at a later date. EIA REVIEW
4/2
219
A G E N D A
AGENDA G
4 Q: Will mediation bypass the MPC's
procedures /or the zoning hearing board (ZHB) or local governing body?
E N
D A
A: No, mediation would not replace MPC procedures once they had been f o r m a l l y initiated. H o p e f u l l y , however, mediation would shorten and simplify the required proceedings, since the detailed work of resolving a particular case would be handled in mediation. However, the MPC process still would be completed, allowing the "official" decision maker (and interested public) to review and sanction the mediated settlement. 5. Q: Won't the ZHB decision or court
settlement get the same results as mediation? A: Not usually. Court and ZHB decisions decide "in favor" of one party and "against" the other(s); a mediated settlement incorporates the essential objectives of all the parties. Also, whereas court and ZHB decisions sometimes turn on technical and procedural matters, a mediated solution represents the parties' own "best shot" at an i n v e n t i v e , c o m p r e h e n s i v e (and legally implementable) settlement of the key issues. 6. Q: Where else has this been done? A: Mediation of environmental and land use disputes has been growing over the past decade. Several of the "environmental mediation" projects across the country specialize in local' land use disputes, and several states a n d l o c a l i t i e s have i n c l u d e d m e d i a t i o n in l e g i s l a t i o n a n d regulations pertaining to environmental concerns such as hazardous waste siting, wetland permitting and developments o f regional impact. Examples of local land use and development disputes that have been mediated are described in a number of journal and magazine articles, as well as some books on the subject. T o daCe, however, no state that we know of has a mediation provision in its municipal planning code per se. 220
EIA R E V I E W
4/2
7. Q: How is mediation diJ/erent /tom
arbitration? A: In arbitration, the arbitrator "takes evidence" from the disputing parties and makes a decision. In mediation, the parties themselves negotiate a s e t t l e m e n t t h a t is m u t u a l l y acceptable; the mediator facilitates the process. 8. Q: Where would municipalities find
mediators? A: There are several possibilities. We have contacted the A m e r i c a n ~t Arbitration Association and three representative c o m m u n i t y mediation programs (in Pittsburgh, and Lancaster and Delaware Counties*), and all expressed willingness to make their services available. Mediators from these programs could be educated in the local d e v e l o p m e n t process, a n d / o r m u n i c i p a l people could take mediation training offered by the programs. (*Note: There are five or s i x "community" mediation programs in Pennsylvania state that we know about; there may be others. More are created each year.) 9. Q: What role do attorneys play in the
mediation process? A: This varies. Sometimes a party's attorney will attend mediation sessions, or even act as the negotiator. Alternatively, the attorney can be consulted between mediation sessions to discuss any legal implications of potential points of settlement; this reserves a more direct role for the party as "policy-maker" and cuts down on legal expenses. However it is handled, the attorney's role remains essential. The tenth question asked for an example to show how mediation would work in the "real world." We developed a hypothetical case that was brief, yet brought the concept alive and represented the kind of situation that we felt would be most suitable for mediation. Mall Developers, Inc. files a curative amendment w i t h t h e B o a r d of Supervisors of Pennsylvania T o w n s h i p as authorized by the Municipalities
AGENDA Planning Code. T h e developer proposes that his vacant 50-acre tract be rezoned from residential to commercial in order to build a large s h o p p i n g center, and alleges the ordinance's invalidity for failing to provide sufficient commercially-zoned ground. While the T o w n s h i p is inclined to turn down the curative amendment, the Supervisors privately realize that their case has some weak points. Also,they are not entirely opposed to a shopping center on that site if the developers would just "give" a little more on such things as site improvements, intensity of use, etc. Rightly or wrongly, Malls, Inc. has a poor reputation and the T o w n s h i p does not trust them. Further, a local citizens group is opposed to any commercial use on the site. It is clear that the developer, having chosen the curative route, intends to "stay the course" and will appeal a turn-down by the Board. The Township recently has instituted a "mediation option" permitted under Sect. 908 of the MPC, and decides to approach the developer and citizens g r o u p with the suggestion to mediate. All parties agree; no one,. i n c l u d i n g the citizens g r o u p a n d developer, is sure of what the court's decision will be and would prefer to come up with a j o i n t solution rather than risk losing. T h e developer would like to go ahead with the project in some version as soon as possible, and also sees mediation as an o p p o r t u n i t y to b u i l d g o o d relationships with the community for future projects. T h e time and expense of protracted appeals appeals to no one (even the citizens group, with its limited budget). A mediator is selected and is funded jointly by all the parties according to a formula mutually agreed upon. In the first session, the parties (Township, developer, and citizens group) work out procedures for m a i n t a i n i n g confidentiality, dealing with the local press, and for assuring implementation of a n y agreements. In subsequent session(s) the parties build a j o i n t agreement, featuring a modified curative amendment that outlines some inventive standards, criteria, a n d c o n d i t i o n s , i n c l u d i n g m i t i g a t i o n , m e a s u r e s and developer commitments, under which Malls, Inc.
may build a s h o p p i n g center. T h e company files a revised proposal with the Board of Supervisors. T h e required MPC procedures again are followed, but are greatly abbreviated since the Board is able to approve the new proposal and amend the zoning ordinance with a m i n i m u m of discussion. We at the Environmental Management Center have been the first to emphasize that the mediation provision will be no panacea. It will be used in a select number of cases where all the parties volgntarily agree that it is in their best interest to sit down and negotiate. T h e process shows most promise in disputes where uncertainty of outcome and potential for delay (and therefore increased costs) weigh heavily, and where MPC procedures leave room for discretion and m a n e u v e r a b i l i t y , e.g. c h a l l e n g e to ordinance validity and rezoning requests. Recognizing, however, that mediation could be useful in any number of situations, depending on the circumstances, the Task Force agreed that the o p t i o n s h o u l d be r e f e r e n c e d throughout the Code as appropriate (under suhdivision approval, zoning ordinance amendments, etc.). It is hard to know what lies ahead. T h e Legislature may embrace the mediation option as motherhood and apple pie and a way to relieve the court system, or it may see it as a confusing and unwelcome addition to existing MPC procedures. T h e course chosen by the Legislature largely depends on whether the backers of mediation can make a cogent and compelling case. If the mediation option is enacted, Pennsylvania would be the first state to include such a provision in its local planning enabling statute. We feel it is worth the effort. For
more
information
contact:
Wendy Emrich Environmental Management Center Brandywine Conservancy P.O. Box 141 Chadds Ford, PA 19317 (215) 388-7601
EIA REVIEW
4/2
221
G E N D A