Issue Paper # 5 2nd Draft

Altenative Dispute Resolution and Mediation

I. IDENTIFICATION OF THE ISSUE

Disputes arising under land use and zoning laws have been long-standing. The adoption of the GMA, however, added a new dimension to these disputes. Prior to the adoption of the GMA, most land use disputes involved site specific issues. The GMA has added an additional set of issues that can result in disputes. The 1991 amendments to the GMA included a dispute resolution mechanism, the Growth Management Hearings Boards (GMHB), for resolution of these new disputes over policy choices made by counties and cities. The Boards do not have jurisdiction over those disputes involving permitting and site specific decisions. Although there may be a need for an exploration of additional dispute resolution aids to help resolve those disputes, this paper is limited to a consideration of disputes arising during the planning process.

Because the Boards are quasi-judicial bodies, cases before the Boards are resolved based on the facts presented to them. Since the types of disputes presented to the boards turn as much on policy choices as on factual matters, the resolution of those cases often ends up satisfying neither party. Alternative dispute resolution presents a means for the parties to come to an agreement that all may be satisfied with. There have been a number of issues raised about the best way to invoke and encourage alternative dispute resolution of those cases that have been filed with the Boards. This paper will discuss that issue.

II. BACKGROUND

A. Alternative Dispute Resolution

Alternative dispute resolution might be considered to be the resolution of disputes by the parties themselves, rather than by a third party. Although much of this paper focuses on mediation, it is important to remember that it is the parties who are the principles in a mediation. The central activity going on is their effort to negotiate an outcome that works for them. A mediator or facilitator is essentially a common staff, someone accountable to all, whose job it is to assist the parties as they try to find a solution. Some growth management disputes have been settled without the assistance of a mediator. However, in growth management disputes, particularly those where the parties lack trust or a good working relationship, the assistance of a skilled and impartial outsider can be crucial to achieving agreement.

In addition to mediation, alternative dispute resolution sometimes is used to refer to alternatives to the traditional judicial process, such as arbitration or the use of special masters. These mechanisms differ from mediation in that they rely on a third party to make a decision.

B. Mediation under the GMA

The GMA contains little in the way of direction in the encouragement or use of mediation as a means to resolve disputes that arise under the GMA. There is direction to DCTED to assist in mediating disputes over interim urban growth boundaries. Footnote1 In addition, mediation is encouraged as a means of resolving disputes over county-wide planning policies. Footnote2 DCTED is directed to "provide mediation services to resolve disputes between counties and cities regarding, among other things, coordination of regional issues and designation of urban growth areas," Footnote3 but it has received no significant funding to carry out this task.

The Office of Financial Management has received a grant from the National Institute for Dispute Resolution. The sole part time staff available through that effort, now funded as part of OFM's current budget, has assisted a few jurisdictions in resolving disputes and has advised others about dispute resolution.

The GMHBs have tabulated their case involvement to date, including the number of cases that Board members have attempted to resolve through mediation. (See Appendix A) Of seven mediations conducted by board members, three resulted in agreements. The Thurston County Dispute Resolution Center mediated a fourth agreement. The Office of Financial Management failed in its effort to mediate the Kitsap appeal.

Eric Laschever of Preston, Gates, Ellis has identified three additional cases that settled without the aid of a mediator. Private mediators have been hired in at least four other conflicts, none of which had been appealed to a board. In 1992, city and county elected officials in Snohomish County established an annexation policy to apply during preparation of the county plan. Several years ago, a Kitsap County "round table" failed to reach agreement on a policy for rural lands and mediation did not resolve several issues in Clark County at about that time. And in 1995 elected officials representing Pierce County and its cities and towns resolved several conflicts over county-wide planning policies, assisted by OFM's Dispute Resolution Project.

More recently, the Eastern Washington Growth Management Hearings Board has developed policies designed to encourage settlement of disputes before that Board. The Board encourages the parties to negotiate an agreement between them, with a Board member willing to assist if needed. This process relies on members of the Eastern Board to facilitate the agreement, rather than using members from other Boards in a more formal mediation process. The Board believes this process has resulted in several settlements that would otherwise have ended up in hearings and decisions.

Although the number of growth management cases in Washington is small, several points can be made. First, mediation can occur whether or not a case has been brought before a board. In fact, mediation can occur whenever all the parties are known and want to negotiate. In general, however, some sense of urgency is needed and the fact that an appeal is pending before a board can motivate parties to negotiate. Thus mediation can occur during growth management controversies for which no party is contemplating an appeal to a board, before an appeal is filed, after an appeal is filed, or after a board has made a decision and the parties choose to work together to comply with the board's decision.

Additional information that would be useful:

1. It would be helpful to have some characterization of the cases filed with the Boards. How many have been complex, multi-party cases and how many limited party disputes? What have been the issues in dispute? Do some of these issues seem to be suitable for negotiation by the parties? Do some seem to pose questions that the Boards or a court should decide? Who have been the litigants? Were they were satisfied with the Board process or might they have preferred to try to settle? Did they try to settle?

2. It would also be helpful to characterize the mediations to date, although the sample is small. Why has mediation worked in some cases and not others? When did the mediations occur? (Before appeal, after appeal, after decision?) Why have there been so few mediations out of hundreds of cases?

C. Mediation of Growth Management Disputes in Other States

There does not seem to be a single entity keeping track of efforts to mediate growth management disputes nationally. The following information was obtained in June and July 1996 through a query to the National Institute for Dispute Resolution and to offices of mediation in other states.

Several states have included mediation provisions in statutes. These generally encourage mediation of growth management disputes and may designate an agency to take the lead, much as Washington's Growth Management Act designates CTED. Georgia's statute designates that state's counterpart to Washington's CTED; Vermont designates the regional planning commissions; Pennsylvania and California encourage the practice without designating an agency. Calls to these four states revealed that no cases have yet been mediated under these statutes.

Twenty states have what are generally called in the mediation trade "statewide offices of mediation." Washington was the 17th state to establish such an office when the Office of Financial Management received a grant from the National Institute for Dispute Resolution to start the Washington Dispute Resolution Project in November 1993. These offices vary considerably in structure and in program emphasis, but most report some success at helping parties resolve complex environmental, land use, growth management or natural resource disputes. The Florida legislature established the Florida Growth Management Conflict Resolution Consortium in 1987 to promote the use of mediation strategies to resolve conflicts under the Florida State Growth Management Act.

The clear leader here is Oregon. There appear to be several reasons for this leadership: a growing number of state and local employees who understand the mediation process and know when and how to use it; strong bipartisan support from elected officials; a citizenry that is becoming accustomed to negotiating solutions to public disputes; state technical assistance; and funding for independent mediators when public employees cannot mediate.

The Oregon program started in 1991 with a grant from the National Institute for Dispute Resolution. From a first successful mediation in 1992, the program grew to 18 agreements during the 1993-95 biennium and currently has nearly that number in mediation. The state contributes a significant portion of the cost of mediation through grants to local governments and state agencies. During the 1993-95 biennium, the last period for which a report has been published, grants ranged from $540 to $12,000 with the average of 21 grants being just under $4000. For the 1995-1997 biennium the legislature appropriated $450,000 for mediation grants.

All of these successful mediations in Oregon and other states have been what the mediation trade calls "ad hoc", as opposed to being organized according to procedures prescribed in statute. By that, mediators mean that the parties in each case have drawn up their own protocols, agreeing before negotiating the substantive issues on such procedural matters as scope of the talks; who participates; what form the agreement, if one is reached, will take; what will happen to the agreement (e.g. adopted by county and city governing bodies); whether the mediation sessions will be open or closed (most are open); and other matters that they want to clarify as ground rules or conditions for participation. A report being prepared by Society for Professionals in Dispute Resolution will identify the ad hoc nature of public policy mediation as an important success factor. Each case is sufficiently different so that the parties need the flexibility to decide how to negotiate on a case-by-case basis. The Oregon program builds on this success factor by providing education about the process and how to use it, and by helping to pay for mediation, but by leaving choice of mediator and decisions about whether and how to negotiate to the parties.

Several states have been able to establish processes that prescribe some of these procedural matters, yet retain sufficient flexibility and choice for the parties. Noteworthy here is Wisconsin's approach for negotiating disputes over the siting of solid and hazardous waste facilities. Since the legislature amended Chapter 144, Wisconsin Statutes, in 1981 to establish the process, over 50 agreements have been negotiated. The parties have needed a mediator only in four of those cases and have chosen to turn the decision over to the Waste Facility Siting Board only three times. Massachusetts is also using a systematic approach for a specific kind of dispute. In Massachusetts, any development proposal near a wetland must obtain approval from the local conservation commission. This has spawned numerous disputes, but the state mediation office is having considerable success resolving them. The office has trained a cadre of independent and state mediators and established a clear mediation "track" that parties may elect to use.

Recent legislation in Florida has established a process for resolving property rights disputes. The Private Property Protection Act of 1995 provides for the use a non-judicial settlement process, managed by special masters, to help resolve property rights disputes involving development orders or enforcement actions.

D. Types of Growth Management Disputes

Mediators divide growth management and land use disputes into two broad types, the distinction being based on complexity, number of parties, and degree of public interest. One type is usually about a specific development project and involves a limited number of parties -- a county and a developer, for example, or a developer, several neighbors, and a city caught in the middle. Most of the wetlands cases in Massachusetts are of this type, as are some of the Oregon cases. These are negotiations in which all the parties can fit around a small table.

The other type is complex, involves many parties, and has issues of public interest. Like the first type, such disputes may also be over a specific project, but one that has generated considerable public controversy, such as expansion of an airport, operation of a gravel pit, or the siting of a waste disposal facility. Such disputes may also arise during the course of negotiating county-wide planning policies, annexation policies, joint planning areas, and other issues between governments; preparing comprehensive plans and development regulations; and designating urban growth boundaries, critical areas and natural resource lands. . In these disputes, because of the sheer number of concerned persons, the negotiators are usually representatives of interest groups and governments. Most of the Oregon cases are of this type, as are most of the other cases in the literature.

III. DISCUSSION OF THE ISSUE

There have been a number of issues raised about the use and success of mediation and other alternative dispute resolution mechanisms to resolve disputes before the GMHBs.

A. Open Public Meetings Act

In mediation, the parties involved in the process are the parties identified as having an "interest" in the outcome, or they are called "stakeholders." In Hearings Boards disputes, local governments usually have an interest as defendants, and frequently as appellants. If elected officials "represent" their governments in a mediation, will there be a violation of the Open Public Meetings Act?

The Act requires that governmental meetings be open and accessible to the general public unless the discussion concerns real estate transactions, litigation, or personnel matters. This law applies to meetings that are 1) governmental involving decision makers and 2) consist of a quorum of the decision makers.

Mediators asked about whether open meetings laws provide a stumbling block to the use of mediation for growth management disputes stated that to their knowledge these laws had not prevented a mediation from occurring. The mediators also noted that this is an example of a procedural issue that is impossible to answer uniformly for all cases and thus best left for the parties to decide on a case-by-case basis.

As a practical matter, many public policy mediations are now held in the open. For those situations where the parties believe that a closed setting is necessary to fully explore possible solutions, several measures are used. One approach is for the elected officials to convene the negotiations in public and then appoint a technical committee of staff to negotiate, instructing them to report any tentative agreements back for review and decision at a public meeting. Another way to comply is to make sure that the mediation session is not attended by a quorum of the decision makers. Protocols for such negotiations frequently note that any agreements reached in private session will require review by elected officials according to the normal, public decision-making process.

B. Due Process Rights and Appearance of Fairness

If a local official engages in discussions with other local officials, or with a land owner with an interest in the outcome of a decision, during the mediation process, is this a violation of due process rights or the Appearance of Fairness Doctrine?

Due process rights are closely associated with growth management decision making procedures. Was there proper notice? Did all the parties have an opportunity to speak? Did the decision makers refrain from engaging in discussions outside the public process? Where the rights of an individual may be affected by the outcome of a decision, extra precaution is taken. These types of decisions are quasi-judicial and the public hearings process must be "fair" to everyone. However, the same restrictions do not apply when decision makers are involved in "legislative" or policy decisions. Similarly, due process applies when a decision is rendered through the process. By contrast, recommendations by the decision makers do not invoke the same due process requirements.

The parties to a mediation typically reach agreement in the form of a recommendation. This tentative settlement is then submitted to a decision making body for final approval and adoption. Therefore, the mediation process is not subject to the same due process constraints. There are many issues that should be considered before the mediation proceeds to ensure there are no procedural due process conflicts. If a public hearing has been initiated, it should not be closed until the mediated decision has been presented in a public forum. In the context of GMA decisions, the parties are most frequently attempting to resolve policy issues which are not subject to the same rigid due process standards as a permit issuing process.

C. Time Limits

By statute, each Hearings Board is required to issue a decision on a petition filed before the Board within 180 days. In order to meet this time limit, the applicants and the Boards are given a very limited amount of time to prepare information to be presented at hearings and to issue well reasoned decisions. For some parties it may be logistically impossible to both litigate and negotiate simultaneously. While a deadline can stimulate settlement efforts, the kinds of policy questions that get appealed to the Boards may require more time for thoughtful deliberation.

D. Availability of Board Resources

Mediation can be a time intensive activity for the mediator. More is involved than attending a few meetings with all of the parties. The Growth Management Hearings Boards have limited resources. There are some concerns that having the Board members mediate disputes takes valuable time away from the need to issue decisions. In addition, mediators note that they must be able to take action on a moments notice in order to facilitate a resolution. Board members may not have the flexibility to meet this need. Often key to resolving dispute is working out a difference between several of the parties. The mediators path to resolution is often more akin to a detective following a lead, rather than a series of meetings where everybody sits around a big table. That suggests that the mediator must have a flexible schedule and the time to do essential work away from the joint negotiating sessions.

E. Board Members as Mediators

There have also been some expressions of concern about Board members acting as mediators, because they may also be the decision maker. This concern has been expressed even in those cases where a Board member from a different Board acts to help resolve a dispute. One possible solution would be for the Board members to look at ways that they can assist the parties' efforts to negotiate an acceptable outcome. These might include meeting with parties to clarify the relationship between settlement efforts and board action, rendering advisory opinions, and tolling the clock to give the parties more time. They might also include any other actions that could make a decision by a board appear less attractive to the parties than coming up with the decision themselves. This is an approach that has been used in Wisconsin, where there are many more agreements than board decisions. The board in Wisconsin has to choose between plaintiff or respondent; it can't fabricate a creative solution.

F. Identification of cases which are ripe for mediation.

One critical element of the mediation process is knowing when a case is ready to be mediated. This can happen at two levels. At a general, state-wide level, a more general awareness about how and when to use mediation for growth management cases would be helpful. Written publications and guides and public speaking by state staff, mediators, and principals who have participated in a mediation would be useful in this regard. The second level involves a determination of whether a specific case is ripe. The best approach here is consultation by parties with someone who is knowledgeable about mediation of public policy disputes. The result of the consultation should be an informed decision by each party about whether mediation is appropriate and a clear understanding about how the mediation is to be structured.

IV. OPTIONS

Option 1. No Action.

Pro:

Con:

Option 2: State Coordinating Agency. Set up a program along the lines of the Oregon model, with a state coordinating agency providing grants, technical assistance in mediation, and a list of trained mediators.

Pro:

Con:

Option 3: Allow Extension of Time for Decision. Allow the Boards to extend for a set period of time not to exceed 30 days the date by which it must issue a decision. The Board could only extend the period upon request of the parties if they are engaged in settlement discussion or mediation and the Board determines with additional time the parties are likely to achieve an agreement.

Pro:

Con:

Option 4: Boards as Mediation Only. Change the Boards from decision-making boards into mediation boards. Appeals of local government GMA actions could either be taken to the Boards for mediation or appealed to superior court.

Pro:

Con:

APPENDIX A

GROWTH MANAGEMENT HEARINGS BOARDS STATISTICS

APPENDIX B

GMHB Cases Involving Mediation

1. City of Moses Lake v. Grant County - January 1993.

Mediator: Bill Nielsen

Parties: City and County officials

Issue: Dispute regarding County-wide planning policy language on rural and urban density.

Resolution: Settlement reached.

2. City of Ellensburg v. Kittitas County - February 1995.

Mediator: Bill Nielsen

Parties: City and County officials

Issue: Extent of County's agricultural zoning.

Resolution: Settlement reached.

3. Chelan County v. several groups of citizens and several cities - Early 1995.

Mediator: Bill Nielsen

Parties: County, City and citizen groups

Issue: Not identified

Resolution: No agreement by County to try mediation.

4. City of Ellensburg v. Kittitas County - August/September 1995.

Mediator: Les Eldridge

Parties: City Council, Planning Commission, City Staff participated

Issue: Notice to DCTED of intent to adopt Comprehensive Plan and EIS.

Resolution: No settlement.

5. City of East Wenatchee et. al., v. Douglas County - October 1995.

Mediator: Nan Henriksen

Parties: City and County officials.

Issue: Location of commercial area in unincorporated County outside UGA

Resolution: No settlement.

6. Cosmos, Inc. (Benaroya) v. City of Redmond - November 1995.

Mediator: Judy Wall and Les Eldridge

Parties: City Planning Staff, Cosmos reps.

Issue: Agricultural land within urban areas and residential densities on discreet parcels of land.

Resolution: Proposal reached parties to mediation. City Council failed to accept mediated proposal.

7. Sky Valley, et. al. v. Snohomish County - November 1995.

Mediator: Bill Nielsen

Parties: (Unidentified in memo)

Issue: (Unidentified in memo)

Resolution: Settlement achieved outside of mediation.

8. City of College Place v. Walla Walla County - March 1996.

Mediator: Les Eldridge

Parties: City Council reps, County Commission reps and planning staff

Issue: Inclusion of commercial and agricultural area within UGA and access issues.

Resolution: Stipulated agreement reached.

Footnote1

RCW 36.70A.110(2).

Footnote2

RCW 36.70A.210(2)(d).

Footnote3

RCW 36.70A.190(5).