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Smart Growth law ripe for mediation opportunities

By: dmc-admin//May 25, 2009//

Smart Growth law ripe for mediation opportunities

By: dmc-admin//May 25, 2009//

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“So long as the great majority of men are not deprived of either property or honor, they are satisfied.” — Niccolo Machiavelli

Were he alive today, Machiavelli would likely view alternative dispute resolution as a means of helping humankind preserve some degree of both their property and honor — something that the court system cannot always do.

Since the advent of ADR with sec. 802.12 approximately 15 years ago, its most popular process, mediation, has been widely employed in the family law and civil litigation contexts. But there now appears to be a groundswell, so to speak, for mediation in the property and municipal law realm as well.

Smart Growth

Notably, Jan. 1, 2010 will be here soon. That’s the deadline provided in Wisconsin’s Smart Growth law, as it is commonly known — a law that’s likely to create opportunities for mediators (and lawyers) in the next few months, and beyond.

The formal name is the “Wisconsin Comprehensive Planning Law,” and it provides that at the beginning of next year, if a town, village, city or county engages in official mapping, subdivision regulation or zoning, those actions must be consistent with that community’s comprehensive plan. The law was created by 1999 Wisconsin Act 9, the biennial budget act for 1999-2001 and is codified in Sec. 66.1001.

There is no one-size-fits-all comprehensive plan, and while a local government may opt to include additional elements, its plan must include nine areas, including housing, transportation, utilities, economic development and intergovernmental relations, to name just a few.

The Division of Intergovernmental Relations of the Wisconsin Department of Administration manages the Wisconsin Comprehensive Planning Program. The program awards $2 million in grant funds annually to assist local governments in the development of plans.

Peter Herreid is the agency’s grant administrator in Madison. He says to date, approximately 27 of Wisconsin’s 72 counties have submitted their Smart Growth plans, and about 30 more are expected to be received before the year’s end.

Among the more populous counties that have adopted plans are Dane and Brown Counties. (To see the status of each county’s plan (PDF).)

There’s wide variation among the plans that have been completed so far, says Herreid, but universally, they are sizable documents, generally ranging from 100 to 500 pages. Creating them is a quite an undertaking.

Carolyn Peckham, a mediator with Smooth Transitions LLC in Brooklyn, says alternative dispute resolution can be extremely useful to municipalities in drafting their plans.

“I think complex planning issues are the perfect venue for mediation, because you can help bring people with different points of view together, and you can help them consider the wide range of issues and interests involved in creating a [Smart Growth] plan,” says Peckham.

George Hall, a planner and policy analyst with the Department of Administration in Madison, helped draft the Smart Growth law. He says, “[M]any communities, I believe, have not adequately addressed their relationships with their neighbors, and what that means for how land-use visions might be played out, in an environment when there are many voices and many regulatory authorities that are participating.”

He continues, “It was anticipated that the Smart Growth law would further cooperation among communities. It affects county and state agency decision-making if locals can’t agree on priorities and siting for big-ticket items — things like highway bypasses, major metropolitan-wide sewer plans or the preservation of farmland, for example.”

Mediation is an excellent way to foster that cooperation, in Hall’s estimation.

Hall, who holds a graduate certificate in mediation from Marquette University, says, “In Wisconsin, there’s really not a culture of resolving local government issues through dispute resolution. It’s really just in its infancy. Where the rubber’s going to meet the road is in 2010, whereby only the [Smart Growth] cities, towns and villages will be able to implement land-use controls, whatever they may be. They’ll have to have their plans in place, and that’s going to be another impetus to encourage intergovernmental discussions.”

State Creates Mediator Roster

Beyond Smart Growth, there are other municipal law-related areas that are ripe for mediation, such as incorporation, says Hall.

Pursuant to sec. 66.0217(6)(b), the Department of Administration maintains a roster of dispute resolution providers that can be used by local communities, citizens, and others to locate and select trained and experienced individuals to assist them in resolving municipal boundary, land use, environmental and other intergovernmental conflicts. The roster, coordinated by Hall, is at http://www.doa. state.wi.us/subcategory.asp?linksubcatid=1419&linkcatid=825&linkid=132&locid=9, as is the application to join it.

One of its members is attorney/mediator Michael R. Christopher, of DeWitt Ross & Stevens S.C. in Madison.

Christopher has recently branched into land use and planning mediation, to complement his real estate and government relations practices, because he foresees a growing demand for more mediation in this area the not-too-distant future.

Christopher is currently serving as a neutral to help resolve longstanding litigation regarding extraterritorial platting among municipalities in Eau Claire County. (Everything he says about the case is public record, he notes; he’s not violating his duty of confidentiality, one of the hallmarks of mediation.)

Portions of the lawsuit were dismissed in light of an agreement the parties reached, he says. Now they are working to prevent future litigation. Part of the agreement calls for the towns and the city to employ professional planners. Those planners would then meet to help develop cooperative land-use plans.

The case is a perfect demonstration of the flexibility of ADR, says Christopher. A judge can only reach a decision for a current dispute, taking a narrow view. Once that’s over, his role is done. It’s not a judge’s job to look to prevent future disputes.

“But when these parties agreed to retain their planners, to me it shows that they really understand the issues to be addressed,” he says. “They came up with a solution that a judge couldn’t order. They’re not going to incur future attorneys fees from chronic litigation. And I think we’ve helped decrease some of the enormous animosity that had been building up before and during the current litigation.”

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