THE AMERICAN LAW INSTITUTE Continuing Legal Education. Eminent Domain and Land Valuation Litigation January 25-27, 2018 Charleston, South Carolina

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1 581 THE AMERICAN LAW INSTITUTE Continuing Legal Education Eminent Domain and Land Valuation Litigation January 25-27, 2018 Charleston, South Carolina Techniques in Land Use Dispute Resolution By Sara C. Bronin University of Connecticut School of Law Hartford, Connecticut Dwight H. Merriam Robinson & Cole LLP Hartford, Connecticut Submitted by Peter H. Buchsbaum Lanza & Lanza LLP Flemington, New Jersey

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3 583 Chapter 31 Techniques in Land Use Dispute Resolution * Sara C. Bronin & Dwight H. Merriam** 31:1 The framework for land use decision making 31:2 Traditional system is effective for non-controversial land use decisions 31:3 Traditional system is inadequate in resolving specialized land use disputes 31:4 Alternative dispute resolution processes offer solutions 31:5 Use of alternative dispute resolution as a supplemental solution to land use conflicts is growing 31:6 Success rates and benefits of a collaborative process 31:7 Not all dispute resolution programs have achieved successful results 31:8 Obstacles to widespread use of collaborative resolution 31:9 Overcoming the obstacles 31:10 Screening cases helps to achieve success * Thomson Reuters. Reprinted with permission. **Sara C. Bronin is an architect and a Professor of Law and Faculty Director of the Center for Energy & Environmental Law at the University of Connecticut School of Law. Her scholarship examines property, land use, green building, and renewable energy law; among other things, she has published two books on historic preservation law. She consults for public and private entities seeking real estate development strategies and public policy advice, and she serves as chair of the planning and zoning commission for the City of Hartford. Dwight H. Merriam is a lawyer at Robinson & Cole LLP practicing land use, real estate and environmental law. He is a Fellow and Past President of the American Institute of Certified Planners, former chair of the American Bar Association s Section of State and Local Government Law, a member of the American College of Real Estate Lawyers, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and Fellow of the Royal Institution of Chartered Surveyors. The authors would like to thank Lisa Andrzejewski for her excellent and significant assistance in completing this Chapter. K 2017 Thomson Reuters, 11/

4 584 THE LAW OF ZONING AND PLANNING 31:11 Screening process identifies cases suitable for collaborative dispute process 31:12 Stages when collaborative negotiation can be used 31:13 Guiding principles of the mutual gains dispute resolution approach 31:14 Four steps for implementing a mutual gains approach 31:15 Mutual gains implementation step one Assessment Overview and context 31:16 Seven steps for conducting an assessment 31:17 Mutual gains implementation step two Design 31:18 Mutual gains implementation step three Deliberation 31:19 Mutual gains implementation step four Implementation KeyCiteL: Cases and other legal materials listed in KeyCite Scope can be researched through the KeyCite service on WestlawL. Use KeyCite to check citations for form, parallel references, prior and later history, and comprehensive citator information, including citations to other decisions and secondary materials. 31:1 The framework for land use decision making To understand how dispute resolution techniques might be used in the land use context, it is important to first understand the framework within which land use decisions are made. A fuller explanation of this framework is covered elsewhere in this treatise, but we cover the relevant points briefly here. The primary method of regulating land use in this country is through zoning: the local government regulation of the use of land within the community, and of the buildings and structures which may be located thereon, in accordance with a general plan and for the purposes set forth in the state enabling statute. 1 While a local government has much discretion in the development of land use planning and zoning procedures and regulations, as well as in the application of those policies and regulations to specific situations, its decision-making authority is not unbridled. For the purposes of this Chapter, the most relevant limitation on localities decision-making authority is due process. 2 Local land use decision-making procedures are subject to [Section 31:1] 1 See An Overview of Zoning Regulation Ch 1, infra. 2 See Zoning and Due Process Ch 3, infra. 31-2

5 585 TECHNIQUES IN LAND USE DISPUTE RESOLUTION 31:1 procedural due process guarantees afforded by the due process clause of the Fifth Amendment to the U.S. Constitution and the federal clause s counterparts in state constitutions. 3 Generally, due process is required when land use decisions are administrative or quasi-judicial in nature, but it is not necessarily required to the same extent when land use decisions are legislative in nature. 4 In administrative decision making, such as the granting of a permit, where a specific applicant is entitled to the permit upon satisfaction of the regulatory requirements, the applicant is entitled to due process protections. 5 Similarly, due process applies when the local board is acting in a quasi-judicial capacity, in making a decision regarding an individual application based on a broad policy such as a conditional use permit or variance. 6 By contrast, when the local board is making a legislative decision for example passing a zoning ordinance applicable throughout the city or town the same level of due process protection is not required. 7 Courts scrutinize decision making that requires procedural due 3 B. Higgins, Institute for Local Government, An Ounce of Prevention: Best Practices for Making Informed Land Use Decisions 2 (2009), available at tinyurl.com/my9vvnl (last visited Aug. 26, 2014). 4 Schweiker v. McClure, 456 U.S. 188, 102 S. Ct. 1665, 72 L. Ed. 2d 1 (1982) ( As this Court repeatedly has recognized, due process demands impartiality on the part of those who function in judicial or quasi-judicial capacities. ); Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 36 S. Ct. 141, 60 L. Ed. 372 (1915); Londoner v. City and County of Denver, 210 U.S. 373, 28 S. Ct. 708, 52 L. Ed (1908). 5 The Supreme Court in the Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548, 1 I.E.R. Cas. (BNA) 23 (1972), developed the clear entitlement test to determine whether due process protections are warranted. 6 McPherson Landfill, Inc. v. Board of County Com rs of Shawnee County, 274 Kan. 303, 49 P.3d 522, 523 (2002) (in quasi-judicial proceedings, it is incumbent upon the authority to comply with the requirements of due process by making its proceedings fair, open, and impartial, and a denial of due process renders the resulting decision void); Jefferson Utilities, Inc. v. Jefferson County Bd. of Zoning Appeals, 218 W. Va. 436, 624 S.E.2d 873, 874 (2005) ( The critical factor in determining whether the use of some limited discretion by a zoning administrator requires the additional protections that typically attach in evidentiary proceedings is whether the determination being made is one that qualifies as administrative or quasi-judicial in nature. ); B. Higgins, Institute for Local Government, An Ounce of Prevention: Best Practices for Making Informed Land Use Decisions 3 (2009), available at (last visited Aug. 26, 2014); J. Driscoll & T. Hunter, You be the Judge: A Handbook for the Land Use Decisionmaker 5 (1997). 7 Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303, 4 Ohio L. Abs. 816, 54 A.L.R (1926). Note that even though a type of decision may not constitutionally require due process, if a court finds a K 2017 Thomson Reuters, 11/