There is a half-finished Target store in my neighborhood that stands as a perfect metaphor for the problems with using litigation as a means of resolving developers’ and the community’s interests in urban projects. With construction halted because of claimed height violations, the unfinished building has been left in limbo. The community now has to live with something that is ugly; that is enormously wasteful; and that has been sitting there unfinished for a long time. Its continued unresolved status satisfies neither those opposed nor those in favor of the project.
I used that metaphor while introducing one of the workshops at the SCMA fall conference yesterday, a workshop on urban projects organized by Noah Stein. The panel brought together developers, community group leaders and an official with the MTA to talk about how mediation might be introduced into the planning and approval process to alleviate the adversarial nature of the current system. It was pointed out that zoning codes are so complex that variances are almost invariably needed, leaving developers at the mercy of changing political winds, as well as at risk of penalties for violations. There was also general agreement that the current CEQA process, which dates back to the 1970’s, is in need of reform, if not complete overhaul. It leaves developers and planners after all of the environmental reviews and comments, still at the mercy of one opponent of the project willing to resort to litigation challenging the project’s approval on the grounds that some negative environmental impact of the project was not fully considered.
So perhaps structural changes in the law are needed before we can design a more collaborative rather than adversarial type of planning and approval process. Still there was general agreement that even within the current system it is important for planners and developers to work with community groups and property owners early in the design process, so as to gain the community’s trust, and to help create projects that will be more beneficial to all of the various competing interests. While it might be too late effectively to mediate disputes among project proponents and opponents after litigation has commenced, there does seem to be a place earlier in the design and planning process for the kinds of facilitated dialogues that mediators are trained to conduct.
Recently, I read a blog post regarding attorneys coercing their clients to settle a case. On Victoria Pynchon’s blog, Settle It Now. This made me think about the issue of...By Steve Mehta