Title: Conflict Resolution
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Title: Conflict Resolution
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Language: English
Publisher: Environmental Comment - May 1977
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - Conflict Resolution (JDV Box 91)
General Note: Box 23, Folder 1 ( Miscellaneous Water Papers, Studies, Reports, Newsletters, Booklets, Annual Reports, etc. - 1973 -1992 ), Item 6
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environmental comment


C


Conflict Resolution

















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a


Environmental Comment

May 1977

3 Negotiated Development: A Breakthrough
in Environmental Controversies
Malcolm D. Rivkin
6 Unifying the Concept of Third-Party
Intervention in Environmental Disputes
Laura M. Lake
9 Consensus Building: Mediating Energy,
Environmental, and Economic Conflict
Peter B. Clark
12 Buying Off the Neighbors: Negotiated
Private Settlements of Development
Disputes in Japan
Fred P. Bosselman
13 Environmental Mediation: Potentials and
Limitations
Gerald W. Cormick and Leah K. Patton
16 Up-Front Resolution of Environmental and
Economic Disputes
Michael R. Greenberg and Donald B. Straus
19 The Coastal Development Review Process
in New Jersey: Avoiding Disputes and
Resolving Conflicts
David N. Kinsey
21 Information Sharing and Conciliation: Tools
for Environmental Conflict Management
Susan L. Carpenter and W. J. D. Kennedy
23 Contract Zoning as a Negotiation Tool:
Fairfax County, Virginia's 'Proffer Process'
J. Richard Tremaine and Philip G. Yates


Credits
Cover drawing and sketch on page 5: Marcia E. Fine. Photos: page 10, EPA-DOCUMERICA; page 14, Tom Saier; page 15,
Kenneth O. Kennedy; page 22, Denver Post.


_.___ __







Negotiated Development:

A Breakthrough in Environmental Controversies

Malcolm D. Rivkin


an bargaining techniques, long employed by labor
and management to settle contract disputes, be ap-
plied to the resolution of environmental issues? Can
new physical development be planned through a negotia-
tion process involving developers, concerned citizens,
and government? Recent evidence suggests a "yes" to
both questions.
With increasing frequency, potential problems about the
scale, design, activity mix, land and water treatment, and
other features of major commercial, residential, and
mixed use proposals are being settled through negotia-
tion and compromise before open conflict erupts. This
new interest in accommodation rather than confrontation
is evolving outside the framework of master plans and
zoning controls which have long governed transformation
of land and water resources in America. It holds much
promise in achieving new growth which is environmen-
tally sound, economically productive, and responsive to
community values.
Negotiation requires that everyone involved display a
measure of human sensitivity and technical competence
that, until now, has not characterized the development
process in this country. It carries numerous pitfalls as well
as the promise of a real breakthrough in the impasse be-
tween proponents of environmental protection and those
who favor continued economic growth. Negotiation may
well become the name of the game in land development.
A Changing Climate
That negotiation occurs at all suggests a profound change
in the climate of opinion that has prevailed since passage
of the National Environmental Policy Act of 1970 (NEPA).
NEPA-and the movement toward citizens' environmen-
tal activism which accompanied it-created a conflict
which intensified in the early seventies. Irate developers
championed their rights in land, calling intervention by
citizens and governmental bodies unwarranted and ille-
gitimate. Irate citizens, reacting to what they perceived as
continued rape of the environment, were quick to op-
pose major new undertakings. Arming themselves with
technical experts, citizens used public hearings, the press,
and the courts to exert pressure on government to deny
approvals for controversial projects.
Local governments were caught between two poles, with
little guidance on how to resolve the dilemma. Tradition-
ally, local zoning ordinances and master plans deter-
mined standards for development. By and large, how-
ever, these instruments had been drawn without sensi-
tivity to such matters as the environmental fragility of
land and water resources, or the impact of growth on a
community's utilities and services. Lacking new standards
of land use control, local decision makers could not assess
objectively the merits of development proposals. The
situation was further complicated by passage of federal
and state legislation mandating higher levels of water
quality and air pollution control. Many communities in
metropolitan areas found their utility systems incapable


of meeting the requirements. Major new developments
would tax these systems, especially sewers, still further.
As a result, literally hundreds of moratoria on growth
were enacted at the local or state level. For the large scale
developer, the permissive conditions which had charac-
terized expansion of postwar metropolitan America
came to an end.
As time passes without comprehensive and equitable sys-
tems of growth management, pressures intensify for less-
than-perfect, short term accommodations. As one pundit
put it: "People don't stop having babies just because
there is a sewer moratorium." Families, businesses, and in-
dustries need new facilities, and this inevitably involves
controversy when appropriate standards are uncertain.
An indefinite halt to construction and, indeed, to contro-
versy is not possible while the country waits for codifica-
tion of more sensitive mechanisms for environmental
protection-mechanisms which themselves must meet
tests of political and social acceptability before adoption.
Somehow, both short term and long term treatment of
land and water resources must reflect the pluralism of
America's values and needs. As suggested by the Rocke-
feller Task Force's seminal report, The Use of Land, Amer-
ica must "make peace with pluralism" in searching for
appropriate controls.



Negotiation requires a greater measure of human
sensitivity and technical competence on the part
of all concerned.



As the decade unfolds, much of the impetus for negotiat-
ed settlement as the basis for new growth stems from so-
ciety's unmet social and economic needs. A driving force
toward "peace with pluralism" in the short run has been
the recession, which crippled the building industry in
1974 and 1975. In many communities, the development
pipeline dried up and tens of thousands of employees
and businesses associated with the construction industry
were out of work. For the first time since the passage of
NEPA, developers and industrialists did not stand alone.
A powerful worker constituency, whose votes are at least
as influential as those of environmental activists, has been
urging government flexibility to start construction dollars
moving again. Their voices add legitimacy to government-
al participation in negotiating ad hoc solutions for indi-
vidual projects, even while the search for more compre-
hensive guidance measures continues.
Some evidence already exists that developers, govern-
ment, and citizens are starting to learn new ways of ac-
commodating physical change to environmental and
community values, and vice versa. Parallels for this effort
come from industry, where management and labor in







partnership with government long ago established a bar-
gaining tradition as an alternative to paralyzing disputes.
As in labor-management bargaining, each party holds
high cards; each can exert a certain amount of leverage
on the other. The negotiation process becomes an art of
balancing power against power to achieve acceptable
compromise. When one party no longer finds the stakes
high enough to continue talking-and adjusting-the
process breaks down. But common interest in reaching a
settlement (a mutually acceptable project, for example)
may lead to adjustments in position that none of the par-
ticipants considered likely at the outset.

Roots of Negotiation
Like most other institutional innovations, negotiated de-
velopment has roots and precedents. During the sixties,
some negotiation took place between public authorities
and neighborhood residents in areas affected by urban
renewal projects. Inner-city residents, under government-
encouraged participation programs, began to feel their
"muscle" by bargaining on specific characteristics of
urban renewal plans, such as amount of clearance and
commitments to reuse cleared sites for community facil-
ities.
Further, the form of zoning generally known as planned
unit development (PUD) holds some precedents. PUDs,
first introduced in the sixties, were adopted in one form
or another by many communities. They were among the
measures urged by the National Commission on Urban
Problems (the Douglas Commission) in 1968 to improve
the quality of the manmade environment. PUD ordi-
nances generally fall into two categories:
*The most common are those which allow a developer
to design precisely to the uses and densities permit-
ted in conventional zoning categories. Instead of
rigid requirements as to lot size, setbacks, etc., the
actual manner in which facilities are placed on the
land is allowed considerable flexibility, dependent
on public agency review of the proponent's site plan.
*A still more flexible instrument is the PUD ordinance
which allows the developer to mix uses and densities,
within certain stated limits, achieving a more varied,
harmonious, and often economically productive pat-
tern of land development. Bonuses (normally greater
density) often are granted for commitments to pro-
duce such items as community facilities or especially
ample internal open space.
Both types of PUD require the developer to submit his
site plans for public agency review and public hearings
before final approval. Also, both often involve require-
ments that the developer dedicate or construct such
amenities as parks, playgrounds, and school sites in return
for flexibility and other bonuses.
The PUD approach has produced many excellent, envi-
ronmentally sound undertakings: the new communities
of Reston and Columbia, central-city programs such as
Jacksonville's new downtown, and many smaller projects.
Zoning by contract, or "conditional zoning," is another
precedent under which many communities exact contri-
butions from developers in return for project permissions.
These contributions often include highway improve-
ments, money for school construction, or added capacity


for sewage treatment plants. [The article by i. Richard
Tremaine and Philip G. Yates in this issue of EC discusses
contract zoning as a negotiation tool.-Ed.
Negotiated development as now practiced, however, can
cover a far wider spectrum of project components than
zoning, and it can occur at several stages of the approval
process-up to the final granting of building permits.
Most of the physical and many of the program and man-
agement components of complex projects are now sub-
ject to public scrutiny, debate, and developer compro-
mise.
One aspect not generally negotiable is the site itself. By
the time a project becomes tangible enough for discus-
sion (at least by private interests) a site usually has been
selected and financial commitments for land have been
made. Thus, public or governmental opposition to a proj-
ect per se may still lead to an impasse. Nevertheless, many
successful compromises have dealt with preserving specif-
ic portions of a site.
Another precursor of today's negotiated development is
the back-room "horse trading" by development interests
and local government that characterized much of metro-
politan growth in the days before NEPA, and even before
the institution of planned unit developments. Often de-
velopers selected project sites that were not "properly"
zoned. There are countless examples of sites selected for
commercial or high density uses because current zoning
called for low density and the land therefore was rela-
tively cheap. Negotiations then were conducted with lo-
cal government to have the codes and ordinances
changed. This accommodated both developers and local
officials who believed that "growth was good."
Some of these back-room deals were honest, and some
otherwise, but this technique often governed how land
was used or abused in the days before NEPA. Citizen ac-
tivism scotched the practice. The lingering remembrance
of past successes, however, has sensitized some develop-
ers to the prospects for discussion and compromise now
that the old avenues are cut off. Perhaps desperate eco-
nomic conditions have caused developers, sooner than
citizens and government, to seek a forum for negotiation
and compromise. Yet the "deals" are far different today.
The balance of power is more equally distributed among
a wider range of interests, and the accommodations are
not one-sided. The forum is now a fishbowl, not a back
room.

The Role of Impact Statements
Adoption by local and state government of the environ-
mental impact statement (EIS) as a tool for reviewing
projects has done much to facilitate accommodation and
compromise. The EIS can set the stage for negotiation in
project design and management and, most important,
can remove some powerful constraints to governmental
and citizen participation in the negotiation process.
The EIS was established originally to apply to decisions
involving federal projects under the National Environ-
mental Policy Act. It is a procedure, not a set of stand-
ards-a distinction of fundamental significance. Under
NEPA every major federal project that will significantly
affect the quality of the environment-from Corps of En-







gineers' dams to state-built highways partially financed by
the Department of Transportation-must file both a pre-
liminary and a final EIS prior to project approval. These
statements have three main functions:
*To identify anticipated effects of a project on both
the physical environment (such as air and water qual-
ity) and the socioeconomic environment (displace-
ment of families, contributions to economic growth,
need for public services, etc.).
*To identify alternatives to the proposed project and
their implications-including "no-build" as an alter-
native.
*To suggest the kinds of measures which can soften
adverse environmental or socioeconomic impacts.
The sponsoring agency, however, is not required to
commit its resources to these measures.
Draft EIS's are circulated among various federal, state, and
local agencies for comments. Interested parties can ob-
tain and comment on the submissions, and can go to
court if procedural steps are not followed.
The only legal requirement involving EIS's is that the
procedure be followed. But the procedure also implies
that comments on the draft EIS be heeded prior to filing
the final statement with the Council on Environmental
Quality and agency approval of the project. Modifica-
tions have been made in many federal undertakings in
response to comments on the EIS, along with commit-
ment of substantial sums for mitigating measures.








^vct, c


In the past few years, many state and local governments
have adopted EIS requirements for private as well as pub-
lic projects. Although the precise forms and institutional
settings differ widely, most impact statement require-
ments are modeled on the federal EIS. They are heavy on
procedure and light on substance and benchmark stand-
ards. Unlike the federal EIS, many demand a positive de-
O termination of adequacy by a governing body prior to
project approval. Adoption of the EIS procedure by state
and local governments is itself a recognition of uncer-
tainty as to how development should take place.


An EIS usually takes the form of an elaborate checklist
that calls certain matters to the attention of project pro-
ponents, the public, and reviewers. It forces the develop-
er to think through the impact of a project on natural
conditions and community patterns, to pay explicit atten-
tion to alternative solutions, and to evaluate methods of
mitigating adverse consequences. The public can com-
ment-and does. The reviewer, lacking prescribed stand-
ards against which to measure much of the information
submitted, can exercise considerable discretion in reach-
ing final judgments and setting performance conditions,
such as protecting water supply and sensitive land and
water features, or preventing a drain on community
services. Options and modifications are possible on mat-
ters ranging from density to stormwater management.
Thus, the EIS can provide a legitimate framework for dis-
cussion, for establishing tradeoffs and conditions-in
short, for negotiation.
Projects are sometimes disapproved when an EIS appears
inadequate or reveals unmitigable circumstances. By no
means do all EIS's lead to negotiations, and both govern-
ment agencies and citizens can "jawbone" developers
into compliance with undebated conditions as the price
of approval. Also, not all negotiations are conducted in an
impact statement context. Nevertheless, the device has
widespread importance in establishing a climate-involv-
ing public participation-in which performance measures
for specific projects can be set and acceptable develop-
ment achieved through negotiation.
Essentials for Negotiation
Negotiating a specific development project or a broader
land use guidance system is not simple. It is a delicate
process, requiring credibility and some measure of mutu-
al confidence among the negotiating parties. Filled with
possibilities for conflict, the process breaks down unless
the common interest is maintained. But articulate repre-
sentation of each interest is essential in setting limits to
concessions and compromise. The tensions of give and
take are necessary if land development is to reflect plur-
alistic values.
Once the decision is made to enter into the process, all
concerned parties must display three qualities: sensitivity,
toughness, and technical skill. Of the three, toughness is
in least short supply. Indeed, the hard stance of develop-
ers, environmentalists, and regulatory agencies has been
a principal force in blocking accommodation.
Sensitivity to other viewpoints is crucial. The developer
must accept the legitimacy of citizen and environmental-
ist concern, and the citizen must be willing to consider
economic interests. Governmental decision makers need
to balance conflicting views against their own interpre-
tation of a broader public interest, recognizing that these
positions are themselves components of that public good.
Civility-or at least a willing suspension of the acrimony
that often accompanies debate over environmental issues
-is basic. Regrettably, a readiness to communicate and to
absorb (if not accept) a deeply felt contrasting position
does not come easily to many developers and environ-
mental activists.
The most successful developer-negotiator I have encoun-
tered is a former industrial executive who only recently


I







switched to real estate. Long accustomed to handling
management-labor negotiations, he also had actively par-
ticipated in civic groups. He readily translated his bar-
gaining skills and deep community interest into his new
role as commercial developer. Out front in the most heat-
ed of neighborhood meetings, he always maintained
composure and civility, winning support because of the
forthrightness of his views and his willingness to accom-
modate citizen interests.
Technical skill is all-important in this context. Architects,
engineers, soil scientists, hydrologists, and economists-
as well as planners-must be available to conceive alter-
native solutions and test their impacts. The developer
must be assured that alternatives are technically and
economically feasible. Public agencies need technical
knowledge to assess objectively the implications of storm-
water management, traffic, and waste treatment control.
A great danger is that development projects can become
"camels"-horses designed by committees-either physi-
cally or economically unsound because of attempted
compromises. Expertise in a wide variety of fields must be
available to government, citizens, and project proponents
to ensure an "integrity" of project design even while
accommodation takes place.
The Perils
Costs. Negotiation is expensive. Skills must be purchased
-engineers, planners, attorneys-and on the private side,
these skills have to be applied long before a project is
completed and producing revenue. In a commercial un-
dertaking, the process can represent tens of thousands
of dollars beyond normal design cost. Public agencies re-
quire many more qualified technical personnel than did
the old system of cursory zoning and subdivision review.
If the skills are not available, then the inherent danger of
mistakes in judgment-in preparing and evaluating al-
ternative solutions involving storm drainage, sewage
treatment, and basic project costs- intensifies.
In a private undertaking, these costs are, of course,
passed on to the ultimate consumers. Thus, the danger
exists that the products of the process may be available
only to the well-to-do. For the foreseeable future, per-
haps, only the best-funded undertakings are capable of
absorbing the costs of negotiation. New Jersey's coastal
area guidelines represent a possible breakthrough since
their availability to developers at the outset of project


design may hold down the need for major technical revi-
sions at later stages. [The article by David N. Kinsey in this
issue describes negotiation in the New Jersey program;
for more background on New jersey's coastal zone man-
agement program, see the November 1976 EC. -Ed.]
Monitoring. Although agreements may be negotiated in
good faith, they must be monitored as development un-
folds. Developers should be prepared to follow through
on their commitments, but, at the same time, both public
agencies and citizen groups need to watch closely what
happens and to be prepared to withdraw their support in
the event of defaults. Successful negotiation is only a be-
ginning. Thus far only a handful of major projects have
been negotiated in any area. This will enable their evolu-
tion and impacts to be closely monitored.
Also, only relatively limited project types-residential,
mixed use, and commercial projects characteristic of nor-
mal urban growth-have been negotiated. Atomic power
plants, major industrial facilities, and large scale public
projects, such as airports which have profound impacts
on environment and community, are still inherently ex-
plosive matters. More likely than not, they can be sources
of open conflict, institutionally and technically less amen-
able to rational discussion at an early design stage.
It is to be hoped that negotiated development will pro-
vide sufficient breathing room until more comprehensive
standards have been tested and put in place, standards
which themselves incorporate opportunity for flexibility
and adaptation. It is not possible to assess how far nego-
tiation- and mediation will carry us in this quest. That is,
perhaps, part of the excitement. For if there is anything
new and challenging in the land use game, if there is any
approach that may carry us beyond the impasse of the
mid-seventies, it will be the application of bargaining
techniques to land development. 0


Malcolm D. Rivkin is president of Rivkin Associates, Inc., a plan-
ning and economic development firm in Washington, D.C. This
article is excerpted from an Issue Report written for the Conser-
vation Foundation. The Issue Report discusses in some detail
two recent cases involving negotiated development: White Flint
Mall in Maryland, and government-initiated negotiations in New
jersey's coastal area. The complete Issue Report may be pur-
chased directly from the Conservation Foundation, 1717 Massa-
chusetts Avenue, N.W., Washington, D.C. 20036.


Unifying the Concept of Third-Party Intervention

in Environmental Disputes

Laura M. Lake


As the frontier of environmental case law is traversed
and new precedents become less frequent, it seems
appropriate to develop alternative social processes
to equitably resolve the increasing number of environ-
mental disputes over dams, highways, power plants, and
other natural resource issues. It has, however, been sug-


gested that conflict should not be avoided and that en-
vironmental settlements based on compromise may serve
to co-opt conflict, the essence of an open democratic
society. Conflict provides an opportunity for groups with
limited resources to air their demands. Conflict identifies
issues and interests, and it generates information. To be







sure, there are cases which should not be compromised,
such as the status of endangered species-they either
are or are not endangered. Yet there are many disputes
involving the assessment of technical information and
the analysis of competing interests which place an in-
creasing burden on our judicial, economic, and environ-
mental systems. Conflict for the sake of conflict becomes
dysfunctional.
Intervention in environmental disputes for the purpose
of developing mutual compromises is unlikely to become
a panacea. At best, the techniques used by intervenors
will serve as auxiliaries for improved environmental de-
cision making. Intervention is obviously a difficult and
complex means of resolving a conflict, and its applicabil-
ity is limited. Nevertheless, it is important enough and
often enough used to deserve attention and refinement.
It is the purpose of this article to present a set of unifying
concepts for the use of third-party intervention in resolv-
ing environmental disputes. Throughout, one should
keep in mind the exploratory nature of the intervention
process.
Third-party intervention creates a dialogue to replace
diatribes. This dialogue defines issues, identifies both
overt and covert interests, and-most significant-social-
izes the disputants to accept the notion that an equitable
solution must consider competing legitimate interests and
that a measure of accommodation is necessary. Participa-
tion is thus based on the perception that it is in a group's
or individual's interest to make tradeoffs between con-
tending forces rather than risk extended delay and possi-
ble loss of a court case.
} Techniques
Environmental intervenors use four related techniques:
fact finding, dispute avoidance, conciliation, and dispute
settlement. Whether or not one should call these four
spheres of activity mediation is being debated. But this
matter of jargon is clearly of minor importance; there
are many individuals and organizations around the
United States who are eager to resolve environmental dis-
putes and who are willing to give these processes any
name, as long as they work. The term mediation is used
here in this spirit. It connotes neutral persons who facili-
tate mutual concessions to resolve environmental dis-
putes.
The third-party intervention techniques discussed here
should be distinguished from arbitration. Arbitrators
usually formulate solutions involving only two parties.
The basis of their dispute is often contractual. Mediators,
however, facilitate voluntary compromises which must be
accepted by many disputants, since environmental dis-
putes, unlike traditional labor arbitration and mediation
cases, involve multiple interests, such as environmental,
business, public health, labor, and civic organizations.
For example, the West Side Highway mediation which
took place in New York City in 1974 involved 38 repre-
sentatives of 23 organizations. Obviously enough, devel-
oping compromises among such a collection of personal-
S ities and interests is a lively art.
The Basic Elements
Although the four techniques vary from situation to situ-
ation and according to the stage of a dispute at which


the mediator becomes involved, all four involve certain
fundamental elements: the decision to mediate, the
mediator's role and qualifications, timing of intervention,
participant selection, use of technical experts, implemen-
tation of settlements, confidentiality and the mass news
media, and the institutionalizing and financing of inter-
vention services. As discussed here, these elements to-
gether become a conceptual model for environmental
mediation.
Deciding to mediate. Environmental disputes are closely
associated with the strategy of delay. But the delay is cost-
ly to all sides; construction costs rise, project staff morale
sags, and opponents run their shoestring volunteer efforts
on sheer adrenaline. As long as either "pro" or "anti"
coalitions perceive themselves in a position to benefit
from continued delay, although at a high capital or emo-
tional cost, third-party intervention is inappropriate.




Intervenors are not ivory-tower policy analysts but
individuals who have developed skills to win the
trust of feuding groups and to craft compromises.




The decision to consider third-party intervention as an al-
ternative to litigation must be based on a willingness on
the part of all parties to acknowledge their mutual inter-
est in a swift, equitable settlement, rather than a probably
protracted, adjudicated decision based on legal briefs.
Court cases are waged to win, rather than to determine
the truth or merit of both sides' arguments. Thus, agree-
ment to bargain with diverse interests implies stepping
down from the soapbox, listening and responding to the
concerns of others, and directly negotiating and inspect-
ing the bargaining chips. Since this bargaining process in-
volves the exchange of information which may jeopardize
future legal deliberations, resort to third-party interven-
tion involves some risk to participants and requires good
faith from all those involved. The mediator must ascertain
the motives of all participants through careful investiga-
tion before setting out on a mission to resolve a dispute,
lest mediation become another technique for delay.
The mediator's qualifications and role. The key qualifica-
tions of mediators are neutrality, independence, and flex-
ibility. They must be able to engage disparate participants
by adopting styles which encourage openness, humor,
and accommodation. The mediator serves at the pleasure
of the participants and necessarily depends on their con-
tinued goodwill. To preserve the mediator's neutrality
and to preserve the participants' trust in the mediator,
ground rules must be stated explicitly. This is particularly
important when the group's issue agenda is developed:
the exclusion of a key issue can bias the entire proceed-
ing. Thus the mediator is responsible for drawing out the
"hidden agendas" of all participants and for keeping
the discussions on track.
During mediation, the intervenor can conduct both mul-
tiparty and individual sessions to organize the negotiation
process and identify issues, tradeoffs, and information


7







gaps so that a package of compromises and a feasible im-
plementation plan can be developed.
While the professional backgrounds of intervenors are
diverse-social and natural scientists; there are no law-
yers so far-the intervenors share a common characteris-
tic, prior involvement in public affairs. They are not
ivory-tower policy analysts but rather individuals who
have developed skills to win the trust of feuding groups
and to craft compromises. These skills are more important
than expertise in a particular environmental problem,
though intervenors should be aware of the dimensions of
environmental disputes and should have access to inde-
pendent technical experts.
Until third-party intervention is better known, mediators
will also serve as educators, explaining the potential
strengths and weaknesses of their activity. They must sell
the process to prospective disputants, rather than wait
for disputants to approach them, but this role will change
as greater awareness of the process develops.
There are advantages and disadvantages to be considered
when choosing between a local and an outside mediator:
an outsider generally has an easier time maintaining his
neutrality and is likely to approach a case with fewer
preconceptions, whereas a local intervenor knows the
protagonists better and can use his already established
contacts to speed negotiation. There are no hard and fast
rules here, but one should be aware of the probable con-
sequences of choosing either kind of mediator.
Timing of intervention. The appropriate timing of inter-
vention is highly variable: fact finding can be required
during any phase of conflict resolution; conflict avoid-
ance occurs during program and project planning, when
alternatives can be examined; conciliation occurs after a
project is developed but before a public decision is
made-it may not settle the dispute, but it can clarify the
issues; and conflict resolution occurs only after an im-
passe is reached and polarization has developed, making
issue and interest identification somewhat easier. Timing
is partially circumstantial-it may be simply a matter of
when the mediator comes on the scene, for example-
and partially discretionary, since some mediators will only
work on cases which have reached an impasse. The ad-
vantage of waiting for the impasse's narrowing of issues
must be balanced against the increase in rigidity and
against the advantages of conflict avoidance, such as the
availability of more alternatives and the lack of substantial
commitment to a particular plan.
Participant selection. Participants should be selected only
by the mediator. All interests must be represented, al-
though all parties do not have to participate directly.
Participants can informally represent general constituen-
cies rather than formally represent particular organiza-
tions. The key to selection of participants is balance. No
particular interest should be permitted to dominate the
mediation sessions.
Special efforts must be made to hold down the number of
participants in face-to-face sessions in order to assure
speed of discussion and to facilitate in-depth discussion.
To keep the number of direct participants small, the
mediator may convene additional sessions with other
groups and obtain a consensus regarding particular points


in contention. Another strategy is to suggest that caucuses
of related interest groups be held to develop common
bargaining positions and thereby reduce the number of
statements necessary to arrive at a settlement.

Use of technical experts. Technical experts should not be
granted participant status during mediation sessions. They
should serve at the discretion of the mediator, rather
than as "hired guns" of the disputants; if properly used,
technical experts can identify new options and clear up
misconceptions. They are of crucial importance for asses-
sing the economic and physical feasibility of proposed
settlements. Yet it is important that the mediator not per-
mit technical issues to obscure the fundamental socio-
economic value conflicts between disputants.
Implementing settlements. The implementation of settle-
ments is related to the initial assessment of whether a
conflict is amenable to compromise, since mediation
settlements are voluntary. Once intervenors are accepted
by disputants, however, they require sanctions to imple-
ment the recommendations arrived at through negotia-
tion. Sanctions may be either official authorizations from
chief executives or other decision makers, or unofficial
regular briefings for officials or their senior aides. It is
vitally important that the settlement plan be acceptable
to political officials, for implementation is political rather
than legal, and political support provides the intervenor
with the clout to urge concessions from the participants,
as well as the ability to promise enforcement. This is par-
ticularly important since the participants may be jeopar-
dizing their position in any future legal cases and will
need a good reason for surrendering their bargaining
leverage to the opposition. It should be noted that this
sanction is related to implementation, not to deciding
what the settlement will be.
Implementation is facilitated when participants represent
general constituencies rather than specific organizations;
under such an arrangement, participants can return to
umbrella coalitions and seek wide endorsements of a set-
tlement. The breadth of those endorsements is important,
since mediation does not negate the right of an individual
or group to file an environmental lawsuit. However, no
successfully settled cases have thus far been contested in
the courts. It is still unclear how a mediation recom-
mendation will influence judicial decisions if an irate
group should legally contest the settlement.

Confidentiality and the mass news media. Confidentiality
allows participants to "test the water" for concessions
which at first glance might appear unacceptable but,
when viewed again and taken as part of a set of mutual
concessions, might become acceptable.
As points of agreement are negotiated, it may be useful
to allow reporters to communicate such positive informa-
tion, much as participants in labor negotiations stress
points of agreement when dealing with the press. But
great care should be taken to determine whether confi-
dentiality should be dropped, and all participants should
agree to any such decision. This can only be done on a
case-by-case basis, throughout each dispute.
Since the prospects for future intervention will depend
on public acceptance of mediation, televised sessions,







if appropriate, may serve to educate the public about
the intervention process.
Institutionalizing and financing interventions. Current
intervention services are pilot efforts which may or may
not become institutionalized. They have been financed
by seed grants from private foundations and have used
both university and nonprofit corporation bases. Any
future institutional arrangements should similarly guard
against the misperception that mediators work for a par-
ticular agency or group. Likewise, financial arrangements
must guard against direct support for an intervenor by a
disputant. All parties should be expected to provide at
least token support, and financial arrangements should be
made explicit at the beginning of mediation.


Future mediation services may be financed through direct
fees, through public funds for regional panels of media-
tors-which might be administered by state mediation
boards or by an independent organization such as the
American Arbitration Association-or perhaps through a
conflict resolution insurance premium for private cor-
porations and public interest groups which may eventual-
ly require the services of mediators. All three funding
systems would require guarantees that no particular
group could dominate the deliberations. O

Laura M. Lake is adjunct assistant professor of environmental sci-
ence and engineering at the University of California, Los Ange-
les.


Consensus Building: Mediating Energy, Environmental, and

Economic Conflict

Peter B. Clark


New England must make major structural changes in
its economy, way of life, and especially sources of
energy because of its overreliance on imported oil.
When this became apparent in 1973, no mechanism exist-
ed for resolving regional energy issues or for building
consensus behind new strategies. To respond to such
needs, the Center for Energy Policy, based in Boston,
was organized as a nonprofit, publicly supported group
of professionals who would address problems of energy
use and supply through a multidisciplinary program of
research, evaluation, policy deliberation, and public edu-
cation. As a result of their experience in evaluating oil-
to-coal conversion policies in New England, staff mem-
bers of the center believe there is a need for an inde-
pendent intermediary to work with diverse and often
conflicting parties to develop and resolve major issues of
public policy.
In the case of New England's conversion to coal, the
parties involved are the region's power industry, the
federal and state regulatory agencies, the economic inter-
ests (fuel suppliers, the transport industry, and electricity
consumers, among others), and the communities whose
environments are most likely to be affected by the con-
version.
The issue of coal conversion has not received widespread
discussion in the press. It is, however, an issue which will
become more prominent in the next few weeks as the
Federal Energy Administration (FEA) orders many New
England electric generating plants to substitute coal for
imported oil. The Center for Energy Policy and its special-
ized policy arm, the New England Energy Policy Council,
have used the past year to work with the region's decision
makers to clarify the underlying issues, in order to deal
with the situation as early as possible.
S The Center's Objective: Consensus Building
A sustainable working policy consensus is often difficult
to achieve because it must be established among groups
normally perceived to be in fundamental conflict. Con-


sensus formation is a dynamic process in which members
of the center staff act as neutral facilitators to establish
communication among the parties polarized around a spe-
cific policy issue. A basis for consensus is created by ob-
taining agreement among the conflicting parties repre-
senting the primary economic, environmental, energy,
and public interests of New England on problems which
they agree are basic to the region's balanced develop-
ment.
The center staff has used a process of conflict resolution
involving formal working groups with special knowledge
of each facet of the problem under study. As the staff has
focused more and more on this process, it has become
evident that the center is performing the role of mediator
among special interest groups. At first this mediative role
applied only to the interests represented in the Energy
Policy Council. More recently, however, the staff has per-
formed a similar role among the regulatory and technical
specialists responsible for evaluating issues for New
England's decision makers.
The Coal Conversion Issue in New England
In 1974, as a first step toward reducing dependence on
imported oil, Congress passed the Energy Supply and
Environmental Coordination Act (ESECA). In essence,
ESECA provides FEA with the authority to increase the
use of coal in major oil and natural gas burning installa-
tions, including power plants, and at the same time gives
the Environmental Protection Agency the authority to
apply to those installations such environmental require-
ments as necessary to protect public health.*

*None of the 74 power plants ordered to convert to coal since
1975 have complied, because of their opposition to the ESECA
program. On March 15, 1977, Senator HenryJackson therefore in-
troduced legislation (S 977) to provide a mixture of incentives
and penalties designed to speed the use of coal. President Car-
ter's energy team is likewise proposing another set of stimulants
to encourage the substitution of coal for oil and natural gas as
boiler fuel.







Resistance to the ESECA conversion orders is expected to
be especially strong in New England. Most utilities prefer
to reduce oil dependence by investing in new nuclear
plants rather than retrofitting oil-fired plants to burn coal.
Environmentalists fear that a return to coal in New Eng-
land would signal the abandonment of hard-won im-
provements in air quality. Members of the public are con-
cerned that they will eventually pay the price of coal
conversion in the form of increased electricity rates and
environmental damage. Business and industry view the
ESECA strategy as an interim solution at best, requiring
risky capital investments and inflexible regulatory involve-
ment in their operations.
ESECA calls for a complex, multistep procedure for deter-
mining which plants should be forced to convert to coal.
Complexity is created by the involvement of multiple fed-
eral agencies in issues requiring a compromise between
their specialized regulatory missions and by the overlap-
ping federal and state responsibilities for environmental
decisions.
In February 1976, FEA asked the Center for Energy Policy
to help identify the obstacles to coal conversion in New
England. At the beginning of the four-month contract
period, the center set up four specialist task forces to
identify the obstacles to practical conversion. These task
forces then prepared a background report for FEA which
discussed the underlying environmental, economic, and
energy issues and suggested a plan of action.
Simply carrying out the determinations of environmental
and economic practicability required by FEA will not
answer the question of whether a project is acceptable
to the community of interests found within the states of
New England. For this reason, the center set out to see
whether the principal formulators of the region's energy,
environmental, and economic policies could, by working
together, arrive at a means of complying with the con-
version orders which each of the interests would find
acceptable.
An Integrated Approach
The responsibilities of regulator, planner, and utility man-
agement are not the same. Regulatory agencies-in this
case, the state and federal environmental control agen-
cies-view their role as maintaining restrictions and im-
plementing the law. ESECA requires the FEA and the com-
pany to plan the conversion to be practicable. But con-
verting a large number of power plants to coal requires
the integration of company plans into a regional program.
The dilemma is how to get regulators to recognize the
influence they have on long term planning and how to
get the planners to take account of the need for regula-
tory enforcement and the operational and financial limi-
tations of the utility.
In the last six months a single task force has continued
to address the problems anticipated in the conversion of
New England's largest fossil-fueled power plant-Brayton
Point. The utility and the regulatory and planning agen-
cies are now in basic agreement on the factors likely to af-
fect the economics, operating efficiency, and environ-
mental impacts that would result if the plant were con-
verted to coal.
There remains the task of agreeing on the conditions
under which the conversion will take place: the chemical


specifications of the coal, the type of pollution control
equipment required, penalties levied or actions taken
against the utility in the event of a violation, the effect of
new nitrogen oxide standards and sulfate standards, nui-
sance conditions, approval for ash and sludge disposal,
impact on the utility rate base, number of units and
schedule for conversion, and so forth. Environmental
mediation skills will be used to help the parties devise,
refine, and negotiate the terms of an agreement they all
can support.
The Mediator as Ombudsman
Environmental mediation involves entering a multidimen-
sional conflict in order to help bring about a resolution
that all sides find acceptable. Such resolution requires
that public officials and private interests accept a number
of complex tradeoffs between energy, environmental,
and economic objectives. It is not the mediator's function
to play the traditional conciliatory role between two dis-
putants. Rather, the role is more that of ombudsman,
acting to keep the parties communicating and guiding
their communication. The mediator offers no solutions.
The conflicting parties devise their own resolution of the
issues involved in the dispute. This process guarantees
commitment to the solution.
Misunderstandings are typically caused by imbalances,
or asymmetries, among the various groups required to
reach agreement. The parties may have greatly different
levels of accessibility to information, or there may be an
unevenness of funds for investigating the consequences


iI


Coal conversion orders will apply to electric generating plants.







defense may be a NEPA suit. In addition, the risks in-
volved in decision making vary considerably between the
company that must finance the conversion and those
regulatory agencies that must guarantee the conversion's
acceptable effects on the public health and the environ-
ment. Finally, the various participants place greatly differ-
ent values on the resources being allocated, such as in-
vested capital, labor, fuel costs, natural resources, and en-
vironmental conditions.
Situations Where Environmental Mediation
Can Be Applied
Mediation processes can be used in a variety of circum-
stances to reform and improve established procedures.
The objectives of mediation are to establish a more ef-
fective environmental decision process and to produce a
socially more acceptable solution. The conflict may in-
clude the parties represented in a regulatory process;
the regulatory process may be a licensing proceeding, an
EIS review, or, in this case, the application of ESECA.
The interests in conflict may also include public agencies
with differing constituencies and missions. For example,
a public utility commission views its mission as the assur-
ance that the power needs within its jurisdiction are met,
and that as good a balance as possible is struck between
the interests of the utility and the interests of its con-
sumers. The state and federal environmental protection
agencies, however, may subordinate power needs to pol-
icies designed to maintain water and air quality. The state
water rights agency may have yet another set of goals and
statutory mandates. Conflicts naturally arise when the
laws require two or more agencies with conflicting re-
sponsibilities to share in a decision.
It is my hypothesis that environmental regulators must
also act as resource planners with respect to future op-
tions. Policy planning requires an appreciation of the
alternative uses of resources, and an appreciation of a
world where the restrictions can vary. Effective resource
management does not lead to environmental compro-
mise. It does lead man to understand and account for the
sensitivity of his place in the natural environment. I feel
that if an environmental regulator's and energy planner's
perspectives and functional missions remain fundamen-
tally different, then the execution of their individual
responsibilities may lead from incompatibility to conflict,
and to a costly standoff.
Institutionalizing the Intermediary Process
In the environmental field, the usual method for repre-
senting the public interest is to institute a commission
which is representative of its collective constituency.
Whether a public utility commission, an energy facility
siting council, or an environmental advisory board, there
will Be two or three agency heads and several lay mem-
bers representing special groups such as labor, industry,
conservation, health, and the consuming public. This
structure for public participation, involving permanent
of a given decision. In analyzing the impact of coal con-
version, for example, there is a difference between the
amount of data and technical services available to power
companies, and the data and funds available to the state
agencies responsible for preparing environmental impact
statements (EIS's) on the conversion. Almost no informa-


tion is available to citizen action groups, whose only
voting representation on a policy decision commission,
has been the commonly accepted solution wherever in-
terests need to be reconciled or need to be brought into
the decision forum.

Such a commission normally deals with environmental
and consumer policy as an adversary proceeding. This
troubles those who argue that government decisions
should not reflect the voting power of the stake holders.
Instead, they recommend, public policy should be deter-
mined in an impartial manner that relies on less subjec-
tive determinations of value. Therefore, it is often felt
that a regulatory requirement, a licensing decision, or the
establishment of environmental standards is properly the
job of impartial government officials, rather than a con-
test among vocal and powerful stake holders. "Decisions
by decibels" often reflect the biases of the political
choices made when deciding the original composition of
the board. Government should implement policies that
balance the interests of all, including the interests of a
majority of the population as well as the interests of those
directly affected as citizens and consumers. The groups
which compose the public interest will change from issue
to issue.

Given the need to determine the changing public inter-
est with respect to energy and environmental issues,
perhaps a new form of public participation, a temporary
working commission, could be an important counterpart
to present institutions. A permanent staff of facilitators,
with a range of critical skills, would be an effective agent
for resolving policy disputes which arise when imple-
menting environmental restrictions, in the preparation of
an EIS, or when making a technology assessment. The
composition of the deliberative body would be changed
from issue to issue, drawing from the permanent pool of
facilitators. Rather than freezing the distribution of power
among those represented in a permanent commission, a
flexible method should be found, one which could bring
together the critical interests which vary from case to
case.
As an example, public participation would be valuable
in the energy, economic, and environmental analysis
required before licensing a nuclear power plant or off-
shore tanker terminal. If those responsible for the prep-
aration of impact statements had an institutional method
for eliciting constructive public participation at an early
stage, much of the criticism that is reinforced by interven-
ors, public petitions, and editorial comment could be
avoided. I use the EIS as an example because an EIS prep-
aration signals the beginning of a decision process. A
consensus-building arrangement, orchestrated by inde-
pendently supported environmental mediators, could be
used to arrive at tradeoffs between conflicting inter-
ests. 0
[The article by Malcolm D. Rivkin in this issue discusses
the uses of environmental impact statements in conflict
resolution. -Ed.]


Peter B. Clark is executive director of the Center for Energy
Policy.


11







Buying Off the Neighbors: Negotiated Private Settlements of

Development Disputes in Japan

Fred P. Bosselman


he Japanese traditionally try to resolve disputes by
consensus. To achieve such an agreement the par-
ties deliberately avoid discussing issues of right and
wrong, and immediately try to reach some compromise.
A familiar Japanese proverb says, "In a quarrel, both
parties are to blame." The person causing the injury is
expected to apologize and to exhibit an attitude of be-
nevolence, no matter how rich or powerful he may be.
On the other hand, an injured person has an equally
strong obligation to accept a proffered apology, if of-
fered with the proper attitude and accompanied by com-
pensation in a reasonable amount. To hold up a person
for unreasonably high compensation is as antisocial as to
refuse to pay compensation. In traditional Japanese cir-
cles going to court, rather than accepting a proffered
apology and accompanying compensation, was a violation
of the social norms.
The idea of "compensation" in traditional Japan bears
little relation to the American concept. The money or
property offered to the injured party was known as a
mimiakin, and was more of a gift-a symbol demonstrat-
ing the benevolent thoughts of the giver-than an at-
tempt to make the injured person whole. The compensa-
tion was moral rather than economic. Thus gifts of small
value often redressed great economic losses. To appreci-
ate just how little money was involved, consider the vic-
tims of the infamous mercury poisoning in Minamata. In
1959 the victims of this totally disabling, incurable disease
initially accepted a settlement proposed by a mediation
committee that would pay each adult victim $280 annual-
ly and each child victim $83 annually.
These Japanese traditions-consensus-seeking and gift-
giving-give the development process in Japan its own
peculiar character. Builders are eager to appease neigh-
bors who are even slightly inconvenienced by construc-
tion projects. A visiting American whose rented apart-
ment happened to be next door to a bank under con-
struction was surprised to receive frequent visits from an
officer of the bank, who brought, among other things, a
case of Pepsi-Cola and a department store gift certificate.
Many local governments have adopted guidelines requir-
ing builders to obtain the consent of all neighbors before
applying for a building permit. For example, the building
laws of the city of Atami, a resort town on Japan's Pacific
coast, contain guidelines asking the builder to obtain
consent from neighbors affected in any of the following
ways: "from shadows from the project striking neighbor-
ing property; from unusual winds generated from the
construction; from interference with scenic views; from
direct interference with television or radio reception;
from noise and pollution from traffic around the site."
These guidelines work smoothly where the traditional
Japanese attitudes prevail. But attitudes are changing, as
the following example from Atami illustrates.
Mr. Shigeru Baba owned the Minoya Inn, a traditional
Japanese inn built on the side of a steep cliff overlooking


the ocean. The five-story structure was flattened against
the cliff, so that all rooms faced beautiful Atami Bay. In
the morning, guests would wake to the orange rays of the
rising sun and relax at the open windows. The property
between Minoya Inn and the harbor was purchased by
Ryuuichi Fujima, a man Baba considered an old friend.
Fujima had just sold another inn he had owned and op-
erated all his life, and was eager to move forward quickly
with the construction of a new hotel.
In an earlier era, Fujima would undoubtedly have sought
and obtained his permit from the local authorities with-
out difficulty since the project was consistent with local
zoning. But Fujima's proposed 11-story structure would
totally block the sunlight and view from most of Mr.
Baba's rooms.
Because of the city's guidelines, Fujima knew that he
would have to explain his project to his neighbors and
obtain their consent. Fujima paid frequent visits to the af-
fected neighbors and successfully gained the cooperation
of everyone except Baba. The spectacular harbor view,
the sunrises, the moon coming up over the rolling Pacific
-these would be lost, Baba argued, and with them would
go Minoya Inn's appeal to tourists.
Fujima reduced the height of his hotel and made other
alterations to lessen the impact, but he could not gain
Baba's approval. Therefore, when Mr. Fujima presented
his architect's drawings and the neighbors' seals of con-
sent to Atami's land use planning board, one seal was
missing. The board was faced with the first absence of
unanimous consent to a project subject to the guidelines.



In traditional Japanese circles, going to court, rather
than accepting a proffered apology and compensa-
tion, was a violation of the social norms.



The board directed Fujima to hold two formal discussions
with Baba, even though the two had discussed their dif-
ferences more than 20 times. The meetings could pro-
duce no compromise formula. Baba was demanding com-
pensation sufficient to guarantee a livelihood for his chil-
dren and their children. Fujima, on the other hand, felt
he had already conceded much by eliminating the four
top floors from his original plan. He was convinced that it
would be impossible to make a living, let alone repay his
loans, with a structure any smaller than seven stories.
Finally, in July 1974, the board decided to issue the per-
mit, because the application met all the standards of the
Building Standards Act. The city implored Fujima to cut
off yet another story so that only the view from the first
floor of the Minoya would be completely blocked. Fu-
jima agreed to this so that construction could begin, even







though he believed a further height reduction could
bring the hotel's operations to a marginal level. It was on
the first floor of Baba's inn that the baths were located,
however, and the view from the bath was highly prized.

In July 1975, Baba filed suit for an injunction to halt con-
struction of Fujima's hotel. Taking such a matter to court
is considered disgraceful to many older Japanese, but
this attitude is not as strong as it once was, and Baba was
sufficiently upset to brave the censure of his neighbors.
Meanwhile, a somewhat similar case had arisen in Musa-
shino, a suburb of Tokyo. The city of Musashino had
adopted guidelines generally similar to Atami's. A local
builder, Yamamoto Kensetsu, built a five-story apartment
house in violation of the local guidelines because he
could not get the neighbors' consent. When the building
was complete, the neighbors passed out leaflets to
prospective tenants notifying them of their landlord's
antisocial conduct. The city, irate over Kensetsu's breach
of the guidelines, refused to extend water to the building.
Kensetsu responded by hooking up garden hoses be-
tween the building next door, which he owned, and the
water pipes of the new building.
The city then refused to provide sewer connections.
Kensetsu responded by tapping in his own connection to
the city sewer. At this point the mayor of Musashino,
Kihachiro Goto, applied his own brand of self-help. He
drove up in a ready-mix truck, backed it up to the man-
hole in front of Kensetsu's building, and filled the sewer
with concrete. Kensetsu parried that thrust by diverting
the sewer to a pit he dug in the backyard.
While this battle raged in the streets, Mr. Kensetsu's at-
torneys were in court arguing that he had complied with
all applicable laws and deserved the occupancy permit.
The city argued that construction of Kensetsu's building
deprived the neighbors of their sunshine in violation of
their constitutional rights, and that the guidelines were
legitimate means of protecting those rights.

The court agreed that the building complied with all ap-
plicable regulations. It held that the guidelines were un-
authorized and without force of law. Nevertheless, the
judge put great pressure on the parties to settle the case.
On Saturday, December 20, 1975, after all-night talks in
the judge's chambers, the builder agreed to pay 10
neighbors about $1,000 each and pay about $3,500 to the
city. The city agreed to supply water and sewer service,
and the case was settled.

When word of the court's ruling in the Musashino case
reached Atami it merely confirmed the general suspicion
that the city's guidelines had no force of law. Two days
after the Musashino decision, the judge in Atami ruled
that Fujima's project was in accordance with the code and
could proceed. The judge suggested that the parties get
together and agree on an amount of damages to be paid
to Baba, without specifically ruling that he had any legal
right to receive such damages.

, Mr. Fujima offered $17,000 compensation, and Baba's
lawyer advised him to accept the offer. But Baba wanted
well over $100,000. He then hired a new lawyer, and
at this writing the case remains unresolved.


As this story illustrates, the traditional Japanese system of
resolving disputes is beginning to break down. It worked
as long as most Japanese were willing to accept small
amounts of compensation for injuries suffered in the
cause of progress. As recently as the sixties, development
was a matter of national patriotic pride. The government
had embarked on a massive program to industrialize
Japan, and vast areas of wetlands were reclaimed and
developed as part of the national development plan.
Given this attitude, developers and local officials were
usually able to work out a consensus to encourage
growth in the national interest. Planning and zoning
regulations were designed from this point of view and
usually presented little impediment to a developer's pro-
posals.
In the late sixties, however, Japan suffered some of the
most serious environmental damage of any developed
country-heavy metals, chemicals, and pesticides killed
and maimed hundreds; the fishing industry was seriously
endangered.
Japan is now littered with construction projects halted in
midstream while attempts are made to resolve neighbor-
hood conflicts. Freeways leading nowhere are common,
and the famous new Tokyo airport, substantially complete
since 1973, has yet to see its first commercial flight be-
cause of unresolved disputes with neighboring farmers.
The idea of negotiated private settlement of disputes
appeals to American developers fatigued by extensive
regulation and nostalgic for the days of the free market.
But if the injuries caused by development were com-
pensated at a level comparable to awards given by Ameri-
can juries for automobile accidents and medical malprac-
tice, the free market might strangle development more
effectively than existing systems of regulation. 0

Fred P. Bosselman is a partner in the Chicago law firm of Ross,
Hardies, O'Keefe, Babcock & Parsons and is the author of numer-
ous articles and books on land use controls.
As counselor to the Conservation Foundation's International
Comparative Land Use Program, Bosselman has written In the
Wake of the Tourist, a book about the environmental impacts
of tourist development, scheduled for publication in the fall of
1977 by the Conservation Foundation, 1717 Massachusetts Ave-
nue, N.W., Washington, D.C. 20036. This article is adapted from
material in the book.


Environmental Mediation:

Potentials and Limitations

Gerald W. Cormick
Leah K. Patton
The University of Washington's Office of Environmen-
tal Mediation recently resolved a dispute over a
major freeway project for the Seattle metropolitan
area. Controversy over the plan to construct a $500 mil-







lion addition to the highway system had tied up trans-
portation planning for nearly 20 years. The experience of
this pilot mediation project may help others understand
the potentials and limitations of environmental mediation
in conflict resolution.
The Office of Environmental Mediation was established
to experiment with techniques that will assist disputing
individuals, organizations, and agencies in reconciling
their differences. Supported by the Ford and Rockefeller
Foundations, the office is part of a continuing attempt to
apply third-party dispute resolution techniques to non-
labor social conflicts.
Mediation is a specifically defined dispute resolution
process which has received broadest application in labor-
management disputes. The following definition describes
several of the most important aspects of the mediation
process and is consistent with definitions used in labor-
management, international, and other social dispute set-
tings. It is used by the Office of Environmental Mediation
in describing the mediation process to disputants.
Mediation is a voluntary process in which those involved in a
dispute jointly explore and reconcile their differences. The
mediator has no authority to impose a settlement. His or her
strength lies in the ability to assist the parties in resolving
their own differences. The mediated dispute is settled when
the parties themselves reach what they consider a workable
solution.

This brief definition contains a series of important con-
siderations:
Involvement of the parties in the mediation process
is voluntary.
Exploration of the issues will be carried out jointly
by the parties, although it may be supported by cau-
cuses of one or more parties with the mediator.
*The mediator has no authority to impose settlement.
The office makes a further commitment that if joint
agreement is not achieved, neither the office nor the
mediators it appoints will make public recommenda-
tions or report on areas of agreement or disagree-
ment.
*The mediator facilitates the negotiation process by
assisting the parties in reaching a resolution accept-
able to them.
*The mediator shares the responsibility of ensuring
that any agreement reached represents a workable
solution-one which is politically, physically, and fi-
nancially feasible. This responsibility on the part of
the mediator is inversely proportional to the experi-
ence and sophistication of the least skilled party to
the dispute.

Of course, the use of mediation services in environmental
disputes differs substantially from their use in the labor-
management dispute model. In contrast to the two well-
defined and balanced adversaries in labor-management
disputes, for example, environmental conflicts typically
involve a number of parties of varying status and power,
ranging from citizen groups and private corporations to
public agencies and elected officials. And whereas in
labor-management relations legislation and experience
have evolved into a clearly defined framework for the ne-
gotiation process, the framework for negotiations and


third-party intervention in environmental disputes must
be created as an integral part of the dispute resolution
process. Moreover, while in the labor-management rela-
tionship such issues as wages, management rights, and
due process lend themselves to continuing review and re-
negotiation, environmental disputes often concern issues
much less reversible, such as major construction or de-
pletion of resources.
The experience of the Office of Environmental Media-
tion, in both formal intervenor and informal advisory
and analytical roles, indicates that at some point in the
development of many environmental disputes, the nego-
tiation process facilitated by mediation becomes an ap-
propriate means of resolving the conflict. We have devel-
oped a number of criteria as our guidelines for evaluating
the applicability of mediation in specific environmental
disputes:
*The mediation process is most appropriate at the
point in a dispute when the issues have been defined,
the parties are visible and highly involved, and there
is some sense of urgency in resolving the conflict.
Such circumstances typically occur near the point of
impasse.
In order that the parties to a dispute will be willing
to enter with good faith into the negotiations and
mediation process, there must be some relative bal-
ance of power in which it is recognized that the
parties each have some ability to exercise sanctions
over the other.
*Mediation is appropriate where there is reasonable
assurance that the responsible authority or authori-
ties will implement an agreement reached by the dis-
puting parties. By engaging in discussions which
move beyond previously held public positions, the
parties may compromise their future stance if such
assurances have not been given.
The Interstate 90 Dispute
The original plan to extend Interstate 90 westward from
the east side of Lake Washington into downtown Seattle
was approved nearly 20 years ago. That plan envisioned
26 lanes crossing the lake on various bridges, but over the
years the project was scaled down. The 1975 design of the
state highway department called for 10 lanes: four auto-
mobile lanes in each direction, with 2 transit lanes in the
center-an arrangement commonly referred to as 4-2T-4.


C







Actively opposed to the 4-2T-4 proposal were various
environmental and transit-oriented citizen groups and
appointed and elected officials from the city of Seattle.
On the other hand, the highway department's design was
supported by the commuter cities of Bellevue and Mercer
Island. The local county, King County, was generally in
favor of the proposal, while Metro, the countywide transit
agency, needed the transit capacity and was willing to
support any reasonable design which included designated
transit lanes.
Events had reached an impasse by the beginning of 1976.
The highway department had issued a new draft environ-
mental impact statement, required by the courts as a re-
sult of a citizen group's lawsuit. The state highway com-
mission, which has the ultimate decision-making author-
ity, was reviewing hearing records and the response to
the draft impact statement to decide whether the 4-2T-4
design should be the basis for the final environmental
impact statement. The commission realized that the full
support of all local jurisdictions would be required in
order to receive state and federal money for the project.
However, attempts at accommodation among the local
jurisdictions had failed.
The Office of Environmental Mediation first began to
consider mediation of the 1-90 controversy in mid-Febru-
ary 1976, after being approached by various parties to the
dispute. Discussions with all the major parties and in-
dividuals involved made it apparent to the mediators that
the dispute had reached a stage where use of the media-
tion process was appropriate. An impasse clearly had
developed. The issues were defined and the parties


highly visible. None of the parties were achieving their
objectives: additional automobile capacity was not being
constructed, nor was transit being improved across Lake
Washington. All parties to the dispute felt a sense of
urgency, as the prospect heightened that federal funds
for the 1-90 project would be lost. With the informal
concurrence of all parties, the governor appointed two
mediators from the Office of Environmental Mediation in
March 1976.
The immediate participants in the 1-90 mediation process
were elected officials formally representing the four
political jurisdictions, and representatives of the state
highway department and Metro. The state highway com-
mission was represented through the director of the
highway department. The state highway commission had
endorsed the mediation process and was prepared to im-
plement the results of such a process, insofar as it was
legally possible. Because the commission was represented
at the negotiating table, the participants were protected
from the possibility that an agreement might be reached
which was not implementable.
During the many months of mediation, the formal nego-
tiating sessions were open to the public, attended by the
various advocates, and covered by journalists. Parts of
several sessions were televised. The mediators maintained
communications with the various citizen groups to enable
the groups to work effectively through their elected rep-
resentatives. Outside the formal meetings, the mediators
carried messages, researched points of concern, and initi-
ated discussions among those directly involved in order
to clarify positions and perspectives. Agreement in prin-


Morning rush-hour traffic in the Seattle area. Mercer Island can be seen in the distance.







ciple was achieved in early November, followed by some
language clarification and formal ratification by the sev-
eral bodies. On December 21, 1976, a "Memorandum
Agreement" was signed in a public ceremony presided
over by Governor Evans.



Unlike many other mechanisms for dealing with
disputes, mediation can be designed to suit the
individual conflict.



The agreement calls for a 3-2T-3 configuration, with spe-
cial provisions for access to the transit lanes for carpools
and general traffic originating on Mercer Island. Improve-
ments in the 1-90 facility are to be accomplished in con-
junction with major transit improvements in other urban
corridors and transit interconnections with the central
cities of Seattle and Bellevue. Provision is made for deter-
mining a means of limiting automobile access to 1-90 dur-
ing peak hours east of the presently developed suburban
areas. The facility will be depressed and then "lidded"
through parts of Mercer Island and Seattle to minimize
its impact on the surrounding communities and to permit
a variety of park, residential, and commercial develop-
ment on top of the corridor. Finally, provision is made for
joint committees, composed of citizens and elected offi-
cials, to assist in planning and to oversee implementa-
tion.
The agreement was developed as a package, and the lan-
guage specifies that the various components, such as


highway construction in the 1-90 corridor and transit im-
provements elsewhere, would proceed in concert. Fund-
ing must be approved for the entire 1-90 project, includ-
ing amenities, before construction begins. Thus, while
no elected body may bind its successors, the agreement
is designed to require the continued cooperation of the
parties, since implementation of the entire agreement de-
pends on the support of each party.
A Flexible Tool
The use of mediation for resolving environmental dis-
putes is still experimental, but one of the attributes of this
new process is the flexibility with which it can and should
be applied. Unlike many of society's other mechanisms
for dealing with disputes, mediation can be designed to
suit the individual conflict situation. In the 1-90 dispute,
for example, mediation took place primarily between
elected officials and agencies, while the mediators pro-
vided a link to concerned and powerful citizen groups. In
another conflict case in which the office was involved, the
central mediation effort was carried out between private
citizens, while mediators provided a link to elected offi-
cials and the responsible agencies.
It is to be hoped that the mediation process can be made
more widely available as a unique process for extraor-
dinary circumstances. If it is applied selectively and at the
request of all disputing parties, mediation can continue to
provide an important and workable mechanism for re-
solving environmental conflicts. O


Gerald W. Cormick and Leah K. Patton were the mediators of the
1-90 conflict. They are director and assistant director, respective-
ly, of the Office of Environmental Mediation.


Up-Front Resolution of Environmental

and Economic Disputes

Michael R. Greenberg
Donald B. Straus


he American Arbitration Association has helped
resolve many disputes. The great majority of these
cases involved a limited number of parties-labor
and management, for example-and easily identifiable
issues-such as wages, working conditions, and benefits.
AAA became involved in these disputes at the point of
impasse. Settlement was sought through arbitration,
mediation, and conciliation.
More and more disputes, however, are not solvable by
the mediator's last-minute intercession, especially when
both environmental and economic tradeoffs are at issue.
Such disputes often involve many parties, many issues,
and a complex range of implications. Some of the parties
have narrow interests, others have broad concerns. Some
parties are represented by a full complement of lawyers
and technical experts, other parties have no funds. And
some parties are local citizens concerned solely with


the decision's effect on a particular neighborhood, while
other parties represent county, regional, or state inter-
ests. In these situations, the last-minute introduction of
traditional procedures of conciliation, mediation, and
arbitration is unlikely to solve the problem.

The Adversary Method
The usual methods of resolving complex, multiparty dis-
putes are legal and political. Parties with sufficient re-
sources hire consultants, lawyers, and lobbyists to work
for their interests in the courts and political arenas. Tech-
nical issues-such as the number of jobs created or tons
of pollutants emitted-are usually made unnecessarily
controversial because the hired experts use data, assump-
tions, and methods to prove a point, not to estimate im-
pacts or to seek a workable solution. In other words, the
emphasis is on one side's winning rather than on all sides'







agreeing. Judges, often with the assistance of experts, are
left to decide which printout and experts make more
sense.
S While cross-examination is permitted in the courtroom,
and to a limited extent in an administrative hearing, the
formality of these procedures gives little opportunity for
constructive testing of new, alternative methods of con-
flict resolution. Persons without legal standing are ex-
cluded from the deliberations, regardless of how relevant
or valuable their knowledge may be to the decision. And,
in general, most of the parties leave dissatisfied with the
decision. Losers claim that their technical issues were not
adequately addressed, for example, or that some impor-
tant information was not considered. Even the winners
may be unhappy because of the court costs or because
of the expensive delay in resolving the issue. Society as
a whole may also suffer through the delays in important
resource management decisions.
We probably can look forward to more adversary con-
frontation, even though our courts are already choked
with cases, and even though, in many instances, court-
room decisions have disadvantages that could be avoided
by using other forums for dispute resolution. Courts must
fix blame and must require that information be presented
in black-and-white form. Court rulings are often inflex-
ible. Finally, and perhaps most important, they often un-
necessarily traumatize winners and losers to the point of
causing long-lasting rancor between them.



The traditional emphasis is on one side's winning
rather than on all sides' agreeing.



Up-Front Dispute Settlement
When decisions being made will have irreversible conse-
quences for future generations, surely the sharing of
goals, information, assumptions, and methods should not
wait for adversary proceedings. Some disputes can be
completely avoided and others settled more easily and
with less animosity if all interested parties are invited to
participate in the decision-making process from the very
beginning. Once assembled, the parties can concentrate
on developing a consensus on the information to be used
in making decisions. Failing a consensus, the differences
can be narrowed so that the parties develop an ability to
give and take, even to lose sometimes, and to recognize
that their opponents are not irrational. This procedure
will likely result in decisions of better quality.
Consensus is sought at all four stages of this decision-
making process:
Clarification of goals.
Explicit notation of the limitations of data.
Choosing of analytical methods.
Testing of the impact of alternative land use patterns.
Clarifying goals. Getting parties to agree on any but the
most general environmental management goals is diffi-
cult. Avoiding countless hours of adversary proceedings,


however, does not necessarily require a consensus on
goals; it does require that goals be defined in sufficient
detail that all parties can agree on the information and
methods to be used in determining the implications of a
goal. Without such a consensus on information, each
party will be inclined to choose information which suits
its goals, and the government agency with decision re-
sponsibility will be faced with selecting from among a
great deal of uncoordinated data. Some data may be re-
quired to address local goals, other data for state and re-
gional goals. Some information may focus on short term
goals, other data on long term concerns. Explicitly stating
goals will help responsible agencies set priorities for in-
formation collection and information management.
Explicitly noting the limitations of data. A second crucial
step is to define the usefulness of various kinds of infor-
mation for addressing specific questions. For example,
U.S. Geological Survey maps may be useful for determin-
ing the suitability of portions of different towns for de-
velopment. However, the scale of these maps limits their
usefulness for judging the impact of a specific develop-
ment on a few acres of land. By explicitly noting these
"obvious facts," which turn out to be not so obvious
when environmental impact statements are filed, one can
save many hours of argument and frustration.
Choosing methods of analysis. The third element of up-
front mediation is the seeking of consensus on methods
of analyzing impacts. One procedure may be most useful
for studying local carbon monoxide problems, for exam-
ple, while another is best for analyzing the diffusion of
suspended particulates. Some problems, such as the level
of photochemical oxidants, may defy quantification. Con-
sensus on the advantages and disadvantages of methods
can lead to the adoption by all parties of similar methods
of analysis, or at least the elimination of methods deemed
unacceptable.
Testing the impact of alternative land use patterns. Per-
haps the biggest challenge lies in seeking consensus on
the impacts of alternative actions. It may not be possible
to achieve consensus on policies or goals, but if the full
spectrum of impacts can be sketched, the decision-mak-
ing process should take on greater credibility and move
along more smoothly.

The Office of Coastal Zone Management (OCZM) of the
New Jersey Department of Environmental Protection
(DEP) provides a fertile ground for testing dispute settle-
ment procedures. OCZM's tasks are to prepare a manage-
ment plan and to evaluate applications for development.
These activities have produced conflict and will continue
to do so. Under a grant from the Rockefeller Foundation,
AAA has been testing the up-front resolution approach
under the auspices of OCZM. The experiment has been
conducted in two phases: first, data validation; and sec-
ond, impact testing for various development patterns.
Data validation. Over 100 different organizations, includ-
ing the Sierra Club, the American Petroleum Institute,
the U.S. Army Corps of Engineers, and county govern-
ments, were invited to participate at large meetings and
small specialized gatherings on specific sets of informa-
tion. The data validation phase consisted of four major
parts:


17


___~_ ____







Identifying data which should be collected.
Identifying the geographical and temporal limitations
of data.
Mediating disputes about specific data sets.
Recording the consensus decision and other opinions
about the validity of each data set.

At the initial large-group meetings, it was agreed that
data including but not limited to geology, groundwater,
land use, slope, and vegetation were necessary to answer
questions about which lands should be preserved. Sum-
maries of DEP's inventory of these data were circulated,
and participants were asked to review them before and
after the meetings. Data were divided into two broad
groupings: controversial and noncontroversial. Noncon-
troversial data were considered at large group meetings
and through the mail; controversial data were considered
at small meetings at which a consensus was achieved after
neutral, outside experts expressed their opinions. The
subjects of discussion at these small meetings included
such things as the relative accuracy of floodplain boun-
daries as derived by alternative methods.

The experiment with data validation was not as successful
as it might have been, because the parties had to consider
data without being able to relate the information to pos-
sible outcomes of DEP's coastal zone program. In essence,
data validation was too abstract for many of the nontech-
nical participants, who were primarily interested in the
outcome of management plans and permit applications.
On the other hand, most technically trained participants
were happy for the opportunity to express their opinions
outside the adversary process.

Testing the impacts of alternative patterns. Whereas gov-
ernment agencies and consultants have generally gone
their separate ways in selecting methods of analysis and
estimating the impacts of alternative developments, the
AAA model provides that all parties have access to the
same data and methods and conduct portions of the anal-
ysis together. The New Jersey coastal zone legislation
requires developments of a specific type and size to ob-
tain a permit from DEP and directs OCZM to develop a
long range management strategy for coastal areas.
Four decision-making aids have been designed by the
AAA research team to help OCZM meet these objectives.
A look at one area-the impact of alternative develop-
ment patterns on air quality-illustrates the way these
four aids work.
First, the team has developed a series of information
packages to address such considerations as how to esti-
mate the impact of alternative residential configurations
on, for example, air emissions.

A second means of speeding up the permit process is to
make an agreed-upon ambient data base available to all
parties. To facilitate this, the team collected ambient en-
vironmental and economic data for a single township.
These data were then stored in a computer and can be
retrieved in the form of maps and tables.
Third, the researchers prepared a programmed text
which shows the user how the impact methods are ap-
plied in the context of a specific permit case. The user is


thus able to follow the impact analysis on paper from
start to finish.
Fourth, the team prepared an automated computer ver-
sion of one of the information packages. While sitting at
a cathode ray terminal, the user enters the number of
dwelling units and type of heating system. Based on na-
tional averages and local data, the computer reports back
the projected air emissions caused by home heating and
automobile use. OCZM as well as opponents and pro-
ponents of the project can change such variables as fuel
type, number of dwelling units, and miles driven per
dwelling unit. An immediate response from the computer
enables the parties to make alterations until the proposal
falls within acceptable limits.
Exact predictions, agreed upon by all parties, are not the
goal. Rather, the team has attempted to depict the gen-
eral trend of impacts to the satisfaction of all parties.
Ideally, each party would enter variations of the long
range plan, the computer would translate the plans into
impacts, and these impacts would be simultaneously
viewed and debated by the parties. Thus the computer
acts as facilitator, not decision maker.
At the present, AAA is trying to devise simple computer
programs that can be used to respond quickly to a wide
variety of questions, so that debate and negotiation can
immediately follow interaction with the computer. Parties
should be able to combine maps dealing with such infor-
mation as geology, soils, and hydrology. The computer
should be able to zoom in on small sections of the map if
greater detail is desired, to print copies of maps, and to
show and print tables on various kinds of information-
water quality at a particular site,'for example. The user
should be able to add new data in tabular form, and he
should be able to modify and add to existing maps. At the
same time the computer is being used, the AAA team will
mediate questions ranging from the accuracy of a map
to the interpretation of implications.
The thesis behind the AAA research project is that costly
and frustrating adversary proceedings can be reduced,
and that better decisions can be produced, by seeking
consensus among disputing parties as early as possible
in the decision-making process. Interest in such efforts
has generally been high, and AAA has generally been
regarded as highly credible by the parties.
Two problems are apparent. First, the success of using a
neutral third party in environmental disputes depends on
the willingness of the citizen groups, government agen-
cies, and other participants to accept the third party as an
aid, rather than a threat, to the resolution process. When
third party and participant ideas do not match and cannot
be reconciled, the third party team must back away and
avoid interfering. Second, the cost-effectiveness of the
third-party role in general, and of the use of interactive
computer systems specifically, cannot yet be accurately
projected. As the project continues, AAA will have to
individually assess each dispute situation to see whether
the mediator-and-computer approach is feasible. 0


Michael R. Greenberg is professor of urban studies at Livingston
College, Rutgers University. Donald B. Straus is president of the
Research Institute of the American Arbitration Association.


I







The Coastal Development Review Process in New jersey:
Avoiding Disputes and Resolving Conflicts

David N. Kinsey


N ew environmental resource management laws that
change the ground rules for land use decision
making require new procedures to avoid disputes
and resolve conflicts when they arise. In New Jersey, the
Department of Environmental Protection (DEP) has insti-
tuted such new procedures-a project design and devel-
opment review process-as part of its ongoing program
of coastal zone management under the state's Coastal
Area Facility Review Act (CAFRA) of 1973. [CAFRA was
described in greater detail in an article by David N. Kinsey
and Malcolm D. Rivkin in the November 1975 EC. Ed.]

The System
The CAFRA statute gives DEP final jurisdiction over spe-
cific major construction proposals-including residential
projects of more than 25 dwelling units, marine terminals,
and nuclear power plants-in a legislatively defined area
encompassing 18 percent of the state. The permit applica-
tion and development review process under CAFRA has
five major predecision phases with opportunities for
avoiding disputes, as well as a postdecision stage which
provides a point for resolving conflicts administratively,
without recourse to the courts.
First, DEP strongly urges all prospective developers of
projects requiring a CAFRA permit to meet with DEP staff
at a preapplication conference to discuss frankly the con-
templated project, its location, its probable environment-
al impact, and the likely disposition by DEP of a permit
application. Staff use the adopted Interim Land Use and
Density Guidelines to evaluate the site and discuss with
the applicant the need for various environmental assess-
ments. Preapplication conferences may also be used by a
developer for assistance in selecting sites where coastal
development may be acceptable.
Second, applicants for a CAFRA permit must prepare an
environmental impact statement (EIS). This is the heart of
the permit application. A discussion of EIS requirements
at the preapplication conference enables DEP staff and
the developer to agree on the level of detail and areas of
emphasis to be included in the EIS, based on the sensitiv-
ity of the land and water features of the site and the
scope of the proposed construction. DEP staff then review
the submitted EIS and request additional information as
necessary from the applicant.
Next, DEP staff prepare a written preliminary analysis of
the permit application to provide the applicant and the
public with an initial appraisal of the application. The
preliminary analysis, while not required by the CAFRA
statute, helps avoid disputes by giving applicants and the
public an opportunity to consider DEP's views prior to the
required public hearing.
Fourth, an informal fact-finding public hearing is held for
each CAFRA permit application, focusing on the likely
approval, conditional approval, or denial of the applica-
tion as indicated in the staff's preliminary analysis. The
hearing provides a forum for public scrutiny of the devel-


opment proposal and of the likely DEP decision, well in
advance of the formal decision. The hearing and subse-
quent comment period allow both the applicant and the
public to bring new information to the attention of DEP
in order to avoid disputes. Until the final decision is
made, the developer may also modify an application,
based on the preliminary analysis and public reaction to
the original proposal.
Fifth, DEP reviews the submitted information and decides
to approve, conditionally approve, or deny the applica-
tion. The preliminary analysis serves as the starting point
for preparing the final decision.
In the postdecision phase, an applicant or any other in-
terested citizen or group dissatisfied with the DEP decision
may appeal the decision to a DEP hearing officer or to the
Coastal Area Review Board, composed of three state cabi-
net members: the commissioners of environmental pro-
tection, community affairs, and labor and industry. How-
ever, before the administrative appeals process is conclud-
ed, informal conferences and negotiations between DEP
and the developer or other dissatisfied persons may re-
solve the conflict. If the postdecision administrative ap-
peals processes do not satisfy all parties, the next step is
recourse to the courts.



The preapplication conference, preliminary analysis,
public hearing, and postdecision negotiations pro-
vide safey-valve opportunities to avoid disputes.




Case Studies
The preapplication conference, preliminary analysis, pub-
lic hearing, and postdecision negotiations provide safety-
valve opportunities to avoid disputes and resolve con-
flicts. The following examples illustrate this process:
Sites for onshore support bases. One of the development
possibilities facing the New Jersey coast is the location of
onshore marine service bases to support offshore oil and
gas exploration and development. The New Jersey coast
contains sites suitable for this form of waterfront industry
as well as land areas where this industrialization would
be incompatible with the built and natural environment.
The prospective developer of one onshore support base
took advantage of the preapplication conference to pre-
sent the case for his selected site-a 30-acre parcel of tidal
wetlands and undeveloped uplands on a barrier island
with a resort community. DEP staff reviewed the sensitiv-
ity of the site's land and water features and advised the
prospective developer that the selected site was not ap-
propriate for the proposed development. Staff also sug-
gested that the developer explore alternative, less environ-
mentally sensitive sites within the region. While the meet-


I __







ing may have disappointed the developer, at least he was
candidly forewarned of the likelihood that his CAFRA
permit application would be denied for the proposed use
on that particular site. The preapplication conference
served its purpose of avoiding a dispute in the permit
process. At the same time, using the preapplication con-
ference saved the developer from spending time and
money on costly and probably fruitless further develop-
ment studies.
Change from high-rise to low-rise mixed use. The preap-
plication conference can also let the developer know that
a dispute with DEP is unlikely. An informal but positive
staff appraisal enables a developer to proceed with a proj-
ect design and permit application submission with some
confidence of permit issuance. For example, in the first
denial under CAFRA, DEP rejected the proposed con-
struction of a 10-story high-rise apartment building on a
10-acre waterfront site in a low-rise, historic downtown
area. Two years later, the developer requested a preap-
plication conference to avoid a dispute with DEP on a
new design for the site. DEP staff reacted favorably to the
luxury restaurant, office, and residential complex pro-
posed for the site. The revised plan called for adapting a
Victorian manor on the site to a luxury restaurant, as well
as preserving a considerable number of trees. In short,
the developer had taken to heart some of the reasons for
the denial of the high-rise proposal. The preapplication
conference enabled the developer to share his revised
plan with DEP staff, gaining a measure of acceptance be-
fore presenting the plan to municipal officials.
Preserving trees and a public marina. The public scrutiny
encouraged by the preliminary analysis may encourage
a developer to modify the proposed site plan and permit
application before DEP makes its final decision. One de-
veloper of a riverfront site with an existing marina pro-
posed cutting down the remaining trees on the site,
building townhouses at the edge of the river, and turning
the public marina into a private club for the townhouse
owners. The DEP preliminary analysis focused on these
items, as did comments at the public hearing. Boy Scouts
testified on the need for public access to the marina. The
mayor urged DEP to deny the developer's application, de-
spite the fact that the municipality had previously ap-
proved it. Other residents expressed concern. The devel-
oper was silent at the hearing. Shortly afterwards, how-
ever, he revised the site plan to save trees, redesigned the
townhouses more in keeping with the appearance of the
riverfront, and proposed to maintain the marina as a pub-
lic facility. DEP then issued the CAFRA permit for the
revised project. The developer's responsiveness to the
concerns raised in the preliminary analysis and by citizens
and local officials permitted the matter to be resolved
prior to DEP's final decision. Again, a dispute was
avoided.

Revising a site plan. Under CAFRA, DEP's main concern is
where projects are located in the coastal environment.
However, once a location is deemed acceptable for the
proposed use, DEP turns its concern to the site-specific
details of the proposed development. In one application,
DEP approved a 700-acre expansion of a major retirement
community into a rolling pine and oak forest well inland.
The approval contained several conditions, including re-


quirement of the submission and acceptance by DEP of a
revised site plan to include a landscaping plan and an
open space and pedestrian path system. While the devel-
oper requested a formal appeals hearing before a depart-
mental hearing officer, DEP staff and the developer
worked to settle the matter without recourse to the hear-
ing. The developer added an architect-planner to the en-
gineering team that had prepared the site plan, hired a
professional forester, and submitted a sketch of a revised
site plan for informal DEP staff review. After the favorable
DEP staff reaction, the developer then submitted the for-
mal revised site plan, which DEP accepted. The developer
dropped the appeal, and DEP issued the permit. Postde-
cision negotiations thus provided a means of resolving
the conflict and avoiding an advisory hearing.

Lessons Learned
In the three and a half years of implementing the CAFRA
regulatory program, the Coastal Area Review Board has
heard only three of more than 100 decisions. All three
were decided basically in accordance with DEP's initial
decision. Two were appealed further to the courts.
The procedures used to avoid disputes and resolve con-
flicts in New Jersey's coastal development review process
depend on face-to-face contact between developers and
DEP staff, with appropriate opportunities for public scru-
tiny of the developer's proposals and DEP's actions. Flex-
ibility and responsiveness characterize the process, which
supplements municipal land use regulations through a
program of selective state land use control along the
coast. Frank give-and-take discussions within an estab-
lished procedural framework generally enable developers
and DEP staff to agree on acceptable land uses in the
coastal area, and thus to carry out the purpose of the
coastal management program. O


David N. Kinsey is chief of New Jersey's Office of Coastal Zone
Management.


New Jersey has developed a special framework for resolving con-
flicts about the use of coastal land.


U--~;:
hfr:

~Lc r.c-







Information Sharing and Conciliation:
Tools for Environmental Conflict Management

Susan L. Carpenter
W. J. D.Kennedy


A s competition increases for our limited natural re-
sources, the need will increase for creative respons-
es to environmental conflicts. In contrast to delay
tactics and costly litigation, which generally result in one
side's winning and the other's losing-or both sides'
losing-environmental conflict management offers an
opportunity to examine a broader range of issues, such
as community values and future goals. Such an approach
involves a larger number of individuals in the discussion
and can generate a variety of alternative solutions. It en-
ables participants to consider the implications of each
alternative and to provide options that allow each party
to gain something in the settlement. Three common ap-
proaches that can be used in environmental conflict
management are information sharing, conciliation, and
mediation. Information and conciliation are discussed in
this article; mediation, discussed here briefly, is the sub-
ject of an article by Gerald W. Cormick and Leah K. Pat-
ton in this issue. -Ed.]
Ideally, a conflict management organization is an objec-
tive third party which can be called on to intervene in a
present or potential dispute. To be effective, such an or-
ganization must establish and maintain a reputation for
neutrality which will enable it to gain the trust of all
parties involved in a conflict. The Rocky Mountain Cen-
ter on Environment (ROMCOE) was established to fulfill
this function.



The mediator has a broader base to work from, and
has more people on both sides who understand the
need to consider all alternatives and the legitimacy
of the other side's views.



In the Rocky Mountain area, at least, a change in attitude
seems to be taking place in environmental groups and in-
dustry. There is a broader band of moderation, a greater
willingness to listen to the views of the other side, and a
greatly increased understanding of the value of the neu-
tral party. The distance between the poles remains the
same, the extremes remain extreme, but the population
seems to have moved noticeably toward the middle. Pub-
lic interest groups generally seem more willing to consid-
er the options and to feel a responsibility for the econom-
ic consequences of the positions they take. Many busi-
ness executives now take for granted the need to observe
environmentally sound practices, and not just because
the law compels them to do so. Many have strong convic-
tions about environmental values themselves. The medi-
ators, therefore, has a broader base to work from, and has
more people on both sides who understand the need to
consider all alternatives and the legitimacy of the other
side's views.


Information Sharing
One approach to conflict management is to recognize the
potential for conflict and to provide information to all
parties who might be involved. Conflicts often arise from
the lack of information, or from misinformation, about
an event or issue. Information sharing provides an arena
for all interested parties to come together and exchange
their concerns and views. A conflict management group
may provide its own data and resource people and may
also use material presented to it. Information provided
by third parties must be carefully checked to ensure that
it is an accurate and balanced statement of the situation.
Information shared may include the status of current con-
ditions, the implications of continuing with current prac-
tices, and an enumeration of alternatives and their im-
plications. In many situations, a mechanism must be es-
tablished to enable individuals with differing positions to
exchange information in the future.
Mesa County has the longest average growing season -
188 days-of any county in Colorado. Ample water for ir-
rigation and an infrequency of windstorms and hailstorms
make the area an outstanding producer of fruits and
vegetables. The surroundings of mountains and spectac-
ular scenery attract many visitors and new residents. New
homes are usually built in the stream valleys, which are
also the most productive agricultural lands.
ROMCOE was invited by a group of Mesa County citizens
to organize a workshop to:
*Provide a forum for concerned citizens, decision
makers, researchers, farmers, ranchers, and devel-
opers and other landowners to exchange information
on the use of irrigated agricultural land.
Examine the extent and consequences of conversion
of agricultural lands to other uses.
Identify factors contributing to or inhibiting agricul-
tural land conversion.
Seek constructive alternatives to current practices
and policies in Mesa County affecting use of agricul-
utral lands.
The workshop was organized around small discussion
groups led by experts provided through ROMCOE.
Among the 300 area residents who attended the two-day
conference, knowledge of the subject ranged from total
lack of recognition of the implications of what was hap-
pening to the agricultural land base, to deep concern
about it. This wide variation in knowledge made it diffi-
cult to identify a level on which to share information.
Nevertheless, the workshop set the stage for the estab-
lishment of a broad-based Mesa County Agricultural
Lands Task Force, which has now been organized and
will serve as a mechanism for working out the county's
land problems through the sharing of information.
Conciliation
Conciliation is used to improve the attitudes different


1




































Houses encroaching on orchards in Mesa County, Colorado.
parties hold toward each other, for the purpose of en-
couraging reasonable discussion and, where necessary,
rational bargaining. It employs a range of psychological
techniques aimed at correcting perceptions, reducing
hostility and unreasonable fear, and clarifying differ-
ences.

In 1974, Colowyo Coal Company filed an environmental
appraisal report with the U.S. Geological Survey, dealing
with a proposed surface coal mine to be operated in Mof-
fat County, Colorado. At that time, the plan was to mine
four seams of coal. Later investigations suggested that,
instead of four seams, eight seams could be mined.
Whereas the four-seam mining plan would have pro-
duced about 19,000 tons of coal per surface acre dis-
turbed, the eight-seam plan would produce about 68,000
tons per surface area disturbed.

The Colowyo Coal Company asked ROMCOE to organize
an informal meeting at which Colowyo personnel could
explain to citizen interest groups their new plans for
mining, transportation, and reclamation. In June 1976,
invited guests representing a broad range of environ-
mental interests gathered at the Colowyo offices in Den-
ver for an evening of discussion. Senior management and
engineering staff of the Colowyo Company were present
to explain project plans and answer questions. Discussion
revolved around effects on wildlife habitats, plans for
expanding mining operations in the future, construction
of a railroad spur, reclamation of disturbed land, popula-
tion increases, and also the consequences for the region
if more mines were opened in the same area. This last
issue continues to be a matter of particular concern, but
the specific questions about the Colowyo mine appeared
to have been answered satisfactorily. Later public hear-


ings on the mine permit were attended by environmen-
talists, but no serious objections were raised.
Mediation
Finally, in conflicts where information sharing and con-
ciliation are not adequate, mediation can be used. Medi-
ation is a process of encouraging parties to a conflict to
work together to find a solution agreeable to all parties.
Unlike arbitration, in which disputants agree to abide by
the solution offered by an arbitrator, mediation achieves
a settlement through a joint problem-solving effort.
The Need for a Tailored Approach
The Mesa County workshop dealt with the beginning of
a major controversy; the Colowyo mine situation is an
example of an ongoing conflict. Environmental dis-
putes have certain generic similarities, generally similar
basic value conflicts, and vaguely similar proponents and
opponents. Each case, however, demands a separate,
specially tailored approach. Mesa County is losing agri-
cultural land because its citizens are building homes on
it. Delta County, next door, is losing agricultural land
because multinational corporations and the federal gov-
ernment are involved in mining coal beneath the farm-
land. These actions have similar consequences-the loss
of productive land-but the attendant causes and percep-
tions are quite different.
Conflict management includes mediation and concilia-
tion, but ROMCOE relies most heavily on information
sharing, one of the most effective methods of preventing
or at least reducing conflict. O

Susan L. Carpenter is director of futures education for the Rocky
Mountain Center on Environment. W. J. D. Kennedy is ROM-
COE's director.


r


L;j







Contract Zoning as a Negotiation Tool:

Fairfax County, Virginia's 'Proffer Process'

J. Richard Tremaine
Philip G. Yates


Fairfax County, Virginia, has an area of approximately
400 square miles and a population of about 568,000.
As a bedroom community of the nation's capital, it
has experienced rapid, suburban-type growth over the
past 20 years. To deal with this growth, Fairfax County has
developed a number of techniques to assure that devel-
opment meets the needs of current and prospective
county residents, and that it does not place an undue
burden on services.
One of these techniques is the "proffer process." This
system has been used to ensure high quality development
and has also been employed as a useful tool for negotiat-
ing between the county and the developer and for avoid-
ing costly zoning disputes. Under the system, an applicant
makes certain commitments to the county in advance of
his rezoning hearing. In exchange, the project is virtually
assured of approval by the county.
In 1973, the Virginia legislature amended the zoning en-
abling legislation to permit contract zoning in selected
jurisdictions when additional conditions were proffered
by the owner of the property in advance of the required
public hearing. At that time, the board of supervisors of
Fairfax County had just begun a major planning program,
k which soon led to a moratorium on hearing rezoning ap-
plications.
The zoning moratorium lasted from January 1974 to June
1975. As the board of supervisors began the final steps of
its planning efforts and looked forward to the pending
zoning requests, it felt that certain changes were neces-
sary. The board took advantage of the amended enabling
legislation and revised its zoning ordinance to require
that applications for rezoning include a generalized de-
velopment plan for the property, as well as either of the
following statements:
I hereby proffer that the development of the subject prop-
erty of this application shall be in strict accordance with the
conditions set forth in this submission, unless an amend-
ment thereto is mutually agreed upon by the Board of Su-
pervisors and the undersigned.
The conditions set forth in this submission are not to be con-
strued as binding on the development of the subject prop-
erty of this application.
These amendments require the applicant to give some
thought to appropriate development prior to his public
rezoning hearing and to decide whether he wishes to be
bound by his prepared plan. The board of supervisors
can then better evaluate the rezoning application in light
of the commitment (or lack of it) made by the applicant.
Advantages
From the standpoints of both the board of supervisors
and the applicants, these requirements have worked very
well. The great majority of applicants agree to develop
according to their plans, and many of them agree to


abide by additional restrictions, such as provision of rec-
reational amenities, special treatment of environmentally
sensitive areas, road dedication or construction beyond
normal requirements, and buffering or screening beyond
normal requirements. By proffering certain commitments,
the applicant is virtually assured that his zoning request
will be approved, as long as it does not exceed the maxi-
mum density or intensity of use specified by the adopted
comprehensive plan.
Zoning in Fairfax County
In order to understand what appears to work to the satis-
faction of both the board and the applicant, one must
examine the full zoning process. In 1975 the Virginia Su-
preme Court issued two opinions in zoning cases involv-
ing Fairfax County-the Allman case and the Williams
case-which indicated that the county's comprehensive
plan is of major significance for guiding land use. These
decisions also clarified the appropriate county role in
zoning and land use in general. (Board of Supervisors of
Fairfax County, Virginia v. Allman, 211 S.E. 2d 48, 1975;
Board of Supervisors of Fairfax County, Virginia v. Wil-
liams, 216 S.E. 2d 33, 1975.)



By proffering certain commitments, the applicant is
virtually assured that his zoning request will be
approved.




Following the guidance of these opinions, the Fairfax
County Board began undertaking its truly legislative re-
view at the time of comprehensive plan consideration. In
the case of residential planning, the board established
planned density ranges, such as eight to 12 units per acre.
The board then established nine criteria-which together
form a distinct component of the adopted comprehen-
sive plan-to be used in determining whether an appli-
cant is to receive the higher or lower end of the density
range:
*Sensitivity of design to the natural features of the
land.
Progressive conservation techniques.
Provision of open space for active and passive recre-
ation.
Provision of amenities and special features.
Provision of low- and moderate-income housing.
Provision of supportive public facilities.
Innovative design.
Preservation or restoration of buildings, structures,
or other features of architectural, historic, or envi-
ronmental significance.







Phasing of development to coincide as nearly as pos-
sible with the provision of public facilities.
Although, in theory, an applicant could be granted the
upper density limit called for by the plan even without
proffers, this is seldom done. The applicant who wants a
zoning category which would allow development of 12
units per acre will generally take steps to meet most of
the adopted criteria. He can then generally count on a
favorable recommendation from the county staff and
planning commission and a positive action by the board,
assuming the requested density or intensity of use con-
forms with the density range or land use recommenda-
tion of the adopted comprehensive plan.
The steps which lead up to this process begin with sub-
mission of the development plan, 60 days before the pub-
lic hearing with the county planning commission. The
plan is reviewed by the Office of Comprehensive Plan-
ning and other appropriate government agencies. De-
tailed recommendations are prepared by reviewing agen-
cies and serve as a basis for discussions between the ap-
plicant and the Office of Comprehensive Planning.


EC


The county staff prepares a final comprehensive report on
the application, including a recommendation on the re-
zoning request, a critique of the development plan, and a
list of all conditions which the staff feels are appropri-
ate and desirable to be proffered. This report is made
available to the applicant, interested citizens, and the
planning commission and is eventually forwarded to the
board of supervisors with the commission's recommenda-
tions.
Under this method of implementing the comprehensive
plan, most of the major decisions on a rezoning applica-
tion have already been made by the time the application
reaches the board of supervisors. The board's action thus
comes very close to being merely administrative. The
process does not eliminate controversy-there is still a
good deal of that, but it centers on the comprehensive
plan review and adoption stage-and the comprehen-
sive plan is still being formally reviewed once a year.
Once the planning issue is settled, implementation con-
sists mainly of negotiation, which ultimately benefits
both the applicant and the county. In those infrequent
cases which present serious conflicts to the board, the ap-
plicant is usually sent back to an earlier step in the proc-
ess for further efforts at reaching an acceptable proposal.
O

J. Richard Tremaine is assistant county attorney and Philip G.
Yates is chief of the plan implementation branch of the Office of
Comprehensive Planning, Fairfax County, Virginia.




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