[HISTORY: Adopted by the Town Board of the
Town of Huntington as indicated in article histories. Amendments noted
where applicable.]
[Adopted 6-3-2003 by L.L. No. 19-2003]
It is the intent of the Town Board to provide
a flexible framework in the Town of Huntington for the voluntary submission
of land use disputes to a trained and qualified mediator for the purpose
of resolving disputes and threatened disputes. By enactment of this
article, the Town Board hopes to encourage all interested parties
in a land use matter to explore options that could result in agreement
on disputed issues and avoid litigation. The Town Board finds that
the public good will be served by the submission of disputes to a
neutral mediator, thereby aiding and encouraging the voluntary exchange
of information and ideas among interested parties while also possibly
avoiding expensive and time-consuming litigation.
This article establishes procedures for using mediation to prevent or resolve planning, zoning and other land use disputes involving the Town or any of its boards, agencies or departments, and is hereby adopted pursuant to New York State Municipal Home Rule Law, Chapter 10, and Chapter 10 of NYS Statute of Local Governments.
As used in this article, the following terms
shall have the meanings indicated:
Means and includes any matter over which the Town Board,
Board of Trustees, Planning Board, Community Development Agency, Zoning
Board of Appeals, Departments of Planning and Environment, Engineering
Services, Maritime Services and the Highway Department has jurisdiction
which involves the use of land or waterfront or underwater lands.
An individual who has been certified as a mediator under
the guidelines of the NYS Unified Court System Community Dispute Resolution
Centers Program, or a person who has equivalent qualifications or
certification, as determined by the Town Attorney, who shall maintain
a list of qualified Mediators; or a person who has been selected by
agreement of all known parties to the dispute as determined by the
Town Attorney; or a person selected with the assistance of a reputable
neutral alternate dispute resolution organization, as determined by
the Town Attorney.
An applicant or their agent seeking a land use approval,
as well as any other individual or group having a substantive concern
or role in the outcome of a given planning, zoning or other land use
matter under the jurisdiction of the Town of Huntington; "interested
party" is intended to be broadly interpreted and to include affected
school districts, civic associations or those claiming that a precedent
for other development will be set by the land use matter in issue,
provided that the Town or any of its boards, including the Board of
Trustees and Community Development Agency, shall not be deemed to
be a party of interest for the purposes of this article.
A proceeding, initiated on its own motion, or at the request
of an interested party, by the Town Board, the Board of Trustees,
the Community Development Agency, the Planning Board or the Zoning
Board of Appeals (ZBA), in which parties of interest to a dispute
or potential dispute pertaining to municipal land use matters including,
but not limited to, comprehensive plans or plan updates, rezonings,
subdivision plats, site plans, special use permits, or appeals to
the ZBA, or any other land use dispute involving a board, agency or
department of the Town, may, at their discretion and with the assistance
of a neutral mediator, jointly seek to prevent or resolve differences
and reach agreement. The purpose of the mediator is to improve communication,
help parties articulate their interests and understand those of the
other parties, probe the strength and weaknesses of each party's legal
positions, identify areas of agreement and help generate options for
a mutually agreeable resolution to the dispute.
A.
At any point in a project review process of a land
use matter in which the Town has jurisdiction, the Town Board, Board
of Trustees, Community Development Agency, Planning Board, ZBA, Directors
of Community Development Agency, Department of Planning and Environment,
Engineering Services, Maritime Services or Highway Department may,
as to matters within their respective jurisdictions, if they deem
appropriate and the parties consent, appoint a mediator to work informally
with the applicant, neighboring property owners, and/or other concerned
persons or entities to address any and all issues relevant to the
proposed application or other Town land use matter. Such mediation
shall be conducted by a qualified mediator taken at random from the
list maintained by the Town Attorney, unless the parties of interest
mutually agree on a mediator from such list or have agreed on a person
to serve as a mediator or have agreed, at their own expense, to utilize
the assistance of a reputable neutral alternate dispute resolution
organization to obtain a qualified mediator. The mediator shall have
no power to impose a settlement or bind the parties or any of the
boards of the Town, or to make any recommendations, except to the
parties directly in the mediation process. Any settlement reached
shall require approval by all boards, agencies and/or departments
with jurisdiction to assure compliance with applicable provisions
of law; provided that, notwithstanding anything contained herein to
the contrary, the parties to a dispute which is referred to mediation
by a board, agency or department of the Town are required to attend
one mediation session.
B.
On a matter referred to mediation, the Town Attorney
or the appointed mediator shall notify all parties of interest in
writing that:
(1)
The mediator has no duty to protect their interests
or to provide them with information about their legal rights;
(2)
Signing a mediated settlement agreement may adversely
affect their legal rights; and
(3)
They should consult an attorney before signing a mediated
settlement agreement, where they are uncertain of their rights.
C.
The use of mediation shall be voluntary and shall be determined in each case by the willingness of parties of interest to participate, except for the requirement that the parties participate in one mediation session as set forth in Subsection A above. Any applicant actively seeking an approval by a board, agency or department of the Town and who participates in mediation must consent to the suspension of relevant time limits for municipal review and approval on such terms as the applicant and the attorney for the board, agency or department with jurisdiction agree.
D.
In the event of a mediated agreement, such agreement
shall be prepared in writing, signed by the respective parties in
interest, and submitted to the board with jurisdiction.
E.
The mediator is responsible to manage the process.
After attending at least one mediation session, any party may withdraw
at any time upon written notice to the mediator. The mediator shall
determine which interested parties may participate in the mediation.
The mediator may terminate the mediation whenever he/she deems it
appropriate.
Unless otherwise required by law or order of
court with competent jurisdiction, all memoranda. work product, or
case files of a mediator, as well as submissions and statements by
interested parties or their agents, shall be deemed confidential and
not subject to disclosure in any judicial, administrative, arbitration
or other proceeding. Any communication made during the mediation process
by any participant, mediator, or any other person present at a mediation
session or sessions shall be a confidential communication. The parties
of interest are required to execute a confidentiality agreement to
this effect upon the request of the mediator or any party of interest;
provided, however, that this clause shall not be deemed to make confidential
any document or statement that is already public, is made public in
the future or would otherwise be subject to disclosure in a court
of law. A document otherwise disclosable will not be made confidential
merely because it was submitted as part of the mediation process.
All costs associated with voluntary mediation
conducted pursuant to the provisions of this article shall be collected
in advance of the mediation from the applicant or party seeking an
approval or other relief from a Town board, agency or department regarding
a land use matter, except where a party is challenging a grant or
approval, in which case the party receiving the grant or approval
shall bear all mediation costs hereunder. An estimate of mediation
costs shall be prepared by the Town Attorney and shall be delivered
in writing to the applicant or their attorney, who shall make payment
to the Town within seven (7) business days unless such time is extended
by the Town Attorney. Any costs actually incurred above the estimate
shall be paid to the Town by the applicant within seven (7) business
days of delivery of an itemized statement. In the event the mediator
determines that an independent expert (such as traffic engineer, real
estate expert, architect, engineer or other expert) is necessary to
facilitate the mediation process, such mediator shall notify the Town
Attorney who shall forthwith notify the applicant's attorney of the
estimated amount needed to be paid to the Town and that payment is
due within seven (7) business days unless extended by the Town Attorney.
In the event amounts due hereunder are not paid, the board, agency
or department with jurisdiction shall have the authority to suspend
the processing of any applications or to suspend any grants or approvals
previously rendered until such time as the amounts due are paid in
full. The Town Board may also authorize the Town Attorney to take
legal action.
A.
Any mediation initiated pursuant to the provisions
of this article shall complement, but not replace, otherwise applicable
practices, procedures or enforcement, whether required by state law,
local law or ordinance.
B.
The outcome of a mediation proceeding undertaken pursuant
to this article shall not be deemed to bind or otherwise limit the
discretion of the board or agency with jurisdiction in the matter
being mediated.
C.
An agreement that requires additional action by the board with jurisdiction shall not be deemed to be self-executing. If any such additional action by the board with jurisdiction is required, the applicant or their agent shall be responsible for initiating a request for such action and supplying any information required by said board, agency or department to undertake the action; provided further, that the action undertaken by the board, agency or department with jurisdiction shall not be bound or limited by the mediation agreement as provided in Subsection B of this section.
D.
Notwithstanding any restriction that would otherwise prevent reconsideration of an action of the board or agency with jurisdiction, such board may, by majority vote, reconsider its decision on a land use matter in accordance with a mediation agreement developed pursuant to this article, provided such reconsideration does not violate any substantive due process as determined by the board, agency or department head. It is expressly intended that any inconsistent provisions of state law, including all applicable provisions of the Town Law, be superseded by this provision pursuant to the Town Board's authority under New York State Municipal Home Rule Law, Chapter 10.
