[HISTORY: Adopted by the Town Board of the Town of Tusten 11-12-2001 by L.L. No. 5-2001. Amendments noted where applicable.]
The title of this chapter shall be "Land Use Mediation"; and this chapter authorizes the use of the voluntary mediation to resolve planning, zoning and other land use disputes; and establishes the procedure for such mediation.
The Town Board hereby finds and determines that:
There are instances when controversial matters relating to planning and zoning, including but not limited to rezoning, subdivision plats, site plans or special use permits, are presented to the Planning Board or Zoning Board of Appeals for resolution by such boards.
Such controversies generally arise as a result of the opposition to a proposal submitted to either of such boards for their consideration and resolution.
In many instances, the opposition arises because there is no convenient way to determine the real extent of the opposition and the basis for such opposition.
In the event the reasons for the opposition can be determined in an atmosphere absent the stress and strain of a public forum charged by strong statements, it may be possible to weigh the advantages and disadvantages of a proposal in a more reasonable manner if the goals of all parties can clearly be identified.
In the event the parties of interest are willing to meet to 1) discuss their differences, 2) identify the goals they each seek or 3) identify the matters that should be considered to determine if the dispute can be resolved in a manner that is satisfactory to such interested parties, the overall interests of the people within the Town will be enhanced.
Mediation is a procedure that has been used successfully in many municipalities in this state and other states to resolve such differences or controversies.
This chapter is enacted for the purpose of providing an optional procedure relating to the resolution of disputes with the goal of designing an orderly method of land use development within the Town.
As used in this chapter, the following terms shall have the meanings indicated:
- A proceeding in which parties of interest to a dispute or potential dispute, at their discretion and with the assistance of an impartial mediator, jointly seek to prevent or resolve differences and reach agreement on issues that arise from municipal land use matters including, but not limited to, rezoning, subdivision plats, site plans, or special use permits. For the purposes of this section, mediation shall not apply to variances, appeals, or requests for interpretations from a Zoning Board of Appeals.
- An individual who has been certified as a mediator under the guidelines of the New York State Unified Court System Community Dispute Resolution Centers Program, or a person who has equivalent qualifications or certification, or an individual deemed by the parties of interest to be qualified to conduct mediation pursuant to the provisions of this chapter.
- PARTY OF INTEREST
- An individual applicant, or his/her 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 and land use matter under the jurisdiction of the Planning Board or the Zoning Board of Appeals; provided that the Town or any of its departments or agencies shall not be deemed to be a party of interest for the purposes of this chapter.
The Planning Board and the Zoning Board of Appeals are each separately authorized to use mediation as an aid in resolving disputes over substantive planning and zoning issues within the scope of their respective jurisdictions.
Mediation shall be authorized by the Planning Board or the Zoning Board of Appeals upon a finding that a dispute before such board may be resolved by mediation and such mediation may also be authorized upon the request of a party of interest in the event such Planning Board or Zoning Board of Appeals finds that there is a possibility that such dispute may be resolved by mediation.
Upon a determination that mediation may be used to resolve a dispute, the board which adopts a resolution authorizing mediation shall schedule an initial organizational meeting of parties of interest. Notice of the time and place of such organizational meeting shall be sent to all parties of interest with a list of potential mediators. Upon the commencement of the initial organizational meeting, other parties of interest may be identified.
At the initial organizational meeting or at a meeting thereafter and before any other action is taken relating to the dispute, the following procedural matters shall be discussed, determined or resolved:
That the parties present at the meeting agree to voluntary participate in the mediation proceeding.
The allocation of costs among parties of interest shall be determined, including the determination of the amount of financial or other support the Town may provide.
The selecting of a mediator who shall conduct such proceeding in accordance with accepted practices, including, but not limited to, those developed for use by the New York State Unified Court System Community Dispute Resolution Centers Program.
Identifying all parties of interest and the manner in which they or their representatives shall have an opportunity to participate.
All parties of interest shall be advised of the limitations of mediation and of their legal rights and all parties of interest shall be advised that they have a right to consult with an attorney and that it may be in their interest to so consult with an attorney.
The establishment of a schedule relating to the commencement and completion of the mediation, which shall include the suspension of relevant time limits otherwise provided by statute, rules or regulations, provided there is written consent by an applicant and the Town Planning Board or Zoning Board of Appeals, as the case may be.
Subject to the provisions of law relating to public meetings, determine if some or all of the mediation sessions shall be open or closed to the public.
Identify those Town officials who will supply information to the parties of interest and to the mediator or who will supply requested findings of fact.
That all mediated solutions shall be in writing and will be signed by the mediating parties of interest.
That the Town Board or the board before which the dispute was being considered shall not be legally bound by the mediated solution but may be given due consideration.
Any voluntary mediation undertaken pursuant to the provisions of this chapter shall be conducted in accordance with accepted mediation practices, including, but not limited to, those developed for use by the New York State Unified Court System Community Dispute Resolution Centers Program.
The mediation process authorized by § 198-4 of this chapter shall not replace applicable statutory, local law, ordinance, rule or regulatory review procedures now in effect.
An agreement arising from mediation shall be subject to public review as part of a procedure before the Planning Board or Zoning Board of Appeals.
In no event shall the mediation proceeding, findings or determination made pursuant to this chapter be binding upon the Town Board, the Planning Board or Zoning Board of Appeals or otherwise limit the discretion of such boards.
All memoranda, work products, or case files of the mediator shall be deemed confidential, and not subject to disclosure in any judicial or administrative proceeding.
Any communication relating to the mediation proceeding made by any participant, mediator, or any other person present at the mediation proceeding shall be confidential, except as agreed to by all mediating parties of interest.