[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:
A.
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.
B.
Such controversies generally arise as a result of the opposition
to a proposal submitted to either of such boards for their consideration
and resolution.
C.
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.
D.
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.
E.
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.
F.
Mediation is a procedure that has been used successfully in many
municipalities in this state and other states to resolve such differences
or controversies.
G.
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.
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.
A.
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.
B.
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.
C.
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:
A.
That the parties present at the meeting agree to voluntary participate
in the mediation proceeding.
B.
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.
C.
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.
D.
Identifying all parties of interest and the manner in which they
or their representatives shall have an opportunity to participate.
E.
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.
F.
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.
G.
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.
H.
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.
I.
That all
mediated solutions shall be in writing and will be signed by the mediating
parties of interest.
J.
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.
A.
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.
B.
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.
