18painfullessons.pdf

A

Framework

For

Development

Dispute Resolution

Jim

Holway

&

John

Hodges-Copple

Can

theproblems

and

positionsencounteredin certaindevelopmentdisputeseffectivelyprevent

any

mean-ingfulnegotiation?

Are

theresituations

where

a

win-win

outcome

isnotachieveable?

The

analysispresented

in this casestudy suggestsapproaches that can be utilized

by

municipalities to avoid no-winsituations.

John Hodges Copple is a

Master's Candidate at the

Department of City and

Regional Planning at the UniversityofNorthCarolina atChapelHill.Heisalsoan associatewith theSouthern

GrowthPolicies Board.

JimHolwayisa

PhD

Can-didateattheDepartmentof CityandRegionalPlanning at the University of North

CarolinaatChapelHill. He

isaresearch associateatthe theUniversity ofNorth Car-olinaat Chapel Hill Center

for Urban and Regional

Studies.

Introduction

The

sitingoflocally

unwanted

landuses, termed

"LULU's," exposes shortcomings in the traditional

limited-participation

development

review process.

Decision

making

with respect to LULU'sis

compli-catedbecausebenefits typicallyare dispersedwidely

within a

community

while costs are

borne

by

a

minority concentrated near the offending project.

The

typical decide-announce-defend process

—

where

adeveloperunilaterallydecidestoundertake

aproject,announcesproject detailsinanapplication

forapproval, thendefendstheproject against

oppo-nents in a public hearing

— may

result in less than optimal outcomes.1

Thisconflict-ridden process

becomes

a win-lose

confrontationforboth proponents

and

opponents.

Project approval or disapproval

may

ultimately

hinge

on

politicalclout,

economic

staying

power

of

the participants or judicially decided procedural

issuesunrelatedtothe merits of theproject.If proj-ectapprovalissecured, asinthecasedescribedhere,

opponents

may

find little mitigation to

show

for

theirefforts

and

expense, whileproponents obtain approval only after

an

expensive, time-consuming

process.

With any

outcome, uncertainty, expense

and

delay are likely. Ill will is often engendered

among

participants,

who

may

find themselves involved in future disputesbecause of past

antag-onism.

This article addresses conflict surrounding the

development

ofa publichousingprojectin Chapel

Hill,

NC. The

project

and

thetraditional

develop-ment

reviewprocessit

underwent

aresummarized.

The

process

and outcome

are critiqued accordingto

the tenetsof "principlednegotiation."2

Barrierstoand

opportunities for a negotiated settlement are

out-lined.

A

framework

for

an

amended

development reviewprocessto includeopportunities for dispute

resolution

and enhanced

public participation is

proposed.

The

Piney

Mountain

Project

In

March,

1986, residents

began

moving

into16

duplexes (32units) ofpublic housing

on

a 5.5 acre site

on

Piney

Mountain

Road, sevenyearsafter the

Chapel

Hill

Housing

Authority

was

firstnotified of

theavailabilityoffunds

and

sixyearsafterthefirst

site selection process began. In the interim, the

Housing

Authority survivedchallengestothe proj-ect in the

development

review process, allegations

of illegaldeal-making, allegations ofconflict of in-terest

on

the part of themayor, a court case

and

an attempt

by neighborhood

residentstopurchasethe site.

Neighborhood

residentsweresubjectedto

post-decision disclosure of plans

and meager

attemptsat

public participation

on

the part of the Authority

which

left a legacy of distrust

and

anger toward

The

project

began

withnotification tothe

Hous-ingAuthority from the

Department

of

Housing and

Urban Development

(HUD)

of the availability of

federal funds in

March,

1979. Like

many

mission

agencies, theAuthority tended to define its

objec-tivesnarrowly: provide housingfor

some

ofthe380

families

on

itswaitinglist, takeadvantageof

what

theAuthorityperceived as thelast opportunityfor

federalfunds,

and

follow a"scatteredsites"

policy-avoiding concentrations of public housing.

After receiving

HUD

funding approval in July,

1979, a site selection committee

composed

of

Authorityboard

members

and

the

Town mayor

was

formed.

The

committee conducted a site search

throughlocal realtorsinFebruary, 1980,

one

month

after the

Town

of Chapel Hill

annexed

the Piney

Mountain Road

area.

The

committee encountered

difficultyfinding suitablysizedsitesthat

met

itscost

and

location criteria.

Acquisition discussions with the

owner

of the

Piney

Mountain Road

site beganinFebruary, 1980.

It

was

only after the

Housing

Authority

was

well

on

its

way

to receiving purchase price

and

site

ap-proval

from

HUD

that

neighborhood

residentsfirst

learned of the project

—

_by

questioning surveyors

working

atthesite. Asidefromadesign presentation

late intheprocess

and

apparently

some

unsuccessful

attemptstomeet withneighbors following submittal

of the

development

application to the

Town,

the

Authority did nothavediscussionswith neighbors

or other interested parties.

Some

area residents

formed

thePiney

Mountain

Neighborhood

Associationin oppositiontothe

pro-posed multi-family project locating intheir

single-family area.

The

interests of theAssociation were

divided, with

one

estimate that approximately 50

percent

opposed

any

publichousinginthearea, 40

percent

opposed

thehighlyvisiblesite chosen

and

10percent

opposed

the design. Neighborsfavoring

the project

may

not have joined the Association.

The

Associationfirsttriedunsuccessfullyto

pur-chase thesite, thenfailedinanefforttodefeat

provi-sions of a

new

development

ordinance (adopted

by

the

Town

inMay, 1981)

which

allowedhigher

densi-ties throughout the

Town

—

and

would

permit the

project intheirneighborhood.Association

members

and

theirattorney petitioned the

Town

and

HUD,

expressing oppositionto theproject

and

questioning

whether

Housing

Authority

and

Town

decision cri-teria

were

being followed.

While

the Authority's

application

was winding

its

way

throughthe

Town

approvalprocess,theAssociationallegeda deal

had

PineyMountain

been

made

toprovide publichousing forarelative ofthesite's

owner and

chargedthemayor, an archi-tect, with a conflict of interest.

The

Authority's applicationunderwenttheTown's

standard

development

review procedure involving

Planning

Department

analysis

and recommendation

(fortheproject), Planning

Board recommendation

(against theproject), public hearing, Council vote

(7-2for the projectinSeptember, 1981)

and

review

by

the

Appearance Commission.

Because the type

of

development proposed

required aspecialpermit under the1981

Development

Ordinance, the

Plan-ning

Board and

subsequently the

Town

Council

were

required to

make

four affirmative findingsin

order to approve the project. These were: (1) the

project

was

located

and

designed so as to enhance

general safety

and

public welfare, (2) the project

complied withallregulations

and

standards, (3)the

project

was

located, designed

and

operatedsoasto

enhance the valueofcontiguousproperties

and

(4)

the project

conformed

to theTown's General Plan.

The

Associationadvocateddenial

on

thegrounds

of trafficcongestion, negative impact

on

property

values

and an

excessive concentration of public

housing in their neighborhood.

The

Planning

Board's

recommendation

against approval

was

based

on

thefirst

and

fourth findings above; it

con-cluded that the site

was

not the

most

appropriate

siteselection

process failure

participant types

situationanalysis

and

that

some

goals of the General Plan

were

in

conflict.

FollowingCouncilapproval, theAssociation sued;

the decision infavorof the project

was

announced

in February, 1982.

Principled Negotiation

and

the Siting

Problem

Roger Fisher

and

William

Ury

describe in their

book

Gettingto Yes, a four part

method

they term

"principled negotiation." Essentially, principled

nego-tiation involves:

(1) separating people

from

the

problem

—

not

let-ting personalities

and

egos

overshadow

the

pro-blem

tobe solved,

(2) focusing

on

interests, not positions

—

looking

beyond

the stated positionsto theirunderlying

interests,

(3) insisting

on

using objectivecriteria

—

having

par-ticipantsagree

on

standards

by which

decisions

will be

made,

(4) inventing optionsfor

mutual

gain

—

generating

severalpossiblepackagesofoptions before

mak-ing a decision.

A

reviewof the Piney

Mountain

dispute reveals

thatthethree

main

parties

—

the

Housing

Authority, the

Neighborhood

Association

and

the

Town

—

violated the four tenets of principled negotiation.

Discussionswithparticipantsrevealedthat

propo-nents tended toregard project

opponents

aselitist

and

perhapsracist, opposingthe project out of

self-ishness

and

ignorance. Project

opponents

tendedto

regard proponents as arrogant

and

self-righteous,

unilaterallyforcing

unwanted development

intheir

neighborhood

and

unconcerned as to its impacts.

Observers

on

bothsidesnotedthat

some

proponents

and opponents

adopted abrasive, confrontational

approaches, further polarizing the conflict.

With

these strongly held images of thepeople involved,

neither side ascribed

much

validity to the other's

stated concerns.

The

Authority's strategy ofselectinga site

and

a

development

plan, then defendingitsposition,

and

the Association's strategy of attacking thesite

and

plan, precluded the parties

from

focusing

on

the

underlyinginterests

—

the Authority'sdesireto

pro-vide

low-income

housing

and

the Association's

de-siretominimizeadversechangetotheneighborhood.

The

one

instance

where

the dispute

came

closest

toprincipled negotiation

—

theuse of objective

crite-riaforgranting aspecial

permit—

failed

due

to alack

ofdefinition

and

alack of options.

The

Authority's

scatteredsitepolicy, legitimizedintheTown'sHousing

Assistance Plan, specified acceptable concentrations

of public housing in each of the Town's Planning

Areas. Disagreement as to

whether

thelarge

Plan-ning

Areas

were

the suitable levelof analysis

and

whether

exsiting or estimated future population shouldserve as thebasisfor

comparison

werenever

satisfactorilyresolved. Inessence, the parties tried to

bend

the criteriato support their

arguments

for

or against the only option

under

consideration,

rather than using criteria to generate options.

The

decide-announce-defend strategy precluded

the generation ofalternatives; thefundswere

avail-able, thesite

approved

by

HUD

and

thedesign well

under

way.

Without

a political or judicial defeat

there

would

be

no fundamental

changesinthe

Au-thority's plan.

LarrySusskind3

identified fourtypes of

partici-pants ina sitingdecision. "Boosters"will favorthe

project

and

"preservationists" willopposeitwithout

regardto specifics of theproposal or the approval

process. "Non-participants"willnotgetinvolved.

A

significant portion of localresidents (up to50 per-cent) willbe"guardians;"theirsupportforor

opposi-tiontoa project

may

depend

on

theirperceptionof

the fairness of thedecision-makingprocess. Public

agenciesneedtobecarefultomaintaintheirsupport.

An

enhanced

public participation or negotiation

framework

may

be an appropriatevehicletogarner thesupportof

both

local

government

officialsand

citizen "guardians."

Raiffa4

_and

_Sullivan5

discuss factors that tendto

help or hindertheuseof negotiationina givendispute.

It iscriticalto analyzeeach situationto estimatethe effectiveness ofusinga negotiationframework.

Sev-eral factors indicatenegotiation

may

have been

pro-ductive in the Piney

Mountain

case.

First,eachpartycouldreceivegains

from

negotia-tions without sacrificing its best alternative to a

negotiated agreement

(BATNA):

pursuingits

inter-eststhroughthetraditionaldevelopmentreview pro-cess. Because plan review througha public hearing

mechanism would

occuranyway,

none

of theparties

must abandon

strategiesthey

would

otherwiseuse.

In addition, willingness to negotiate

would

signal

to decision-makers that a party

was

pursuing

con-structive

means

in thedispute.

The

reviewprocess

provides

two

otherincentivesto bargaining: it im-posesadeadline

and

itensuresthat

none

ofthe par-ties canact unilaterally to attainitsgoals.

A

noted

theTown's interests

were

identical to its

own,

thus

ensuringitsdesired

outcome

intheabsenseof

nego-tiation.

Some

might argue this

was

true for the

Authorityin thiscase, but itisa risky assumption

to

make

in the political arena.

Public

and

quasi-public projects often lend

them-selves to bargaining. Because they are designed to fulfillpublicinterests

and

usually involve the

expen-diture of public funds, the property rights of the

"developer" are often regarded as

weaker

than in a

private development.

Another

factor favoring negotiation is the

exis-tence of

common

areas of interest that are not of

a zero-sumnature. Early inputinto

which

objective

criteriashould be usedtoevaluatealternatives

and

how much

weight various criteria should be

as-signed areexamplesof

expanded

participationthat

need not involve a relinquishment of power.

Another example

isjointinvolvementinthe design

process,

where neighborhood

concerns might also

benefit future project residents. Design elements

may

be ofsecondary concern to the Authority as

long as cost

and

scale impacts are minimal.

Given theanimositydisplayedduringthe dispute,

formal negotiations

may

have

improved

basic

com-munication

among

participants

and

helped develop

lessbiasedanalysisoftechnical considerations.

Neu-tralobservers

would

likelyconcludethatallparties

had

legitimate interests

and

acted in an expected

manner

tofurther thoseinterests.In particular, plan-nersneedto

acknowledge

that the "notin

my

back

yard"

(NIMBY)

responseisarational

and

legitimate

expression of residents'interests.

Finally, negotiations could preclude conflict related to lack ofinvolvement, therby shifting the

focus to the merits of the plan.

There

are

some

factors thatmighttendtohinder

negotiations. Foremost

among

these involvesfinal

siteselection.Regardlessof theprocess orthe design,

the

neighborhood

in

which

the project is sited is likely to resist.Thisresultsinthe"reservationprice"

oftheneighborhood (no projectat thesite)

and

that

of the Authority

(some

project at the site) being

mutuallyexclusive.Thissingle issue

agenda

would

notbe conducivetonegotiationsinceoneparty

must

prevail at the other's expense.

In the Piney

Mountain

case, expense

and

delay

considerations

may

not have playedaslargea role

astheymightina disputeoverafor-profit develop-ment. Carrying costs

and

the need to satisfy

in-vestors can be a strong incentive to bargain.

There

are also "structural"

impediments

to

negotiation.

Among

theseare: (1)deeplyheldbeliefs

which

can preclude productive discussion, (2) the

inabilityofan interest

group

toreachconsensus or

representall its

member's

interests, (3) the

unlikli-hood

of future negotiations

on

a similarproject

and

(4) fear that bargaining

may

imply legitimacy of

others' interests, lessening the probability of a "victory ."

Itisalsoimportant torecognizethat

any

new

ap-proach toestablishedprocedures

may

beopposed,

largely out of apprehension to forsake something

familar forsomething

unknown,

with perhaps

un-foreseen consequences.

New

approaches also tend

to invite legal challenge until they

become

estab-lished. In addition, constitutional or other legal restrictions

may

affectthe abilityto

employ

negotia-tion strategies in

some

states.

Enhanced

Participation/Negotiation Process

What

we

terman enhanced

participation/negotia-tionprocess

must

consider severalelements:

what

interests are represented,

who

represents them, at

what

point(s) in the process negotiation occurs,

what

is

and

isnot negotiable;

and

what

role(s) the

planner

may

assume

in the bargaining process.

Four

broad

classes of interests could be

repre-sented in a typical local

development

dispute: the

project applicant, the affected neighborhoods, the

localgovernment

and

other publicserviceproviders,

and

the direct beneficiariesof theproject. State

and

federal agencies,

among

others,

may

also have in-terests, butforsimplicitytheyarenot addressed in this analysis.

How

interests are represented is

more

prob-lematic.

The

applicant

and

the local

government

tendto have adequate

means

tocoherently express

theirinterests, butadhoc neighborhood groupsraise

questions ofadequaterepresentation.

Whether

such

groupswill

form and

to

what

degreethey represent the

neighborhood

is uncertain. Negotiations

may

beassisted

by

providinga

mechanism

for

neighbor-hood

representation recognized

by

allparticipants.

A

similar

problem

arises with regard to project

beneficiaries. In cases

where

beneficiariesare

iden-tifiable, such as

where

a waiting list for public

housingexists, representativesshould be included,

perhaps using a

mechanism

similar tothat for the

neighborhoods.

The

localgovernment'sroleneedstobecarefully

circumscribed. Because the

town

councilwill

assume

interestexpression

impediments tonegotiation

A

treelessculdesac

criteria selection

negotiation steps

aquasi-judicial roleinthe

development

review

pro-cess, constitutionalconsiderations suggest that the

council not

become

involved in negotiations.

A

negotiation

framework

would

appearto offer

several roles forplanners, however. Planners

may

represent

town

interests as reflected in plans

and

policies, withtheunderstandingthattheplannercan

suggestlikelyconcerns, butcannotassureapproval

or denial of

any

proposal. In thisrole, theplanner

becomes one

of thepartiesto negotiatealong with

the applicant

and neighborhood

groups.

Other

duties of a planner in this role include serving as

aliaisonto

neighborhood

groups,eitheras

an

infor-mation

broker

—

ensuringthatallinterestedgroups

arekept appraised ofproject

developments

—

oras a technical assistantor advocateforacertain

group

or groups; preparing estimates of a project

pro-posal'simpacts,suggesting mitigationmeasuresthat

balance variousparties'interests

and

respondingto

comments

on

the project submitted

by

thepublic.

A

planner

may

alsoserveasa mediator, helping

par-tiestodefine objectivecriteria

and

identifypossible

mitigation measures.

As

a mediator, the planner

may

enhanceprospects for principled negotiations

as parties

may

not wish to appear uncooperative

before

someone

withaccesstodecision-makers. For

example, theplanner

may

suggestside

payments

or

mitigationmeasuresunder

town

purview thatcould

further prospects for agreement.

Many

of these roles

would

need to be

assumed

by

different

members

of the staffas they contain

conflicts of interest. Ifparties toa negotiation are

not confident that different

members

of the

same

staffcanservepossiblyconflictingroles, anoutside

mediator

may

be required.6

Perhaps the

most

difficult consideration is the

point at

which

various participantsshould engage

in negotiation. Based

on

the casestudy, it appears

that bargaining needs to occur

between

different

participants at different times. This results in

in-herentdangers thatnegotiationswillfailsince

some

criticalissues

would

belargelynon-negotiable.

The

incentive for the project applicant tobargain

would

be too small,

and

the incentive for project

oppo-nents to use unprincipledtactics too great, for the

finalselectionofthepreferredsitetobenegotiable.

This conclusion is based

on

theearlierassessment

thatsiteselectionconstitutesazero-sumissue

which

will result inoppositionindependentofthecriteria

employed

to select the site. Negotiations can help

determine

what

criteriashould beused, appropriate

design-related details once a site is chosen, but not the

actual choice of the site.

A

threestep"negotiation

on

ahigher plane"is

en-visioned: negotiationtodetermineobjectivecriteria

and

how

they will be used, site selection without

negotiation,

and

negotiationover mitigation

mea-sures

and

site design elements. Implementation

recommendations

include both steps to encourage bargaining

and

changesto the

development

review

processtobetter

embrace

anegotiationframework.

The

recommendations

are designed to

implement

the three-part "negotiations

on

a higher plane"

described above.

Recommendations

include:

1. _{Inclusion of}an "Interestsof ParticularConcern"

section in the GeneralPlan. Thissection liststypes

of projectsinwhichthe

town

perceivesanoverriding

public interest.

Each

locality generatesits

own

list,

based

on

itsneeds,

and

may

periodically

amend

it

as needed. Types of projects listed might include

shelters, utilities, halfway houses, public housing

and

majorpublicfacilitiessuchashospitals, airports

and

waste disposal facilities,

among

others.

The

listing does not supercede the

normal

review

pro-cess.It signalstoallparties that

minor

to

moderate

impacts of a project

may

not necessarily be suffi-cienttodenyapproval, but

must

be balancedagainst

the value of the project tothe public welfare. This

mechanism

enhancesthe legitimacy ofproponents

forlistedprojects

and opponents

for unlisted

proj-ects. It clarifies the public interest prior to

any

specific

development

proposals

and

may

forestall

accusations of

due

processabuse (such a provision

would

need to be carefully crafted to avoid a

due

process challengeout of hand). Ifpassed, this

sec-tion

would

alert proponents

and opponents

alike

ofthose projects for

which

some

form

of

negotia-tion is expected

by

the locality.

2. Establishment _of a recognized

network

of

neighborhood

groups.

The

network

may

improve

communication between

project applicants, local

government and

thepublic,

and

minimize concerns about

power and

legitimacy associatedwith ad

hoc

groups.

The

town

role could include approval of

organizations'bylaws toensure adequate

represen-tation, with the following elements required: (a) notification to all potential

members

about the

organization'sexistence

and

purpose, (b)a periodic

process for thedemocratic selectionofleaders, (c)

explicit solicitationofinput to,

and

notificationof,

all_{public stances of theorganizationtogetherwith}

notificationof all

communications

received

by

the organization.

The

town

couldappoint astaff

member

as liaison

tothe

neighborhood

groups,withresponsibility for

providing

them

with information.

3.Early

communication

with neighborhoodsfor

projectslistedunderthe"Interests_ofParticular

Con-cern".

The

quidpro

quo

forlistingasan

"interest"-which

tends to

enhance

the project's legitimacy

—

requires

communication between

theapplicant

and

affected parties prior to site selection or detailed

planning.Thisenablesthefullspectrumof

commu-nity interests toberaised.

The

procedure could be

as limitedasnotification throughthe

media

or

mass

mailings inviting

comment.

On

a higher plane, balancinginterests

notificationcould be followed

by

apublicmeeting

to gatherfurther input. Ifa

network

of

neighbor-hood

groups isestablished, afirst

round

of

negoti-ationscould be conducted.Negotiations, mediated

by theplannerifrequested, couldidentifyinterests,

determinepossiblesiteselection

and

reviewcriteria

and

informparticipants of the

development

review

process.Thoughtful planning

and

carefulattention

to the

development

ofprecise,

unambiguous

objec-tive criteriaby

which

potentialsiteswillbeevaluated

at this step can set the stage for a successful

prin-cipled negotiation.

4.

Appointment

ofa task forcetoprovide advice duringthesiteselection process.

The

task forcecould

be a standing committee

which

convenes for

any

major

project sitingor acommittee

whose

member-ship isappointed

on

a project-by-project basis. Its role

would

largelybe determined

by

theapplicant,

who

would

not be required to use task force ser-vices. It is unlikely that theapplicant

would

wish

toappearuncooperative becauseofthelocal

govern-ment's

development

review role.

The

task force

would

actas a surrogatefor

neighborhood

interests

duringsiteselection.Operatinginan advisoryrole,

the task force

would

ensure that site-specific

con-cerns are

communicated

to the applicant, while

safeguarding the confidentiality of the applicant's actions.

The

long-term success of the task force

would

depend on

its ability to

uphold

confidenti-ality. Task force suggestions, like those of the

planner/mediator,

would

not imply

town

sanction of

any

outcome.

5.

Neighborhood

involvementinpreliminarysite group network

design

and

development

of mitigation measures.

Analagous

to the

development

of conditions often

accompanying

theissuance of aspecialpermit, this stepcouldinvolve substantial negotiations.

At

this point, the

most

affected

neighborhood

may

oppose

advisorycapacity

sense of participation

then be evaluated

by

the previously determined

criteria. Eventually, opponentswillfacethedecision

toprovideinputtominimize adverse impacts while opposingthe projectduring thereviewprocess, or opposing the project without providing input.

Although opponents

may

argue that its concerns werenotfullymitigated, itcannotchargethatit

was

deniedinvolvementinthe process.

The

local

govern-ment

could thus judge the project

on

its merits.

6.

A

written, public analysis/comment/response procedureforallprojectslistedas "interests _of

par-ticularconcern" Thisfinalprocedure, occuring

dur-ing thedevelopment reviewprocess, ensuresthat all

concerns areraised,

and

responded to, prior tothe

final decision

on

the project application. It

would

include thePlanning Department'swritten analysis

and recommendation

for the project, available to

thepublic prior to the public hearing.

The

public

would

have the opportunity to submit oral

and

written

comments

on

the projectat thepublic

hear-ing.

The

Department would

then supply written

responsesforeach

comment

tothe

town

council

and

public prior to the council's decision.

Conclusion

The

enhanced

participation /negotiation process

described increases public input relative to the

tra-ditional

development

review process.

Where

lawsuits or other delays are avoided, the

recom-mended

process could also save participants time

and

money

and improve

community

relations.

The

negotiation process

would

takelonger

and

cost

more

than thetraditional process if both ran smoothly. Bargaining

would

tend to focus discussion

on

legitimate criteria

and

establish

more

useful

precedents

by

minimizing conflict over process

issues.

By

expanding thedebate, negotiation

would

arguably increase theprobability that the solution

most

in the public interest will be selected.

NOTES

1.LawrenceSusskind, TheSitingPuzzle:BalancingEconomic andEnvironmental Gain

&

Losses,HarvardProgramon Ne-gotiationWorkingPaperSeries 85-5, January1985.

2.RogerFisher,andWilliamUry, Gettingto Yes:Negotiating Agreement Without GivingIn(NewYork,NY: PenguinBooks, 1983).

3.Susskindp. 12.

4.HowardRaiffa, TheArtandScience of Negotiation

(Cam-bridge,

MA:

HarvardUniversityPress, 1982).

5.TimothySullivan,ResolvingDevelopmentDisputesThrough

Negotiation (NewYork,

NY

PlenumPress, 1984).

6.Workingasamediator,advocateorinformation broker

re-quires theplannertocommunicateeffectivelyand to actto

correctthe distortedcommunicationofotherparties.Jurgen Habermas'workon communicative competenceforplanners has beeninterpretedbyseveral planningauthors;seeJohn

Forester,"PlanningIntheFace of Power," Journal ofthe Ameri-canPlanningAssociation,Issue48p.67-80,Winter 1982 and HarveyGoldstein,'PlanningAsArgumentation,"Environment

and Planning13, 1984, vol. 11 p. 1-16.

7.Frank Popperrecommendsthat"Localland useregulations..

havesectionsdevotedtotheLULU, showingwherespecific kindsmightnotbelocatedandexplaining why."Hesuggests thiswillhelpplanners dealwiththefivetypes ofarguments usedtoopposeLULU's.TheseargumentsagainstLULU's