25profilesuccessful.pdf

The

Crest

Street

Experience

Laura

D.

Bachle

Laura

Hill

Tim

Nifong

How

do

you

define "success"in a negotiated settlement?

The

following casestudy defines itas "Crest St"-_a

low

income

neighborhood

moved

out ofthe

way

ofa

highway

in

Durham,

North

Carolina.

Although

the partiesdidn't immediately concur with this appelation, theirsmiles belie theirsense ofpride in the

outcome.

The

Crest Street area in

Durham,

North

Caro-lina, is an established, low-income, black

neigh-borhood

typical of

many

found

in southerncities. It is intergenerational, with relatives exchanging

greetings daily, small truck gardens,

and

the kind

of

house

style that lends itself to porch-sitting. Nonetheless,

an

outsider merely passing through

may

notgive itasecondthought. Butastrong sense

of

community

makes

Crest Street very important

to

many

people.

In1981, CrestStreet

had

thelookof a

neighbor-hood

low on

thelistof thecity'sagenda.

The

streets

were

in disrepair

and

houses

had

been

run-down

and

abandoned. Indeed, the city

had

something

dif-ferent in storefor the area

-

an expressway. There

was

an urgent

demand

for

highway

expansion,

and

Crest Street

was

slated for destruction.

A

yearlater,

on December

15, 1982, theCity of

Durham,

the

North

Carolina

Department

of

Trans-portation

(NCDOT)

and

the Crest Street

Commu-nityCouncil agreed

on

a mitigationplanthat

would

relocate the entire neighborhood. Since 1959, the

NCDOT

had

planned toextend the

Durham

East-West ExpresswaytoU.S.15-501.

The

proposedroute

travels justnorth of

Duke

University

and

the

Vet-eran's Administration Hospital. This article

docu-ments the success ofthe relocation project

by

detail-ing the negotiation process.

The

article isdivided intofourparts. PartI

pre-sents theprenegotiation phase, addressingtheissues,

objectives,

and

institutional constraints faced

by

each of the stakeholders. Part II, the negotiation phase, discusses the techniques used, stages of the process, alternatives generated,

and

the resulting

settlement. Post settlementis discussed in PartIII,

presenting the implementation

and

monitoring of theprogram, whilePart

IV

presents

an

analysis of the negotiation processbased

on

some

evaluatory criteria.

I.

The

Pre-negotiation Phase.

The

majorparticipantsinthenegotiation included the City of

Durham

(City), the Crest Street

Com-munity

Council (Council), the

North

Carolina

Department

of Transportation

(NCDOT), Duke

University (Duke),

and

theFederal

Highway

Admin-istration

(FHWA).

Outside groups also active at

variousstagesofthenegotiations included

Durham

County, the

Durham

Committee on

the Affairs of

BlackPeople, the People's Alliance,

and

the

Durham

Voter's Alliance.

After theproject'sproposalin1959, theCity

and

the

Department

of

Housing and Urban

Develop-ment

(HUD)

showed

reluctance in granting funds

untiladecision

was

made

on

theExpressway.

Con-sequently, this placed the City of

Durham

in

an

Theauthorswishtothank Richard SmithandLouis Allenwith

theNorthCarolinaDepartment of Transportation; Dick Hales

andLindaDelCastillowiththeCity ofDurham;andWillie

Pat-tersonandMikeCalhounwiththeCrestSt.CommunityCouncil.

Laura D. Bachle received a

Master's Degree from the

Department of City and

Regional Planning at the UniversityofNorthCarolina

at ChapelHill in 1986.

Laura Hill is a planner for

Orange County andthetown

ofHillsborough.Shereceived a

MRP

from the University

ofNorthCarolinaatChapel

Hill.

TimNifongisarecent grad-uate of the Joint Planning/

LawProgramatthe

Univer-sity of North Carolina at

A

typical CrestStreetresidence priorto 1984.

early opposition

participation plans

awkward

position.

They

lacked the necessary

re-sources to provide assistance to the Crest Street

residentsforimprovements,

and

they

saw

theneed

for

an Expressway

to alleviate traffic circulation

problemswithin theCity.

The

City'ssupportforthe

proposed

expresswaywas, asproposed, in conflict

withtheneighborhood'sdesiretoremainacohesive

community

withadequatelivingconditions.

Minor

street

improvements

(approximately $50,000 worth)

were

finally

approved

a

few

years priorto the

relo-cation of the neighborhood.

Oppositiontothe"CrestStreet"portion of the

Ex-pressway

began

as early as 1972,

when

a suit

was

broughttoenjoinconstructionbased

on

violations of the

North

CarolinaEqualProtection Act.In1973,

District Court granted a preliminary injunction.

These

legal activitiestookplace priortothe

forma-tionoftheCrestStreet

Community

Councilin1975.

The

First Attempt.

In 1978, the City Council directed the staff to prepare a relocation plan for the Crest Street

neighborhood. General data

on

the

neighborhood

was

collected

and

a Citizen ParticipationPlan

de-vised toinvolvecitizens intherehousingplan.

The

plan

was

never implemented. In retrospect,

partici-pantsfeel thatthefailure to

implement

theCitizen ParticipationPlan

was

mainly

due

totheplan's

em-phasis

on broad

representation.

As

meetings

be-tween

the parties progressed, it

was found

that a limited perspectiveprovided

by

a

few

citizens

who

had

already gained respect

and

support

from

the

neighborhood

could best serve the

community's

interest.

Around

the

same

timeas thefailed Citizen's

Par-ticipationPlan, the CrestStreet

Community

Council

filed

an

Administrative

Complaint

withtheUnited

States

Department

ofTransportation.

The

complaint

proposed

that routing of the expressway

by

the

North

Carolina

Department

ofTransportation

was

an

act of racial discrimination against the

neigh-borhood. Very soonthereafterall

work

ceased

when

theCityCouncilvotedagainst theExpressway. But

aftertheelections, the

new

CityCouncilreinstated

the plan,

made

ita toppriority,

and began

toexert

pressure

on

the

NCDOT

and

Governor'sOfficefor

assistance in the relocation of the Crest Street

Community.

In 1980, the

USDOT

advised the State that con-struction of theexpressway

would

violate theCivil

RightsActof 1964, thus validating the

Administra-tive Complaint. After debating for ten years, all

stakeholders

began

to

push

fora negotiated settle-ment.Time, attitude,

and

resources

were

themajor

factors in pushing all parties tobegin to negotiate

an

agreement.

II.

The

Negotiation Phases.

There

were

essentially

two

phasestothe negotia-tion process. After the

USDOT

informedthe State

that the administrative complaint

was

valid, the

City,

FHWA,

and

the

NCDOT

met

to

come

up

with

aplanof action.

A

Steering

Committee

was

formed,

comprisedoftopofficials

from

eachinterestedparty:

the

NCDOT, FHWA,

City, County, theCrestStreet

Community

Council,

Durham

Committee

on

the

Affairs of Black People,

Duke

University

and

the

People's Alliance.

The

formation of thecommittee occured

on

April of 1980, withthefirst meetingin June of that year.

The

Steering

Committee

was

essentially thefirst phase of the negotiation process.

One

of their

primary

undertakings

was

to appoint a task force

tostudytheneighborhood.Taskforce

members,

as

elected officialsor particularly visible

representa-tives for theirrespective agencies.

As

mid-level

ad-ministrators

and

technicians, thefirstassignmentof

the task force

was

to coordinate a survey of Crest

Street residents so thatopinions

on

various issues

couldbe compiled.Besidesappointmentofthetask

force, the Steering

Committee

reviewed five

alter-native routings of the freeway generated

by

the

NCDOT.

One

can surmise

from

theminutes

and

opinions expressed during this timethatpositional

bargain-ing, posturing,

and bad

faith negotiations

were

the

rule, ratherthan theexceptionduringthisfirstphase

of negotiations.

Power

relationships

were

estab-lished at the expense of a negotiated settelement.

The

steeringcommittee

was

unableto

move

beyond

their political posturing,

and

the firstphase

ended

when

theCityCouncil rezoned

some

property

ad-jacent to the

neighborhood from

"residential" to

"commercial"

on

November

10, 1980.

The

neighbor-hood

notified the

Department

of

Highways

thatthey

were

reassessingtheir rolein theSteering

Commit-tee

and

would

notparticipateina taskforcemeeting scheduled for

November

24th.

At

thispoint, aten

month

impasse

began

during

which

a series of separate meetings

were

held

be-tween the

NCDOT

and

the other parties.

The

NCDOT

reassessedtheir roleinthenegotiations

and

identified alternative courses of action in January

of 1981. Essentially, they

had

three: (1) drop the project

-

a politically

and

economicallycostly

alter-native; (2)pushtheproject through

and

runthe risk

of losing

good

relationswithall parties, including the

FHWA,

and

eventuallygoingtocourt overthe

project; or (3) negotiate a settlement.

Of

the three

alternatives, the latter

was

the

most

desireable.

Between

January

and October

of 1981, each of the

major

partiestotheconflict

met

separatelywith

the

NCDOT.

Basically, the

NCDCT's

aim

was

toget

the

neighborhood and

theCitytoresolvetheir

dif-ferences.

On

October

15, afullmeetingof the task

force took place, signaling a

new

phase of the negotiations.

Although

the

same

parties

represent-ing the

same

interests

were

there,

members

of the

politically visible Steering

Committee no

longer

participated.

Power

Relationships.

When

thetaskforcereconvened,the relationship

between

the

members

weresignificantly different.

Most

of thischange can beattributed tothe

legiti-macy

the

neighborhood

gained

by

virtue of the

pre-liminarily successfulAdministrativeComplaintfiled

withthe

USDOT

and

of the1980Steering

Commit-tee walk-out in protest of city actions.

Significantin this

new

round

ofmeetings

was

the

relativelack ofany

power

strugglesbetween the

par-ties.

The

task force

saw

the Expressway extension as a

problem

to be solved

by team

effort.

Conse-quently, it

was

at thispoint that the personalities

ofthetaskforce

members

really aidedinnegotiating

a settlement.

As

one

intervieweeput it,"the

chem-istry

was

justrightforasettlement."

The

staff

from

theCity

and

the

NCDOT

ended

up working

closely

togethertosolve theproblem.

The

Councilclarified

that they

were

only

opposed

to the effects of the

freewayextension,

and

nottothefreewayitself.This

made

itpossibleforgenuineprogressto

commence.

The

FHWA

playedavital role

on

these sessions

by

interpreting the laws governing

NCDOT

conduct broadly so that solutions could be generated.

Second

phase negotiations took place

from

Oc-tober of1981 to

December

of 1982. Meetings

were

held

two

to three times a

month.

The

negotiators themselves

had

severetime constraintsthatgavethe

proceedingsasense ofurgency

—

afactor that aided the settlement.

During

the course of the second phase of the negotiations, an approximate threeyear time table

was imposed on

the agreement. Thisgreatlyaided

all thepartiesin ensuring

prompt and

timely

com-pliance with settlement provisions.

Inthebeginningofthe negotiations, the

NCDOT

suffered

from

a

poor image

inthe eyes of the Crest

Street

Community

Council,

and

notwithoutreason,

based

on

the precedent set

when

the

Expressway

displaced a similar

community

in the late 1960s.

Thisbias

had

toberesolved beforethenegotiations

could continuesuccessfully.

However,

as aresult of

themeetings

between

theCouncil

and

the

NCDOT,

theCouncil'sattitudetowardthe

NCDOT

changed,

and

the

neighborhood

realized the

NCDOT

was

willing to

work

with them.

Strategies

and

Alternatives Generated.

Despite the willingness of the parties to

work

togetherduring thissecondphase ofnegotiations,

theirsense of urgency,

and

theirrespectforthe

con-cerns of each actor, the mitigation plan

and

the negotiated settlement

would

neverhave beensigned

if

some

key events

had

not occurred.

Primary

among

these

was

the state legislation approval of

therightchemistry

sense ofurgency

last resorthousing fundsforpublic agencies (N.C.

General Statute §. 133-10.1).

The

funds,

approved

in1980,

had

been usedbefore, butthe

NCDOT

ad-ministration

had

not

made

a habit of using them.

The

flexibility

shown

by

the

NCDOT

and

FHWA

negotiators

made

it possible for those funds tobe

used. Ifother parties

had

beeninvolved, itisquite possiblethatthosefunds

may

haveneverbeen

utiliz-ed,

and

consequently,

no

settlement reached.

Another

significanteventconcerned the

amount

newdesign ideas oflandneededtobuildtheinterchange.This

became

a

major problem

inresolving thedispute.

About

the

timethe negotiations were underway, a

new

inter-changeconcept, called the"urban

diamond"

was

be-ing tested in Florida. It'sattractiveness

was due

to

itsconservative use of land as

compared

to contem-poraryinterchangedesigns, allowingtheinterchange

to be "squeezed" onto significantly less acreage. Subsequently, thisdesign

was

incorporated intothe Crest Street plan.

The

NCDOT,

becauseit

was

abletouselastresort

housingfunds,

waived

the usual requirement that

the City acquire a share of the right-of-way for a

major

state

roadway

withinit'sbounds. This waiver

freed

money

for rehabilitation

and

relocation,

and

encouraged cost-sharing efforts

between

the City

and

the

NCDOT.

Thisdecision

by

NCDOT

was

a

significantbreakthrough inthe negotiations.

Previ-ously, the City

had

a "bottom line" for

monies

to

be used for Crest Street

Neighborhood

improve-ments,

which was

not barely

enough

to complete

the

needed

rehabilitation for the neighborhood.

A

litany of route alternatives

were produced

throughout both phasesof the negotiation process. All but

one

was

introduced

by

the

NCDOT.

By

December

1981, threealternatives

had

been

tenta-tively selected.

At

this point, the

neighborhood

demanded

that a mitigationplan

accompany

each

alternative.

The

mitigation plans

were

formulated

and

eventually a revised version of the best

alter-native

was

adopted

by

theparties. Ingeneral, each

alternativeroute

and

respectivemitigation plan

was

reviewed, then relative strengths

and

weaknesses

were

discussed to arriveat theselected agreement.

Before...anabandonedschool

Outcome

Settlement.

The

mitigationplan signed

by

the

Durham

City Council, the

NCDOT

and

theCrestStreet

Commu-nity Council containsthemitigationefforts proposed

by

the

above

parties,

and

input

from

the

FHWA.

Funds

used for the relocation project included generalrevenuebonds, Section 8

New

Construction, Section 202, Section 8

Moderate

Rehabilitation,and

Community

Development

Block Grants. In one

area,the

NCDOT

paidallcostswithinthe

Express-way

corridor, with area activitiescost shared

be-tween

the State

DOT

(%

of thecosts)

and

theCity

(V3ofthecosts).

Commercial

redevelopmentis

pro-posed

for part of the City's land, with costs paid

by

the City

and

proceeds

from

sales shared by

NCDOT

and

the City of

Durham.

Construction

and

rehabilitationofdwellingunits

consists of the following:

65 houses rehabilitated (moved)

21 unitsinHicks Elementary Schoolrehabilitated

(moved)

8

condominiums

rehabilitated in place

12

new

single family

homes

45 Crestview

Apartments

4 houses rehabilitated in place.

Recreation facilitiesinclude a park, baseballfield,

forconstructionofanoiseabatement wall

and

land-scaping along the right-of-way.

Inordertoaccomplishthe relocationproject, the

City

and

NCDOT

agreed toofferrelocation

assist-ance benefits (which includes last resort housing

benefits) for all displaced Crest Street residents.

Relocatees

had

basically threeoptionsunderthelast

resort housing provision: (1) to remain

owner-occupants

and

purchaseareplacement dwellingwith

relocation assistance based

on

rehabilitationcosts,

mortgage

costs, cost of property acquisition,

and

fairmarket value of theexistinglot; (2) to remain

as tenants eligible for rental assistance payments, through statefunding (last resort housing) and/or

federalassistance (Section202federal loans); or(3)

to convert

from

tenant to

home-owner

through

deferred

mortgage

loans provided

by

the City.

Both the City

and

the

NCDOT

agreed to assist

the

community

withgrant

and

subsidyapplications.

Today, the relocation assistance has resulted in

an

i increase in

home

ownership

from

15%

to almost

90%

of the Crest Street residents.

A

secondplan, theCrestStreet

Community

Rede-velopment

Plan, completed

by

thecity

on

March

31, 1983, provides a

more

detailed description of

theoverall agreement, indicating projectcosts,

proj-ect proposals,

and

steps for implementation.

III. Post Settlement Phase.

Task Force meetings continued once a

week

for

almost

two

years. Presently, meetingsareheldonce

a

month

at City Hall.

The

parties

now

attending

thenegotiations includeone neighborhood

represen-tative,

and two

representatives

from

both the City

and

the

NCDOT.

Sometimes

anauditor or other

in-terested party attends. All

problems and

progress

reports are discussed at the meeting.

Presently, the relocation of residentsiscomplete.

Most

relocateeshave chosento

own

their

_{own home}

as

opposed

to renting it,

and

also have chosen renovationover

newly

builthomes. Citycostshave exceededearlierestimates,

and

are

up

to$4.9 million

ias a result of

neighborhood

preferences

and

ill-advised land appraisals.

The

relocation site continues to be

under

enor-mous

growth

pressure.

A

portion of the potential relocation land

was

soldduringthenegotiation

pro-cessto establisha racquet ball club. Currently, the

VA

Hospital locateddirectlysouthoftherelocation

sitewantstolease

some

propertytobuild afivelevel parkingdeck. Itisalsoanticipatedthatthisproperty

After. ..anewsenior_center.

willappreciate considerablyas aresultof the

East-West

Expressway.

Post Settlement-Settlement.

The

NCDOT

placed a renovatedhouse/officenear

the site to facilitaterelocation.

They

maintained a

staffthat

worked

closelywiththeCityinimproving

thesite

and

coordinating financingfor the residents.

They

alsocoordinatedallconstruction

and

moving

of structures.

The

City

and

the

NCDOT

have a

maintenance agreement for landscaping, site im-provements,

and

infrastructure.

Few

changes have been

made

tothe original

Rede-velopment

Plan

and

Municipal Agreement. Largely

due

to the

combined

efforts ofallparties in

prevent-ingfurther

amendments and

hencefurther

complica-tions to the project, thosechanges that have been

made

have beenrelativelyminor. Forinstance,

due

to the

number

ofpeople

who

wishto

own

their

own

home

rather than to rent, the apartments planned

were changed

into condominiuns.

essential parties

crucialconsiderations

Evaluation

Jim Arthur, as a mediator for the

New

England

MediationInstitute,has

had

extensive experiencein

dealingwithparties to

development

disputes

and

in

working

withthosepartiestobringabouta

mutual-ly acceptable resolution.

At

a recent session as a guestlecturer atthe U.N.C. School ofLaw, he

was

askedtoidentify factorshefelttobeessentialto

suc-cessful negotiation.

He

identified six factors: (1)

agreement

on

theessential parties involved in the dispute;(2)agreement

on

what

thecritical issues at

hand

are; (3)abalanceof

power

between

the

essen-tialpartiesinvolvedinthe negotiations; (4) asense ofurgencyto settle

among

theparties; (5) flexibility

asto anacceptable settlement;

and

(6)uncertainty regardingthe ultimate correctness of thecourseof action being pursued

by

each party.

These

criteriaare similartofactors identified

by

others in the field of mediation.

As

a tool for evaluating negotiationsuccess, criteriacanidentify

factors thataid

and

hindernegotiations. This

pro-vides a

means

oflearning

how

to

improve

the

nego-tiation process.

Agreement

of Essential Parties.

The

old adage"too

many

cooks spoilthe broth"

is asapplicable to negotiated settlement as it is to

theculinaryarts. If too

many

parties areinvolved

in

an

attempttoresolve adispute, negotiations

may

become

so

complex

that final settlement is

impos-sible. Furthermore, successfulimplementationofa negotiated settlement isonly possible ifall parties

criticaltothesettlement areinvolvedinthe negotia-tion process.

Resolution of the Crest Street dispute involved

paring

down

the

number

ofparties

from

those

mere-lyinterestedtothoseessentialto implementationof

the agreement.

During

the

two

years in

which

negotiationstookplace,

no

fewer thannine separate

groupswere, at various times, offered the

oppor-tunity to participateinthe negotiations.

However,

allpartieseventuallyrealized that

no

more

thanfive

of these groups

were

vital to the success of the negotiatedoutcome.Therefore, the task force

who

forged thefinal mitigationplan were: (1) theCity,

whose

municipal limits included both the Crest

Street

Neighborhood

and

the

proposed Expressway

segment; (2) the

NCDOT,

which

served as project overseer

and

final authority over the

proposed

freeway; (3) the Council,

whose members

repre-sented the

neighborhood

tobedisplaced; (4)

Duke

University,

which

was

a

major

landowner

of

prop-erties adjoining the

neighborhood

relocation area;

and

(5) the

FHWA,

asortofdefactomediatorearly

on

inthe process,

which

represented the substantial

federal interests (both legal

and monetary)

in the dispute resolution. It

was soon

evident that only

three parties

—

the City, the Council,

and

the

NCDOT—

were

essential to theresolution

and

im-plementation of the final mitigation plan.

Only

these parties signed the final agreement.

Critical Issues.

Just asitisimportant toincludeallparties

perti-nent to the final agreement, it is also critical that

the negotiators are in accord about the issues at hand.

The

inherent natureof the CrestStreet

con-flictdictatedclarity.

Can

astateroutea

much

need-ed

highway

throughapoor, close-knit

community,

when

no

viablealternative exists?This

was

theissue

recognized

by

allthreeparties. But even

though

this

was

recognized early

by

all the

major

parties

in-volved, theinterestsheld

by

each

major

participant biased perceptions

and

coloured interpretationsof

the

major

issue.

On

the

one

hand, theCityin1979received

what

was

essentiallya

mandate from

theelectorate that

the East-West

Expressway

was

to be completed at

any

socialor

economic

cost.This

was

a

major

plank

intheplatformof the

mayor

and

many

of the

coun-cil

members

elected at the time.

The

Crest Street

Community,

meanwhile,

had watched

the physical

condition of the

neighborhood

deterioratesteadily

over the years. City aid

and

reparation services

diminished, due

presumably

to thebelief that the

neighborhood

was

"on its

way

out."

On

the other

hand, the routing

was

subject to the constraints of

relativelyintensecommercial, industrial,

and

insti-tutional

development

in

West

Durham,

so the

NCDOT

had

littlereal politicalor

economic

choice

in proposing the freeway corridor as it did.

It

was

only

when

the individualinterestsofeach

major

party tothe dispute

were

recognized

by

the

other principals as legitimate that the partieswere

abletoviewthe

major

issues inthe

same

light,

plac-ing the negotiationsina perspective capableof

ren-dering

them

at least potentially successful. This

abilityto"seetheotherside"

was

brought

on by two

factors. (1)theattainmentof

power

and

legitimacy

by

theessential parties,

and

(2)

moving

the

negotia-<f

: Neighborhood residentsand

NCDOT

_officialsat ahouse _closing.

tions

from

the politically visible steering

commit-tee tothelessvisibletaskforce.

A

balance ofpower,

i

1

critical to issue recognition

and good

faith effort,

existed.

Balance of Power.

Both

in the context of focusing attention

on

the

critical issuesinvolvedinadispute,

and

of

guaran-teeing thateachparty's interestsareconsidered

fair-ly, the balance of

power

among

partiesattempting tonegotiate a dispute settlementisessential.

Given

the verypoliticalnatureof thesettingsurrounding

theCrestStreetneighborhoodconflict,itisprobable

that there

would

have been

no

negotiated settlement

had

each

major

actor in the dispute not posessed

legitimacy.

And

with legitimacy

came

the

power

represented

by

status substantiallyequal tothat of

the other parties involved.

Eachparty derivedits

power somewhat

different-ly.

The

State of

North

Carolina, as represented

by

the

DOT

here, possesseda

number

ofpowers.

One

wasitslegalauthorityastheinstrument oftheState,

whereinitcould utilizeeminent

domain.

With

this

power

it could

move

pretty

much

whomever

and

whatever it needed, while compensating those

moved

fairly, in order to secure right-of-wayfor a

public thoroughfare.Further, the

NCDOT

posessed

the

"power

of the purse."

As

such, within its

statutory authority, it

was

able to finance the

Ex-pressway

by

whatever

means

were suitable

and

necessary. Indeed, it

was

this very

power

relative

to legislative authorization for last resort housing

payments

in 1981 (N.C.General Statutes133-10.1)

which

was viewed by

allpartiesas a

major

turning point innegotiations. Yet, the State's

powers were

not limitless, as a 1980 advisory

memo

from

the

USDOT

Director ofCivilRightsadvising the State

DOT

pointed out.

The

City's

power

was

also multi-dimensional.

With

itszoning

power

theCity

was

ableto

tighten-or loosen

—

thenoose

around

theneckofthe

neigh-borhood.

Of

even greater importance

was

the derivative

power

of theCity conferred

upon

by

the

voters,

who

clearly stated their desire that the

freeway bequicklycompleted inthe1979city elec-tions.Nevertheless, likethepowersof theotherstate

arm

—

the

NCDOT—

bothofthesepowersare legally

constrained(zoning designations, forexample,

can-not be arbitrary)

and

politically constrained (as

specific interests

much uncertainty

when

the Council

withdrew from

thenegotiations

in

November

of1980

when

the

Durham

City

Coun-cil

was

perceived as actingin

bad

faith inrezoning

a residential

neighborhood

parcel as commercial).

The

ultimate

power

oftheCouncil

was

largelyde facto, deriving

from two

incidents alludedtoabove.

The

Council's

September

1978 filingof

an

Admin-istrative

Complaint

withthe

USDCTT

alleging racial

discrimination,

and

subsequent preliminary

agree-ment on

thematter

by

the

USDOT,

established the

Council as a

power

to be reckoned with.

Absent

some

intervening event, at thevery leastthe State

was

subjecting itselfto the

burden

and

expense of futurelitigation; at themost, the Council

had

the

potential abilitytoprecludethedisputedexpressway

segmentaltogether. Inthe negotiations thatensued

afterthisevent, Council'sact ofterminating

negotia-tions

when

theCityactedin

bad

faith inthe rezon-ing incident

made

itclearthatCouncil

had no

inten-tions of "lying

down

and

playingdead,"but

would

have tobe dealt with as

an

equal. But aswith the

other parties, the Council's

powers

were

not

absolute

—

theactofwalkingout of the negotiations

could wellhaveresultedinthefinal

breakdown

of negotiations, with

no

guaranteethat the verdict of theracialdiscriminationcomplaint

would

bein their favor.

The

effectof thesubstantial, but notunrestricted,

powers

possessed

by

each partytothenegotiations

was

tocreateaclimatewherein eachside

was

likely

togive

due

consideration totheviews

and

interests

ofotherparties,inordertohavethatcourtesy

recip-rocated.Moreover,thebalanceof

power

existing

—

where no

clear

winner

was

likelyto

emerge

via

any

non-negotiatedsettlement route

—

greatlyincreased thelikelihood

and

desirabilityofanegotiated

settle-ment on

the Crest Street case.

A

Sense ofUrgency.

The

sense ofurgencyforarelativelyquick

settle-ment

placed

upon

each of theparties

by

the

chro-nology

of events thattookplace before

and

during

thenegotiationsaided the agreement. In the City's

case, theelectorate

had

made

itclearthatit

wanted

the

Expressway

finished quickly.Trafficcongestion

in

West

Durham

was

worsening,

and

continuation

ofanunresolvedsituationcreatedapolitical liability

fortheCity Administration. All of thesefacts

and

events helpedto spurthepartiestowardanegotiated settlement, butthere

was

a single factorwhich, in

the end,

was one

of the

most

important catalysts

for the February 1982 final settlement.

When

the negotiations began, theCityof

Durham

had

already

been allocated

HUD

monies

torehabilitateas

many

as75

low-income

rentalunitsplus 20-yearrent

sub-sidies for those units.

Durham

had

already

con-sidered

and

rejecteda

number

oflocationsfor these

units,

and

unless they (or

some

portion of them)

were

placed

by

March

of 1982, the allocation

was

to be

withdrawn by

HUD.

So

when

the chance to utilize those allocated

monies

presenteditselfinthe

CrestStreet case, thepartiesseizedtheopportunity

and

carried

on marathon

negotiation sessions in ordertobeat the

HUD-imposed

deadline for useof

the subsidized housing funds.

With

respect tothe

NCDCTT,

the

Department

had

already invested

tremendous

sums

of time

and

money

inplanning

and

inoverseeingcompletionof

approximately

60%

of the East-West Expressway. Consequently, itcouldhardly

back

away

from

the proposed"CrestStreet"freeway segment.

And

every

delay in the construction schedule

pushed

up

the

final cost of the project a little more.

For itspart, theCouncil

knew

that

no

improve-ments were

going to be

made

to its

neighborhood

by

theCity until

and

unless the

Expressway

prob-lem

was

resolved. Further, theCouncilfeared tobe outofstepwiththeconservative national trend then

occurringrelativetothe dispute.

The

USDOT

offi-cials,

who

had

advised the

NCDCTT

that its

pro-posedplanfortheExpressway probablyviolatedthe

civil rightsof the CrestStreet

Community

citizens,

had

served

under

President Carter.

By

1981,

new

officials

were

inplace thatmight havereversedthe

advisory opinion

on

theAdministrative Complaint filed

by

the Council. Thus, the Council, as wellas

theCity of

Durham

and

the State

DOT,

felt

pres-sured

by

factors

beyond

their control to act in

resolving the CrestStreet conflictasquicklyas

was

judiciously possible.

Uncertainty.

Sometimes,

when

a party involved in a conflict

maintains

an

almost irrational belief in its course of action as "the only right course," a negotiated settlement

becomes

impossible. But

where some

uncertaintyexistsastothe correctness of thechosen coursebeingpursued

by

any

individualparty, that

lack of assurednesscanbeseized

upon

by

the

nego-tiation process to bring the parties toward

some

more

central, mutuallyagreeablecompromise. Lack

ofcertaintyin thiscontext

means

onlythata party

itsobjectives,

and

not that theparty lacks

convic-tion as to those objectives.

In the Crest Street negotiations, each party

had

specific interestsin mind, butuncertaintyexistedas

to

how

tobest realize thoseinterests.

The

City, for

example, clearly

wanted

the East-West

Expressway

completedfor

economic

and

political reasons. But

the City

was

unsure as to

whether

it

was

essential

todisplacetheCrestStreetneighborhoodinthefirst

place,

and

ifso,

how

tomitigatesuchmassive

com-munity

disruption. Forthe

NCDOT

as well, there

were

political risks

and

associated costs related to

theconflict

which

resulted inuncertainty.

NCDOT

was

used to getting things done,

and from an

in-vestment standpoint neededtofinish the

proposed

Expressway segment

as quickly as possible. Yet, while theywere

more

insulated

from

the repercus-sionsofdisplacingtheCrestStreet

Community

than

the City, the State Administration in

power

at the

time

had

a veryreal interest inminimizingthe social

and

political impact of displacement.

The

subse-quent

dilemma

for

NCDOT—

whether

to

push

for-ward

asplanned, orputthings

on

holduntila viable

alternativeproposal could bederived

—

was

fraught

with uncertainty as to: (1)

how much

time

and

money

to spend developing

new

alternativedesigns for the freeway in order to mitigate its social

im-pacts, (2) the role the State should play in

reloca-tion of displaced residents (both administratively

and

financially),

and

(3) its role inrelation to the

desires

and

authority of the City in the dispute.

The

Council

wanted

bothto maintainthe integrity ofthe CrestStreet

Community

and

to

improve

the quality oflifeforitsresidents. Buteven with

what

appearedtobea strong case ofracial discrimination against theState, the Council

was

unsure

whether

stopping thefreewayaltogether

was

theproper path topursue. Afterall,

Durham

didneed the

Express-way

to

improve

trafficflow

and

relievecongestion in the western portions of the City (including the CrestStreet area),

no

trulyviablealternativeroute for the freeway existed,

and

putting a halt to

Ex-presswayconstruction in

no

way

assuredthe

neigh-borhood

of

any

improvements.

The

net result

was

that the inherent uncertainty

among

the

major

actorsin the Crest Street dispute contributed to a climate conducive to a successful

1

resolutionoftheconflict.

The

finalmitigation

agree-ment

replaced theuncertaintyexperienced

by

each

sidewithassurancessafeguardingthebest interests

of all

major

parties in the Crest Street conflict.

Celebrating a newCrest Street.

Flexibility.

It is self-evident that settlement of a dispute is

enhanced

where

flexibility as to the resolution of pivotalissuesexists, sincethisallows a

whole

range

of potential

outcomes

from

which

a mutually

ac-ceptablechoice

may

beselected. IntheCrestStreet

caseit

would

befair to saythat

by

thetime

negotia-tionsbegan,allessentialpartiesbelievedin the

reali-ty, ifnotthe necessity, ofbothconstructingtheCrest

Streetsegmentof theEast-West Expressway

and

the

relocating of the Crest Street

neighborhood

as a

community.

And

as the case history discussion

makes

clear, a

number

of alternative

ways

existed

wherein these priorities might be accomplished.

That

alternative chosen

was

the plan that proved

tobethe

most

acceptableto therespective

constitu-encies represented

by

each of the negotiators. This

was

a

way

ofusing flexibilityin anon-threatening manner.

Conclusion

The

essentially successful nature of the Crest

Streetnegotiationcan be

summed

up

inone

statis-tic Beforethe relocation,

15%

of theresidentswere owners. After therelocation,

94%

of the residents

were owners.

On

May

3,1986, alloftheparties

met

tocelebrate theirsuccessat the

New

Bethel Baptist

Church. Joy

and

satisfaction

emanated from

every

face.

The

most

telling hallmark of a successful

negotiation

—

lasting goodwill

on

the part of all

parties

—

was

displayed

by

the entireneighborhood.