Originially from: World Arbitration and Mediation Review (WAMR)

“Reg-Neg” and Principled Negotiation
Using ADR to Negotiate Land-Use and Development Regulations
By Charles G. Field, Ph.D, JD. Mr. Field is Vice President and Regulatory
Counsel of the National Association of Home Builders. The following is based on
a presentation Mr. Field gave to the Columbia University Seminar on Land
Policy and Urban Development.
Housing and land use are governed by a regulatory process that no longer
serves the goals of housing. Traditional housing advocates feel their concerns are
being crowded out»by powerful new interests in an unfamiliar and adversarial
regulatory climate.
There are, however, some promising areas for reform. The techniques of
principled negotiations and negotiated rulemaking have been used with some
success on the federal and local level, and show great potential for overcoming
the problems presented by the current rulemaking process.
Frustration with Existing Process
The existing regulatory system served housing well for many years. Beginning
in the 1970s, however, the regulatory agenda expanded beyond purely housing
matters to include environmental, energy, and health concerns. These concerns
were championed by powerful new advocates from non-housing backgrounds.
Many housing advocates have been slow to adjust to these new concerns and
have consequently lost the regulatory battles, as they would put it, to these newer
players. Housing advocates decry the impact of expanding regulation on
affordability and segregated residential patterns. They also are concerned that
newer interests have skewed priorities in the regulatory process: preserving
wetlands appears more important than providing locations for new housing;
endangered species outrank people in need of housing; national energy policies
lead to more expensive new homes.
As a result, there is a measure of frustration and confusion among traditional
housing advocates.
“Before and After”
The changed playing field is best understood by looking at several “before and
after” snap-shots: