Can therapeutic jurisprudence improve land use/planning disputes?

Land use or planning disputes are the source of much conflict and stress for people particularly if they cannot afford legal representation.  Is there a role for TJ and  legal clinics?  Guest blogger Michael Widener says yes…

My friend Rick, an architect and contractor, with his wife, Chrissie, finally found the perfect commercial building for his studio in central Phoenix. They enjoyed it for two years while a car dealership assembled a number of parcels surrounding the studio on 3 sides. When the dealership began the rezoning process, it announced it needed to close a portion of a local street for its project. That little street stub was the studio’s employees’ (and a neighboring bank branch’s users’) route of choice to mitigate navigational hazards caused by a “raceway”-like major arterial nearby.

Rick and Chrissie went to one public hearing after another; and, while educated and articulate “neighbors” bounding the site, their objections were disregarded in the votes of hearing officers and citizen’s panels considering the project for zoning and roadway abandonment approvals to the Phoenix City Council.

Unsurprisingly, Rick increasingly felt disrespected, his voice unheard – one planning commissioner even made a joke at the couple’s expense. The couple was disillusioned about the validity of these hearing processes. They were disadvantaged by no attorney representation (it seemed) and no support from the economic development apparatus of the city and its Council representatives that entirely supported the new dealership project.

Eventually, they hired a lawyer (this blogger) and their circumstances turned for the better, mostly. Yet Rick and Chrissie still smart at the very notion that they needed to hire counsel to advise them on how to be heard (and acknowledged, their concerns addressed) by this community’s land use process’ actors. And their story mirrors the narrative of thousands of everyday citizens whose “lots in life” are affected, quite often adversely, by land use and development approval processes.

I sense this acutely because my lot in life includes being a contract-based zoning adjustment hearing officer for that same community. A person’s home or small business location is where adult memories of their owners reside, in addition to being (frequently) their owners’ largest single lifetime investments.

Too often city processes in these public controversies, whether big or small, do not adequately consider these owners’ emotional well-being. Processes that ignore legitimate concerns or grind down the neighbors’ positions are unhealthy-– even when the results have substantive merit–that is, when the outcome is “right” in material dimensions, serving the best interests of the majority in the enclave and the city, writ large.

Consultations are tricky when emotions run high and developers resist admitting any weaknesses in their project proposals as they affect surrounding neighborhoods. Of course, multi-stakeholder mediation or related processes take time from stakeholders’ schedules and cost money from someone’s budget.

My paper, Land Use Consultations Advancing Therapeutic Jurisprudence: Ripe for Clinical Trials (forthcoming in the Cardozo Journal of Conflict Resolution (Vol. 18, no. 1, Fall 2016), and posted here on SSRN), proposes another pathway that largely resolves the expense problem while addressing a number of other issues, including the public’s shrinking trust in local government and the development community.

The paper addresses a proposed experiment at the confluence of currents of public disenchantment, underrepresentation and American lawyering-education transition. It advocates creating legal clinic in law schools specializing in resolution of land use controversies.

The American Bar Association’s Task Force on the Future of Legal Education recently affirmed that 21st Century legal education needs “a much stronger culture of innovation, nimbleness and attention to factors outside the academy.”

As explained in my paper, focused clinic-student participants will increase their sense of citizenship and appreciation of the power of therapeutic jurisprudence to elevate public confidence in local government land use processes. At the same time they will learn practical problem-solving skills like active listening and task-absorption.

This endeavor has built-in challenges, which I acknowledge and address head-on. The risk-reward balance, however, favors engaging both law schools and their surrounding communities in the proposed clinic endeavor.

Rick and Chrissie would approve.

Michael Widener is an Adjunct Professor at Arizona Summit Law School where he teaches property and land use law.  He is a Zoning Adjustment Hearing Officer for the City of Phoenix, and Of Counsel to the Law Firm of Bonnett, Fairbourn, Friedman & Balint, P.C.

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