Congratulations are in order for thirty-two counties whose growth plans were approved at last Wednesday’s meeting of the Local Government Planning Advisory Committee. Adding the fifteen counties whose plans were already in effect, there are now forty-seven growth plans in place. If you are among that number, you are to be commended upon a job well done!
As most local officials well know, Tennessee’s growth policy law requires each county, in cooperation with all municipalities in the county, to formulate a plan for growth and rural preservation over the next twenty years. Completion of a growth plan is a top priority, since local governments with a plan in place on July 1 of this year become eligible for bonus points in several important grant evaluations.
The purpose behind the growth policy law, one which is explicitly stated in the law itself, was to encourage communication and cooperation among local governments. It is a tribute to the framers of the law that the process has worked so well and so quickly in over half of the state’s counties. This success also serves as an example for other counties where the process has been more challenging: the law does work!
For those counties in which the local governments are not able to agree upon a plan, the law provides a method of dispute resolution through administrative law judges in the Administrative Procedures Division of the Secretary of State’s office. As yet, no counties have entered this phase, although several may in the very near future. When negotiations between the local governments and the coordinating committee cannot result in an acceptable plan, any one of the local governing bodies may pass a resolution declaring an impasse, triggering the involvement of the administrative law judges. The requirements for this process as stated in the law itself are fairly brief and allow the Administrative Procedures Division discretion in structuring procedures. The Division has put together a packet of information which will be distributed to each party as soon as the dispute resolution process begins. However, in summary form the process goes like this.
The system developed by the Administrative Procedures Division calls for a two-pronged approach: one for mediation and the other for more formal arbitration if the mediation is not successful. Both will proceed simultaneously, but separately. As soon as a local government declares an impasse, two administrative law judges will be assigned to the case, one for each phase. The Administrative Procedures Division, explaining this dual approach, states that it “is the most fair, efficient and economical way to proceed,” since mediation and arbitration require separate judges to be most effective. This is the case because each method, by its very nature, has differing requirements: mediation is a fairly informal process in which the parties work together to identify interests of each and alternative ways by which these interests may be achieved. In mediation the rules of evidence do not apply and there is no record of the proceedings. The arbitration phase, on the other hand, requires a formal hearing on the record in which rules of evidence and procedure apply. To avoid all questions of partiality or impropriety, the judge who participates in mediation (and therefore hears evidence that will not be admitted during a formal hearing) cannot be the same as the judge during the arbitration phase. Even though appointment of a three judge panel is one of the options under the law, the process outlined by the Administrative Procedures Division satisfies the law’s requirements as well as the interests of each party in reaching a fair and expeditious decision.
Promptly upon receiving the case, both judges will contact the parties with procedural instructions. The mediator will schedule an immediate conference. The arbitration judge will set a date for a formal hearing, in approximately six months. Initially, the primary focus is mediation since this is the preferred method of resolution; if the dispute is settled during mediation, then the hearing will be unnecessary. All sessions will be held in Nashville. The parties consist of the county and each municipality within the county. The coordinating committee is not a party, but its members may attend the sessions. The parties may bring as many representatives as they wish, although for practical reasons it could be necessary for the judge to limit the number which actively participate at one time. At the outset each party will be asked to determine a contact person to receive communications. Parties will also be asked to sign a form acknowledging an understanding of the rules and an agreement to abide by them.
To insure that the entire process will be completed in the least amount of time, the judges will instruct the parties to begin preparations for the hearing while engaging in mediation. If it becomes clear that mediation will not produce a resolution, the process moves to arbitration. A formal hearing is conducted in Nashville, after which the judge will propose a non-binding resolution for consideration by each local government. If the resolution is not accepted by all parties, they may submit final recommendations to the judge, who then makes a final decision adopting a growth plan. Any time during this process the judge has statutory authority to consult with experts in urban planning, growth and development.
The costs of the entire process will be apportioned among the local governments based upon population, although the judge has discretion to apportion in a punitive manner if one or more of the participants has acted frivolously or in bad faith. These costs include hourly rates for each judge and compensation for court reporters and consultants. Of course, each party is individually responsible for its own expenses, such as legal advice, transportation, and lodging.
To those of you who have already adopted a growth plan and therefore bypassed the dispute resolution process, we again offer you congratulations. To those of you who are still working on a growth plan, we offer any help that CTAS can provide. There is a great deal of misinformation regarding the dispute resolution process, so please feel free to contact the CTAS consultant for your area if you have any questions or need other information.