When it comes to disputes over land use, things can get complicated quickly.

Whether it’s a disagreement between neighbors over property lines, a developer and a community group over a proposed project, or a dispute between a landlord and tenant over the use of a rental property, a rejected planning or rezoning application before a government board or commission, land use disputes can grow emotionally charged and difficult to resolve.

One tool that can help resolve these types of disputes is arbitration. Arbitration is a form of alternative dispute resolution (ADR) that involves bringing in a neutral third party to hear both sides of a dispute and make a binding decision. It offers a faster and often less costly alternative to traditional courtroom litigation.

If you are considering arbitration or another party is compelling you to participate, consult a land use attorney immediately.

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What Is Arbitration?

Let’s define arbitration before we discuss how to use arbitration in land use disputes. Arbitration is when two or more parties agree to submit their dispute to a neutral third party (the arbitrator) for a binding decision. The arbitrator is typically an experienced attorney or retired judge with experience in the law related to the dispute.

Arbitration differs from mediation, another form of ADR that involves a neutral third party (the mediator) helping the parties reach a mutually agreeable resolution. In mediation, the mediator does not have the power to make a binding decision. The parties are free to walk away from the process at any time.

In arbitration, the arbitrator renders a final and binding decision, with limited grounds for the parties to appeal the decision.

Arbitration can be voluntary or mandatory. In voluntary arbitration, the parties agree to submit their dispute to arbitration on their own accord. In mandatory arbitration, the parties must submit their dispute to arbitration as a condition of a contract or agreement they have entered into.

Examples of Land Use Disputes That May Be Suitable for Arbitration

Land use disputes can take many forms, but common examples suitable for arbitration include:

• Boundary disputes: Disputes over property lines and boundaries between neighboring properties can be difficult to resolve, especially if the properties have been in the same families for generations. Arbitration can provide a way for the parties to have a neutral third party hear their dispute and reach a binding decision.
• Zoning disputes: Disputes over zoning and land use regulations can arise when a property owner wants to use their land in a way that current zoning laws do not permit. Arbitration can enable the property owner and the zoning authority to reach a compromise that allows the owner to use the property appropriately.
• Easement disputes: Easements are legal rights that allow one property owner to use another property owner’s land for a specific purpose, such as accessing a road or utility line. Disputes can arise when the scope of the easement is unclear or when one party wants to terminate the easement. Arbitration can allow the parties to clarify the easement terms and reach a binding decision.
• Landlord-tenant disputes: Disputes between landlords and tenants overusing rental property can be common, especially when the tenant uses the property for a purpose not permitted under the lease. Arbitration can allow the parties to resolve their dispute without going to court.

The Arbitration Process

If the parties to a land use dispute agree to submit their dispute to arbitration, the process typically involves the following steps, which you should take with the guidance of your land use attorney:

Choosing an Arbitrator

The first step in arbitration is choosing an arbitrator to hear the dispute. This is a critical step, as the arbitrator will make a binding decision to resolve the dispute.

Parties can choose an arbitrator in several ways. One option is to select an arbitrator from a list provided by an arbitration organization, such as the American Arbitration Association (AAA) or JAMS. These organizations maintain rosters of experienced arbitrators who have undergone training and experience in different law areas.

Another option is for the parties to agree on an independent arbitrator. This may be a retired judge, an experienced attorney, or another professional with experience in the law related to the dispute. The parties may also choose to have a panel of three arbitrators, with each party selecting one arbitrator and the two selected arbitrators choosing a third.

Regardless of how the parties choose the arbitrator, they must select someone impartial, knowledgeable, and experienced in law. The arbitrator should also be available to hear the dispute promptly and willing to devote time and attention to the case.

Preparing for the Hearing

Once the parties have selected an arbitrator, they must prepare their cases for the arbitration hearing.

This involves several key steps:

• Gathering evidence: The parties must gather all relevant evidence to support their positions in the dispute. This may include documents such as contracts, deeds, maps, photographs, and physical evidence such as soil samples or building materials.
• Interviewing witnesses: The parties may need to interview witnesses who know about the dispute or can provide professional testimony on relevant issues. These may include neighbors, former property owners, land surveyors, or other professionals.
• Preparing legal arguments: The parties must develop legal arguments to support their positions in the dispute. This may involve researching relevant case law, statutes, and regulations and developing a theory of the case that explains why the arbitrator should rule in their favor.
• Exchanging information: The parties may be required to exchange certain information and documents before the hearing, a process known as discovery. This allows each party to see the evidence the other side plans to present and prepare accordingly.

Preparing for an arbitration hearing can be time-consuming, and parties must work closely with their land use attorneys to ensure they are fully prepared to present their case to the arbitrator.

This preparation includes gathering and organizing evidence, preparing witness testimonies, and formulating legal arguments to effectively communicate their position and persuade the arbitrator.

Attending the Hearing

The arbitration hearing typically occurs in a conference room or other neutral location rather than a courtroom. Depending on the complexity of the dispute and the amount of evidence presented, the duration may range from several hours to several days.

At the hearing, each party will have the opportunity to present their case to the arbitrator. This may involve opening and closing statements, presenting evidence, and questioning witnesses. The arbitrator may also ask questions of the parties and their witnesses to clarify points or to obtain additional information.

Throughout the hearing, the arbitrator will consider each side’s evidence and arguments, make notes, and ask questions as necessary. The arbitrator may also request additional information or clarification from the parties during the hearing.

Receiving the Decision

After the arbitration hearing, the arbitrator will take some time to review the evidence and arguments presented and reach a decision. The amount of time this takes will depend on the complexity of the case and the amount of evidence involved, but it typically spans weeks rather than months.

Once the arbitrator has decided, they will issue a written award that sets forth their findings and conclusions.

The award will typically include:

• A summary of the case.
• A discussion of the relevant legal principles.
• A ruling on the issues in dispute.

Depending on the nature of the dispute and the terms of the arbitration agreement, the arbitrator’s award may include an order for one party to pay damages to the other party or other forms of relief, such as an order for specific performance or an injunction.

The arbitrator’s decision is binding on the parties, meaning they are legally obligated to comply with the terms of the award. If one party fails to comply with the award, the other party can seek enforcement through the court system.

The grounds for appealing an arbitrator’s decision are very limited. In most cases, one can only challenge an arbitration award if there is evidence of fraud, corruption, or other misconduct by the arbitrator or if the arbitrator exceeded their authority under the terms of the arbitration agreement. Additionally, one might appeal if the arbitrator erred in applying the law or made an entirely irrational decision.

Potential Drawbacks of Arbitration in Land Use Disputes

While arbitration can effectively resolve land use disputes, consider some potential drawbacks:

• Limited appeals: As mentioned earlier, the grounds for appealing an arbitrator’s decision are limited. This means that if one party dislikes the outcome, they may have limited options for challenging the decision.
• Lack of formal rules: While arbitration allows for more flexibility than going to court, it also means that there may be fewer formal rules and procedures in place. This can make the process less predictable and more uncertain for the parties involved.
• Cost: While arbitration is generally less expensive than going to court, it can still cost money, especially if the parties choose a high-profile arbitrator or the arbitration hearing lasts several days.
• Lack of precedent: Because arbitration decisions are not a matter of public record, they do not set legal precedents like court decisions. This means that even if an arbitrator makes a favorable decision for one party, it may not have a broader impact on similar disputes.

The Role of Land Use Lawyers in Arbitration

While arbitration offers a more informal and flexible process than court proceedings, for parties in a land use dispute to have legal representation.

A land use attorney can explain your legal rights and obligations, gather evidence to support your case, and present arguments to the arbitrator clearly and persuasively.

In addition, a land use lawyer can help the parties navigate the arbitration process and protect their interests. This assistance may involve negotiating the terms of the arbitration agreement, selecting an appropriate arbitrator, advising on the potential outcomes of the arbitration, and preparing the necessary documentation and evidence for the hearing.

Contact a Land Use Lawyer Today

Land use disputes can be complicated and emotionally charged. Still, arbitration can provide a way for parties to resolve their differences faster, more flexible, and less expensive than going to court.

By submitting their dispute to a neutral third party for a binding decision, the parties can have their voices heard and reach a resolution considering their unique circumstances and needs.

However, arbitration is not a one-size-fits-all solution for parties to carefully consider whether it is the right choice for their particular dispute. This may involve weighing the potential advantages and drawbacks of arbitration and seeking the advice of an experienced land use attorney.

If you are involved in a land use dispute and are considering arbitration as a possible solution, seek the guidance of a qualified attorney at Dickson Frohlich Phillips Burgess. An attorney can aid your understanding of your legal rights and options, negotiate the terms of the arbitration agreement, and represent your interests throughout the arbitration process.

With the right legal support, you can work towards a resolution that protects your interests and helps you move forward with your land use goals.