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Una versión más actualizada de este artículo está disponible como parte del capítulo 1 del libro Perspectivas urbanas: Temas críticos en políticas de suelo de América Latina.
En el marco de una reestructuración económica, la privatización y la globalización, el problema de las tierras urbanas y los conflictos sobre su uso representan una prioridad fundamental para El Salvador. Son muchos los factores que contribuyen al estado crítico de la administración de la tierra en el país:
El Instituto Lincoln trabaja junto con el Programa Salvadoreño de Investigación y Medio Ambiente (PRISMA) para lograr la presentación de una serie de seminarios para funcionarios de alto nivel en el gobierno nacional y municipal, así como agentes de la industria de desarrollo privada y representantes de organizaciones no gubernamentales. Los dos grupos patrocinaron un curso sobre el funcionamiento de los mercados de tierra urbanos durante la primavera pasada, y durante este otoño proseguirán con un curso sobre “Los instrumentos de regulación para el uso de las tierras urbanas”.
Este programa se enfoca en la necesidad urgente de crear instrumentos económicos y de regulación para promover la administración estratégica de las tierras urbanas, para contribuir con el proceso de democratización en curso y apoyar el desarrollo sustentable. El curso es particularmente oportuno porque El Salvador está en el proceso de establecer un ministerio del ambiente y redactar una legislación para encargarse de problemas de organización territorial.
Mario Lugo Ucles es investigador afiliado de PRISMA (Programa Salvadoreño de Investigación y Medio Ambiente) en El Salvador.
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Within the framework of economic restructuring, privatization and globalization, the issue of urban land and conflicts over its use is a top priority for El Salvador. Numerous factors contribute to the critical status of land management in the country:
The Lincoln Institute is working with the Salvadoran Program for Development and Environmental Research (PRISMA) to present a series of seminars for high-level municipal and national government officials, private development agents and representatives of non-governmental organizations. Last spring the two groups cosponsored a course on the functioning of the urban land markets and this fall will follow up with a course on “Regulatory Instruments for the Use of Urban Land.”
This program addresses the urgent need to create economic and regulatory instruments to promote strategic urban land management, contribute to the ongoing process of democratization and support sustainable development. The course is particularly timely because El Salvador is in the process of establishing a Ministry of the Environment and drafting legislation to address issues of territorial organization.
Mario Lungo Ucles is a researcher affiliated with PRISMA, the Salvadoran Program for Development and Environmental Research, in San Salvador.
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As sprawling, low-density development patterns consume thousands of acres of natural habitat, the force of urban growth is increasingly bumping up against the need to protect biodiversity. The fastest growing states and regions in the South and West are also those with high numbers of endemic species, and species endangered or threatened with extinction.
One tool that has emerged for reconciling species-development conflicts is the habitat conservation plan (HCP). Authorized under Section 10 of the federal Endangered Species Act (ESA), HCPs allow for limited “take” of listed species in exchange for certain measures to protect and restore habitat. These plans vary in their geographical scope from a single parcel or landowner to large areas involving many landowners and multiple governmental jurisdictions.
The HCP mechanism grew out of a controversy over development plans on San Bruno Mountain in the Bay Area of California that threatened several species of butterflies, including the federally listed mission blue. A collaborative planning process generated a biological study of the butterflies’ habitat needs and a conservation plan that allowed some development in designated nodes while setting aside about 87 percent of the butterfly habitat as permanent open space. The HCP also included a funding component, procedures for carefully monitoring development and minimizing its impact, and a long-term program of habitat restoration.
The positive experience of San Bruno led to a 1982 amendment to the ESA specifically allowing HCPs. Since then, their use has grown slowly but steadily. About 40 plans have been approved by the U.S. Fish and Wildlife Service, and another 150 are in progress, most of them initiated in the last five years.
The Typical HCP Process
Regional habitat conservation plans usually follow a similar process. They start with the formation of a steering committee with representation from the environmental community, landowners and developers, local governments, and state and federal resource management agencies, among others. Frequently, consultants are hired to prepare background biological and land use studies as well as the actual plan and accompanying environmental documentation. The content of these plans can vary substantially depending on the species and potential threats at issue, but most create habitat preserves through fee-simple acquisition or land dedication. Plans also include provisions for habitat management, ecological restoration, and research and monitoring. Much of the deliberation in preparing a plan centers on how much habitat must be preserved, the boundaries and configuration of proposed preserves, how funds will be generated to finance the plan, and which entities or organizations will have management responsibility for the protected habitat once secured.
While the HCP process has encountered problems, the experience to date suggests it can be a viable and constructive mechanism for resolving species-development conflicts. For the development community, the stick of ESA brings them to the table and keeps them there, realizing that without a strong plan any development might be jeopardized. For the environmental community, the plan represents a way to generate funds to acquire habitat that would be difficult to raise otherwise. The HCP process, thus, provides a useful pressure valve under the ESA–a tool to provide flexibility in what is frequently criticized as being an overly rigid and inflexible law.
Successes and Concerns
From the perspective of preserving biodiversity, the plans, even those not officially adopted or approved, have lead to the acquisition of important habitat. The Coachella Valley HCP in California sets aside three preserves totaling nearly 17,000 acres of desert habitat to protect the fringe-toed lizard. Other plans preserve biologically rich hardwood hammocks in the Florida Keys, desert tortoise habitat in Nevada, and forested habitat for the northern spotted owl in California. The ambitious Balcones Canyonlands Conservation Plan in Austin, Texas, would protect more than 75,000 acres of land, including a newly created 46,000 acre national wildlife refuge. Though this plan has encountered political and financial obstacles, more than 20,000 acres have already been secured.
One of the key concerns about HCPs is the effectiveness of their conservation strategies, especially whether the amount of habitat set aside is sufficient to ensure the survival of threatened species. The long-term ecological viability of preserves is another problem, because many will become mere “postage stamps” surrounded by development. These concerns suggest that more habitat should be protected, that preserves should be configured in larger, regional blocks, and that plans should seek to protect multiple rather than single species within broad ecosystem functions. The Balcones example suggests a positive direction for future HCPs in its emphasis on a regional, multi-species approach, including endangered migratory songbirds, cave-adapted invertebrates and plant species.
Another criticism of HCPs is that they have failed to change the ways we allow development to occur because they generally accept the current pattern of low-density sprawl and wasteful land consumption. In addition, it often takes four or five years before a plan can be prepared and approved. Even given that seemingly long timeframe, plans are often based on limited biological knowledge.
One of the most difficult issues in the HCP process is funding. Habitat acquisition in fast-urbanizing areas is extremely expensive. The Coachella Valley plan cost $25 million; the Balcones plan could cost more than $200 million. Most plans are funded through a combination of federal, state and local funds, with some private funding. At the local level the plans usually impose a mitigation fee assessed on new development in habitat areas ranging from a few hundred dollars per acre to the $1950 per acre in the case of the Stephens’ kangaroo rat HCP in Southern California.
Ideas for future funding sources include the creation of habitat acquisition revolving funds (similar to state revolving funds for financing local sewage treatment plant construction) and the use of special taxing districts designed to capture land value increases of property located adjacent to habitat preserves. Greater reliance needs to be placed on less expensive alternatives than fee-simple acquisition, such as transfers of development rights, tradable conservation credits, mandatory clustering and other development controls.
The Future of HCPs
The considerable progress in habitat conservation made through this mechanism to balance development and conservation could be halted if current proposals in Congress to substantially weaken ESA prevail. Clearly it is the “teeth” of ESA that gets opposing parties to the bargaining table. Without a strong ESA, there will be little reason to expect this form of collaborative habitat conservation to occur.
The experience to date suggests that flexibility does exist under current law, and that the problems encountered with HCPs do require some fine tuning. The challenge is to make the HCP process an even more effective tool for conserving biodiversity. At the same time, if habitat conservation is incorporated into local comprehensive plans, then new development can be steered away from important habitat areas and public investment decisions can minimize potential species-development conflicts.
Timothy Beatley is chair of the Department of Urban and Environmental Planning in the School of Architecture at the University of Virginia and the author of Habitat Conservation Planning: Endangered Species and Urban Growth, University of Texas Press, 1994. He spoke at the Institute’s May 1995 meeting of the Land Conservation in New England Study Group.
Additional information in printed newletter:
Map: Balcones Canyonlands, Austin, Texas. Source: Adapted from maps by Butler/EH&A Team, City of Austin Environmental and Conservation Services, Balcones Canyonlands Conservation Plan, Preapplication Draft, Austin, 1992
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Lawrence Susskind is the Ford Professor of Urban and Environmental Planning at Massachusetts Institute of Technology and president of the Consensus Building Institute, in Cambridge, Massachusetts. He graduated from Columbia University and received his Masters of City Planning and his Ph.D. in Urban Planning from MIT. As current head of the Environmental Policy Group in MIT’s School of Architecture and Planning, he teaches courses on international environmental treaty negotiation, public sector dispute resolution and environmental planning. He also holds a joint appointment at Harvard University as visiting professor of Law and director of the Public Disputes Program at the interuniversity Program on Negotiation, which he helped to found. Susskind has published many books and reports and held many visiting appointments and guest lectureships. He is a faculty associate of the Lincoln Institute.
Land Lines: How did you become interested in land use mediation?
Lawrence Susskind: Land use planners are supposed to ensure that the public is involved in all growth management decisions. Yet, most efforts to ensure such public participation lead to protracted political battles. Within the planning profession it is not clear how competing conceptions of appropriate land uses ought to be reconciled. Since the early 1970s I have been trying to introduce the concept of mediation as well as other conflict management tools into the lexicon of professional planners. In my view, in the absence of consensus building strategies of some kind, most communities are doomed to use resources inefficiently, unfairly and unwisely. I got interested in land use mediation as a way of helping the planning profession do a better job.
LL: What types of land use disputes are most difficult to resolve?
LS: Land use disputes that revolve around values or identity are the most difficult to resolve. When values (as opposed to economic interests) are at stake, people often feel that their identity is threatened and in such situations they are rarely open to considering the views of others. For example, proposed changes in land use that would eliminate agriculture as a way of life are not likely to be accepted, even if financial compensation is offered to the landowners involved.
LL: When did you start collaborating with the Lincoln Institute?
LS: My ties to the Lincoln Institute go back a long time. When Arlo Woolery was executive director in the late 1970s, we worked together on a multiyear effort to analyze the impacts of the Property Tax Limitation Law (Proposition 2 1/2) in Massachusetts and on the state’s Growth Policy Development Act. Two decades later, in 1997, I began working with Rosalind Greenstein and later Armando Carbonell, co-chairs of the Institute’s Department of Planning and Development, on a series of research projects that evolved into the training programs on land use mediation that we (LILP and CBI) currently offer together.
LL: Explain a little more about CBI.
LS: The Consensus Building Institute is a not-for-profit organization founded in 1993 to provide consensus building services to clients involved in complex disputes. Building on the “mutual gains” approach to negotiation developed at the Program on Negotiation at Harvard Law School, CBI offers conflict management assistance, negotiation training, dispute system design services and evaluative research to public agencies, corporate clients and nongovernmental agencies on five continents.
Our staff now includes a dozen full-time professionals, mostly based in Cambridge, and a network of more than 30 experienced affiliates around the world. We have become known as expert public and environmental dispute mediators and have helped to resolve complex disputes related to the siting of controversial facilities, the setting of public health and safety standards, the formulation and implementation of development plans and projects, and conflicts among racial and ethnic groups.
LL: When did the joint Lincoln and CBI training programs begin?
LS: After several years of careful analysis of land use mediation efforts throughout the United States, CBI developed a curriculum with Lincoln Institute for public officials and planners, and that course has been offered since 1999 at a number of locations. During the first few years we offered only a basic course designed to familiarize participants with assisted negotiation as a method to resolve land use disputes, and then we expanded our offerings to include more detailed skill building for experienced mediators and practitioners. Today we offer a full range of courses at multiple locations around the country.
LL: Who are the primary participants in these introductory and advanced courses?
LS: We are trying to reach three different audiences. First, we have identified and invited local elected and appointed officials who preside over land development disputes and administer land use regulatory systems at the local, regional and state levels. They need to know that there are techniques they can use to help resolve land use disputes before they escalate.
Second, we are trying to attract real estate developers and their attorneys so they know how to participate effectively in dispute resolution efforts when they are offered or suggested by public officials. Third, we have a special interest in attracting professionals of all kinds who want to learn how to be better facilitators, particularly of multiparty land use dialogues that involve complex technical dilemmas.
LL: What are the key goals and lessons of these programs?
LS: The introductory course offers a quick overview of the reasons that land use disputes seem to escalate so quickly and often end up in court. We then introduce the basic principles and tools of dispute resolution and show how they can head off such escalation. They are presented in a very interactive way using gaming and simulations. Participants are given a number of hands-on opportunities to apply what they are learning in hypothetical situations and to bring their own cases before the group. We spend some time talking about techniques for overcoming resistance to the use of mediation and other consensus building strategies.
The advanced course is aimed at experienced mediators or planners and lawyers who think they might want to become mediators. It assumes that the participants have mastered the material presented in the introductory course and moves to a set of dilemmas at the next level, including methods of handling science-intensive disputes through the use of joint fact finding. We also review key theoretical debates, such as managing unequal power relationships in a mediation context.
LL: How do you incorporate both theory and practice into the curriculum?
LS: We expect many of the participants to bring their own stories about land use disputes in which they have been intimately involved. We model in real time how the theory we are teaching can be applied in their cases. We also try to ground all of our theoretical presentations in detailed case accounts of actual practice. Finally, as mentioned above, we use role playing simulations. Students can’t just sit back and take notes. They have to wrestle with the application of the ideas we are presenting.
LL: What other projects have you undertaken with the Institute?
LS: About a year ago, in May 2004, I joined Institute President Jim Brown at a Lincoln-sponsored seminar in Cuba on the problems of restoring and redeveloping Havana Harbor. Energy production and inadequate attention to pollution control have spoiled one of the most beautiful harbors in this hemisphere. Some of the many different committees and groups concerned with economic development, environmental cleanup, restoration of the harbor ecology, historic preservation of Old Havana, and enhanced tourism are seeking advice on strategies for balancing these (sometimes) competing objectives.
CBI is beginning to develop a new joint course with the Lincoln Institute and some of its partners involved in local economic development efforts around the country. We believe conflict resolution tools and negotiation skills can be of great use in neighborhood development disputes, not just growth management conflicts in the suburbs. With Roz Greenstein CBI is creating a new set of training programs for community-based organizations that we plan to offer for the first time next summer.
Another new initiative is a collaborative Web site that highlights recent research by the Lincoln Institute and CBI, as well as timely news articles, background material on consensus building, and links to related programs and publications. One section of the site will provide an interactive platform that will permit hundreds of alumni of our joint courses to remain in touch with each other and share their mediation experiences. This “virtual learning community” will be a valuable resource for public- and private-sector stakeholders involved in land use disputes (even if they haven’t taken the course).
LL: What is the outlook for future joint programs?
LS: I believe our ongoing CBI–Lincoln Institute partnership holds incredible promise. We have conducted an Institute-sponsored study on the use of consensus building to resolve land reform disputes in Latin America and hope to expand on that work, as well as to address land issues facing China and the newly independent states of Eastern Europe. The Institute is already involved in research and training programs in these regions, and land use disputes are at the core of many of the challenges facing national and local policy makers.
The Lincoln Institute is an ideal partner for CBI. We both care about applied research, theory building and sharing new knowledge through educational programs of all kinds. We both measure our success in terms of real improvements on the ground, and we share interests in both domestic and international arenas.
