Negotiating with Stakeholders

Municipal officials and others can negotiate, whether formally or informally, to come to agreements that address neglected properties, particularly before resorting to litigation. Negotiation is an “all-purpose strategy,” useful for simple and far-reaching agreements. Various people and entities can have different or shared interests, or “stakes,” in particular issues. In either case, effective negotiation strategies and creative plans can help parties look for mutual gains, or “win-win” agreements, wherever possible. ¹

Before using the legal system, local governments can consider whether the right conversation, motivation, or use of a resource may take care of an issue. For instance, a property owner may want to get rid of his or her neglected property but not have time to look into it, while a developer may be interested in redeveloping the property; facilitating a simple conversation can get the ball rolling.

This approach could be as simple as directing a public works employee to mow a property’s grass and bill the landowner, to something as ambitious as negotiating a deal with a landlord to acquire a problem property and develop it into affordable housing. Unlike negotiations among business associates, local governments can leverage and use the law if necessary, and ultimately have the police power on their side.

No Prerequisites

Advantages

• Limits unnecessary use of resources
• Flexible, non-regulatory solution
• Can encourage or lead to repairs or demolitions
• Can help local governments recover costs
• Can put neglected properties back into productive use
• Can involve neighbors in a productive and positive way
• Can be speedier than using legal tools

Disadvantages

• Requires action on a case-by-case basis
• Can take time and energy with few guarantees and limited guidance
• Although negotiation can involve exerting some pressure and leveraging interests, poorly conducted negotiations could turn into harassment, discrimination, and illegal conduct, none of which are encouraged by this tool

Special Procedures

In more formal contexts, such as negotiating a settlement to pending or possible litigation, or working out a contract over a development deal, rules governing negotiations, settlements, and contracts will apply. ² In informal contexts, negotiation generally involves: (1) bringing parties with an interest together, (2) communicating to identify shared and conflicting interests, and (3) inventing options for mutual gain. ³

The City of Point Pleasant directs public works employees to mow properties with overgrown lawns when they are already in a particular area to do other work. The City then sends a bill to the property owners for the costs. Many property owners, especially those living out-of-town, are fine with this informal arrangement. All parties are glad the grass is maintained, and the City recovers the cost of abating the nuisance without having to use more formal procedures.

Tips for Successful Negotiations: ⁵

1. Identify interests, asking people, “why?” or “why not?”
   • Interests can be unpredictable and diverse.
   • Some examples include security, money, avoiding embarrassment, control over one’s life, family loyalty, and group welfare.
2. Avoid assumptions and premature judgments.
3. Refer to independent standards, such as a community tradition or ordinance. The use of common values or community norms can make agreements more successful by reducing perceptions of unfairness and making people less likely to back out.
   • Examples of standards that can be referred to in negotiations include laws, moral values, neighborhood traditions, and costs to the city and taxpayers.
4. Consider emphasizing civic duties and the interconnectedness of problems to residents of small communities.
5. If a solution is not obvious, try brainstorming alone or together or advancing alternative options.
6. Offer solutions instead of making threats.

Community Highlight

Tom Whittier, City Attorney for the City of Spencer, which has a population of about 3,000, describes the creative approach that he and Mayor Terry Williams take to neglected properties, using legal proceedings as “the last resort.” After identifying problem properties and prioritizing them, the mayor contacts the owners himself and tries to work out a deal based on the particular problem. This ranges from simply encouraging the owner to make repairs to trying to convince the owner that the building poses substantial liability and title should be transferred to the City. “This has been,” Mr. Whittier says, “to date, our most successful method of taking care of these buildings. They get donated to the city for a small amount, then the city demolishes about ten buildings a year.”

But the City does not eat the costs; rather, the mayor tries to sell the acquired properties. “He talks to each of the neighbors and asks, ‘If they tear down this building, will you buy this lot?’ He acquaints himself with the neighboring houses and tries to work out deals, maybe selling half to one adjacent property owner and half to another, so the City can recoup a substantial amount of its demolition costs. Sometimes people need a spot for a garage or parking—we have narrow streets, and people like to buy space for parking, which we like because it gets cars off the street. The mayor uses what amounts to horse-trading, where the city acquires the property, demolishes the building, and sells the property to the neighbors for a substantial percentage of the demolition cost.”

“If you can find someone to deal with, there are a lot of tools you can use,” Mr. Whittier says. “You get involved in many aspects of different things and you try to minimize the conflict and work it out without having to use the legal system. When you use the legal system, it’s slower and more conflictual.” For instance, the mayor uses tools like partition, demolition liens, and tax sales indirectly, as bargaining chips, before fully pursuing the actual legal proceedings. “One tool is just to wake the owners up so they will take some action,” Mr. Whittier explains. “The threat of partition is a more useful tool than the actual partition. It is a tool that you use to get people to solve their own problems,” he says. For demolition liens, for example, Spencer officials will use their ability to impose a lien to encourage neglectful owners to sell to someone with the capacity to make repairs, bringing all of the parties together and emphasizing the owner’s civic duty not to continue to burden the community.

Spencer also tries to negotiate to use resources efficiently, such as when it arranged to share a certified code official with the City of Parkersburg. “We didn’t have anyone who was willing to get certified in Spencer. Finally, we worked something out with Parkersburg to use their certified code official. What we use is an informal inspection by the city, then if all other tools fail, we call in the certified inspector from Parkersburg to begin legal proceedings.” Similarly, while properties with hazardous materials pose a challenge because there is no local HazMat company, the City of Spencer negotiates with an out-of-town company to inspect or address multiple properties at a time for a discounted rate.

“Small cities need to minimize their costs,” Mr. Whittier says. “The approach of our small city is that legal proceedings are the last resort. You try to use all the practical tools and the like before you resort to them. Then, when you start the legal proceedings, you try to use that as an impetus to get the resolution. We’ve been lucky. We’ve been successful in getting most cases resolved before we actually went through a full condemnation hearing. We’ve probably had two condemnation hearings in the course of taking down between 30 and 40 dilapidated buildings—we have an informal goal of doing 10 a year.”

1. Roger Fisher & William Ury, Getting to Yes: Negotiating Agreement Without Giving In xviii (1991).
2. See, e.g., S.D. W. Va. L.R. Civ. P. 16.7(a) (“Unless otherwise ordered by the judicial officer to whom the case is assigned for trial, counsel and unrepresented parties shall meet no later than 21 days before the date of the final pretrial conference to conduct settlement negotiations.”); Fed. R. Civ. P. 16(a) (pretrial conferences may be held to facilitate settlement); Stark Elec., Inc. v. Huntington Hous. Auth., 180 W. Va. 140, 142, 375 S.E.2d 772, 774 (1988) (discussing law of contract formation); Snyder v. Hicks, 170 W. Va. 281, 283, 294 S.E.2d 83, 85 (1982) (dismissal of cases for failure to prosecute may depend on whether plaintiff made efforts to settle).
3. See generally Fisher & Ury, supra note 1.
4. Id. at 4.
5. See id.
6. Id. at 56.
7. Laura Smolier, Stop Bargaining and Start Negotiating, Inc.com (Mar. 13, 2013), http://www.inc.com/laura-smoliar/the-difference-between-bargaining-and-negotiating.html.