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Posted by on Jan 4, 2017 in Community, Government, Land Use, Local Government, Other, Zoning | 0 comments

by Neil Erwin, attorney, Neil Erwin Law, LLC

Our team at Neil Erwin Law has had the opportunity over the past several months to present “Who Are You Calling Arbitrary?  A Guide to Help Protect your Land Use Decisions without inviting Lawsuits” to planning, local government law, and municipal leadership groups as recommended best practices to follow based on court decisions and experience.

In summary, these recommended best practices  urge that to help avoid the controversy and expense of litigation, land use decisions be made within a framework of a virtual box whose 4 quadrants are:

  1. Be Clear
  2. Listen
  3. Be Consistent
  4. Give Your Reasons for Decision

Caroline Mladenka blogged on Part 1, Be Clear.  This blog address Part 2, Listen.

The recommendation:  Listen and give citizens their right to be heard, but follow your laws and procedures.

Why is this important?  Because if you do not provide a reasonable opportunity for the land use applicant and citizens to be heard, you invite mistrust and a lawsuit for due process violations.

Procedural due process under the Fifth and Fourteenth  Amendments to the U. S. Constitution requires notice of a hearing and the reasonable opportunity to be heard prior to governmental action which “deprives individuals of ‘liberty’ or ‘property’ interests”.  Mathews v. Eldridge, 424 U.S. 319, 332, 96 St. Ct. 893, 901 (1976).  Land use regulation, affecting property rights, is such governmental action.

Louisiana Law

Zoning and subdivision cases, given their required public hearings (La. R.S. 33:4724 and 33:4725), inherently and properly involve appointed board members and elected officials listening to the applicant and citizens both for and against an application.

The right to public comment is guaranteed by the Louisiana Public Meetings Law (La. R.S. 42:11 et seq.)

It should never be forgotten whenever a public meeting is held by a public body that a provision of the Louisiana Public Meetings Law (La. R.S. 42:14.D) requires a public comment period by to action on an agenda item upon which a vote is to be taken.  This opportunity for public comment should be clearly stated on the meeting agenda and announced by the meeting chair before each vote.

However, the right to public comment is balanced by the right of the public body to set ground rules, specifically, “reasonable rules and restrictions regarding such comment period.”  (La. R.S. 42:14.D)

Advice:  Adopt Rules for Public Hearings

It is recommended that each planning and zoning commission and local legislative body adopt rules and regulations for public hearings and follow them uniformly.

These ground rules can include:

  • Reasonable time limits for comments (such as three to five minutes per speaker, or a longer period for primary spokespersons in favor and in opposition).
  • An announced order of presentation by speakers, typically hearing from the applicant and those in favor first, then hearing from opponents, and lastly allowing a short rebuttal from the applicant.
  • A spoken reminder by the chair of the meeting that all questions and comments should be addressed to the board or elected body, not members of the audience or  through argument at the podium with the spokesperson for the other side.

After adoption of ground rules, the rules should be written down in a standard “script” to be read by the chair at the start of each meeting.  Such a script can help the chair avoid losing control of the hearing, as well as showing a good faith and neutral effort to provide a right to be heard by all interested persons.

Remember, public opinion is an element in land use decision-making but not the overriding one.

Overreliance on public input to the point of ignoring a local governing body’s own ordinances and procedures can and has led to the mocking reversal by a reviewing court.  WRW Properties v. City of Shreveport, 47,657 (La. App. 2 Cir. 1/16/13), 112 So.3d 279.

So listen and give everyone his or her right to be heard, but follow both ground rules for the meeting and local, state, and constitutional mandates.

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Multi-Family Rezoning under Federal Duress despite Comprehensive Plan Defense?

Multi-Family Rezoning under Federal Duress despite Comprehensive Plan Defense?

Posted by on Oct 29, 2015 in Government, Land Use, Zoning | 0 comments


The impact on land use law nationally still is being assessed from the decision June 25, 2015, by the U. S. Supreme Court in Texas Department of Housing & Community Affairs v. The Inclusive Communities Project, Inc., _____ U.S._____ (No. 13-1371), 135 S.Ct. 2507, 2015 WL 2473449.  Will it mean multi-family rezoning under federal duress despite a defense that a community’s comprehensive plan calls for continued single-family zoning of a site in dispute?

House in new urbanism development of Prospect project in Longmont, Colorado.

House in new urbanism development of Prospect project in Longmont, Colorado.

The Court, in a 5-4 decision, upheld the application of disparate impact under the Fair Housing Act.  And while the Court also recognized significant limitations on the application of this test, the limits clearly are subject to be tested in future lawsuits involving municipal rezoning decisions.


In a disparate impact claim brought under the Fair Housing Act, a plaintiff may establish liability, without proof of intentional discrimination, if an identified business practice has a disproportionate effect on certain groups of individuals and if the practice is not grounded in sound business considerations.  This is the first time the U.S. Supreme Court has recognized such claims.

Small and new modern apartment building

Importantly, the Court found as a limitation on such claims that a plaintiff cannot prevail in a disparate impact claim over an offered defense of legitimate business justification if the plaintiff cannot prove that there is an available and feasible alternative practice that has less disparate impact, but meets the business justification.

New apartment building in suburban area

One area where this type of lawsuit will hit home will be when a plaintiff developer is denied rezoning for multi-family use of subsidized housing of a site zoned for single-family residential use, with the community’s comprehensive plan also showing low-density residential use for the site under the plan’s future land use map.


The obvious defense will be raised that the community’s comprehensive plan, adopted in a non-discriminatory fashion, meets the defense of “business justification” for the denial of rezoning. Will the defense be successful?  Stay tuned.  The alternative could be the type of damages imposed on the City of Sunnyvale, Texas.

House in new urbanism development of Prospect project in Longmont, Colorado.



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If we see cities as habitat for humans, what would be our favorite lair?

If we see cities as habitat for humans, what would be our favorite lair?

Posted by on Jun 11, 2015 in Urban |

“We know more about the habitats of Snow Leopards than we do about what works best as habitats for human beings.”
From the Danish documentary, “The Human Scale,” released in 2013.

Anyone interested in city planning and urban development will be both entertained and informed by the 1 hour 15 minute documentary, “The Human Scale,” available from Netflix.

The film is about the studies of Danish architect and city planner Jan Gehl as to what urban habitat works best for humans as a species, especially the best design for public squares to make us want to walk and sit in them.  The study of how to make cities more livable will only grow in importance, since already half of the human population lives in urban areas. By 2050, this will increase to 80%.

A particularly interesting insight from the film comes from the rebuilding of Christchurch, New Zealand, following earthquake damage to the city’s core district.  It was found that 6 stories is the maximum optimal height for a condo/apartment building.  Higher than that and the cost of construction must go way up because of the need for a heftier foundation (meaning much higher sales and rental prices).  Plus, people who live near the top of very tall buildings tend to travel outside less because it just is more trouble to get down and outside of the building.

The camera work is mesmerizing of life on the ground in a variety of cities, including:  New York, Melbourne, Copenhagen, and Chongqing, China.  Sure to spark conversation, this is one to put on your “watch” list soon.

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Want to better understand cities and how they actually work?  A few tips on some practical sources.

Want to better understand cities and how they actually work?  A few tips on some practical sources.

Posted by on May 28, 2015 in Urban |

1. Understand the key role of urban politics.

 Politics in cities, and by that I mean attention of elected officials to the will of a significant number of citizens, often can provide the spark for planning.  Building space in a city isn’t like building in space – planning rarely takes place in a pristine vacuum.

The book to read:  The Power Broker:  Robert Moses and the Fall of New York, 1974.  Available in paperback.  The transformation of an idealist into a get-it-done human bulldozer, and with it, the transformation of New York City neighborhoods and not always for the good, is a read one can’t put down.  Don’t let the number of pages put you off – the wisdom here is golden.

2. Try adding some reading in urban geography to urban planning.

 A generalist’s understanding of the distinction is that urban geography tells you how a city got to be the way that it is and how best to keep the existing civic infrastructure “gears” moving smoothly along with those who turn them.  City planning seeks to better arrange the pieces and spaces of the city to provide a more favorable board on which the players can build their lives.

A very good book to readUrban Geography, A Global Perspective.  Third Edition, 2009.  Available in paperback.

3. Keep up with the latest zoning and land use legal decisions – the courts literally “rule” in this area.

A must to readLaw of the Land blog on land use law and zoning.

4. Try a contrarian urban viewpoint from that heard from the typical Northeast & Northwest coasts.

 CityLab has its place, but sometimes appears slightly monolithic in its urban hipster viewpoint.  Believe me, this is not how the leaders of many cities think, perhaps especially in the growing Sunbelt.

Try instead some different knowledgeable observations from Southern California – in, but not necessarily of, Los Angeles.  Reading, especially anything written by Joel Kotkin, whose range extends to the usually overlooked Gulf Coast, is like turning the corner and seeing a completely new viewpoint that stands out from the often uniform (while still worthy of consideration) opinions of the planning community “establishment”.  There is nothing wrong with idealism in planning, but idealism seldom gets anything built.

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Looks can be Deceiving for Wealth and Poverty in Communities – Measure instead by Creation of Personal Income

Looks can be Deceiving for Wealth and Poverty in Communities – Measure instead by Creation of Personal Income

Posted by on Jan 14, 2013 in Community |

All of us too often see what we want to see, or make assumptions on a community based on what is closest to our eyes as we drive down a shortcut to our destinations. But the shack along the road may mask the mansion down the lane.

What we need to see – and a useful measuring stick for elected officials – is how a community fares in its creation of per capita personal income.* 

Let’s start with Louisiana.

By some measures, Louisiana one of the “Poorest States”

Louisiana often is called one of America’s “poorest states” based on its ranking of 3rd highest level of poverty in the U.S. (20.4% of the state’s population, 2011 Census Bureau American Community Survey, with Mississippi #1 at 22.6%).

This picture would appear to be matched by Louisiana’s position as having America’s 7th lowest median household income of $41,734 v. #1 Maryland’s highest median household income of $70,004.

This explains, on the surface, why some in the Pelican State bemoan the lack of high end retail and other day to day amenities seen in such “wealthy” states as Connecticut, Massachusetts, and New York.  But looks can be deceiving.

Louisiana has made Leaps in Personal Income

An underreported figure is the growth of Louisiana’s per capita personal income.  As recently as 2000, Louisiana ranked 45th among the states by personal income.  By 2010 and 2011 (federal Bureau of Economic Analysis, March, 2012) Louisiana ranked 28th.

In the 12 states of the Southeastern U.S., Louisiana’s per-person personal income of $38,578 in 2011 ranked third, behind only Virginia’s $45,920 and Florida’s $39,563. (Associated Press, March 28, 2012, from federal Bureau of Economic Analysis.)

Louisiana’s growth in personal income recently has been fueled by earnings jumps in oil and gas employment, manufacturing, health care and social assistance, plus growth in professional-science-technical services.

Why such different pictures?

 Income Inequality Makes the Difference in the Picture

The answer is income inequality, with obvious implications – both good and bad – for communities around the state.  As well as the evolving definition of “community” itself.

While personal income as a whole in Louisiana has taken great leaps over the past decade, for those in the bottom 5th income has stagnated, or possibly even worsened.  On the other hand, for the wealthiest, income has increased, mirroring a national trend.  (Or, putting it in a less class-conscious way, the comparison is between the less successful and more successful.)

This accounts for Louisiana’s current ranking as having the nation’s 6th highest level of income inequality, looking at the gap between the top earners and bottom earners.  (New Orleans “Times-Picayune,” November 15, 2012, highlighting a report from the Center on Budget and Policy Priorities and the Economic Policy Institute in Washington, D.C.) 

In Louisiana, the wealthiest 5 percent of households have an average income more than 14 times the size of the bottom 20 percent, not a large difference between the national gap between these two groups of 13 times, but more than the “most equal state,” Iowa, where the highest earners make 5.6 times as much as those at the bottom.

Whose “Community” is doing Well, and Not So Well?

What defines “community” now?  In the future? 

Among Louisiana’s most successful, times have been dramatically improving over the past decade.  Among those who have been struggling, the struggle hasn’t gotten much easier.  Perhaps explaining why Louisiana was ranked #10 in federal aid to state and local governments per capita in 2009, not counting military spending (U. S. Census Bureau, August, 2010.)

So, before forming an opinion about how “rich” or “poor” any particular community might be on first glance when driving through, here are figures for some Louisiana metro areas. 

Among Top 100 U.S. metropolitan areas, ranked by per capita personal income, 2010**:

New Orleans             $42,485                     #46 out of 372 metro areas. 

(New  Orleans has the nation’s fastest per capita income growth since 2005.)

Lafayette                   $41,129                      #64

(Compare:  Houston, $44,001, #36, Dallas, $41,282, #62.  #1 is Bridgeport, Connecticut, $71,768, with San Francisco #2, Washington, D.C. #3, Pittsburgh #44, Durham – Chapel Hill #72.)

Among the Top 200 U.S. metro areas, ranked by per capita personal income:

Baton Rouge             $37,254                      #135

Shreveport-               $36,871                      #144

Bossier City 

Alexandria                $36,007                     #166

Lake Charles             $34,708                     #199

(Compare: Birmingham #103, Huntsville #105, Little Rock #108, Memphis #127, Killeen – Ft. Hood, Texas #131, Tampa #140, Louisville #141, Jackson, Mississippi #157, Phoenix #163, Gulfport-Biloxi #186.)

 Among the Top 300 U.S. metro areas, ranked by per capita personal income:

 Monroe                      $33,942                     #220

 (Compare:  Greenville, S.C. #221)

 The Lesson – Don’t Judge an area’s River of Income by the view from only one Side of the Stream

Before judging which communities are “rich” or “poor,” consider whether one’s view takes in only those at one end of the success ladder or the other.  Or whether one has seen, or even can see, the entire breadth of the river of personal income flowing through a metropolitan area.

Of course, if the absolute number of “mansions” is too low, don’t look for any Tiffany stores.  But do look at what’s behind the façade of “shacks” – you might be surprised by the possible Tiffany purchases resting inside the whole community.

 * Personal income is the income received by all persons from all sources. Personal income is the sum of net earnings by place of residence, property income, and personal current transfer receipts.” (U.S. Department of Commerce, Bureau of Economic Analysis.)

** Source:  Compiled by New Jersey Dept. of Labor and Workforce Development, Gov. Chris Christie


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