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Who Are You Calling Arbitrary? A Guide to Help Protect Your Land Use Decisions Without Inviting Lawsuits: Part 1

Posted by on Apr 28, 2016 in Government, Land Use, Local Government, Zoning | 0 comments

The team here at Neil Erwin Law recently gave a presentation to statewide municipal leaders on the topic, “Who Are You Calling Arbitrary? A Guide to Help Protect Your Land Use Decisions Without Inviting Lawsuits” because this is the typical reaction of decision-makers who, in good faith, believe they have made the right decision, only to be surprised by allegations to the contrary in a lawsuit.

So, how can local officials make zoning and subdivision decisions that benefit the community without inviting lawsuits?

Our summarized recommendation is to think inside the box: to place zoning and subdivision decisions inside a protective 4-sided virtual box, whose sides are:

Land Use Box

This blog is on Part 1 of 4 of the Land Use Decision Box. Here are some excerpts from our presentation on the 1st side of the box, which is to BE CLEAR.

Have Clearly-Written Ordinances, Procedures, Staff Reports (…And Stick to Them!)

The first step to take in order to protect your decisions against potential lawsuits is to be clear in your written words. You want your written ordinances, procedures, and staff reports to be easy to perceive, understand, and interpret. If not, you may be subject to a lawsuit alleging you were arbitrary and capricious.

It’s All About the Written Word: Be Clear and Careful

Ambiguity (read: not clear) can lead to lawsuits due to open interpretation of an unclear zoning ordinance.

To make sure you have clearly-written ordinances, if your municipality already has zoning and subdivision ordinances, it is important for you to understand the zoning regulations on which you rely to make decisions. If there are certain portions of such regulations you see as potentially open to interpretation, ordinances can be drafted to amend such ambiguous regulations to make them clearer.

When drafting, considering, or making a decision involving zoning or rezoning, remember your purpose is clear: Be Clear and Careful.

Using Your Clearly-Written Procedures/Staff Reports and Sticking to Them

You need staff reports of some kind, even if a summary of what is being requested by the applicant.

Staff reports written by the community’s assigned liaison to the zoning commission (often the zoning administrator) and submitted to your town’s zoning commission, serve the purpose of providing a clear understanding of the application on which the zoning commission must make a decision.

What to do? The staff report should include information about the zoning and future land use for the property and whether there are any questions about the appropriateness of the application.

Basic Components of a CLEAR staff report to follow (model example of a staff report in a rezoning application can be found on our Powerpoint of this presentation, at

  1. Your header should properly and clearly provide a “snapshot” overview of the application.
  2. Provide a clear, complete description of location and current zoning
  3. Describe requested zoning, and state what zoning is permitted in the location.  (Helpful note: Use-by-right zoning allows ANY of the permitted uses, not just the proposed one.)
  4. Describe the surrounding neighborhood.
  5. Clearly point out the relevant differences in the current and proposed zoning districts.
  6. State any additional issues that may result from rezoning.
  7. Explain the effect of the Master Plan on the rezoning application or at least whether the application is consistent with the future land use map.
  8. Provide any staff suggestions for other potential problems or solutions. It is not required to be in the form of a staff recommendation, but make the members aware of options for consideration.

Recent Cases on topic of BEING CLEAR:

G&H Development, LLC v. Nancy Penwell, et al., 13-0272, 2015 WL 3408796 (W.D. La. 5/27/15).

A developer sought approval for a subdivision of property zoned Residence-Agriculture for an approximately 150-lot subdivision arguing that the subdivision was a “use by right” under the R-A ordinance. The local MPC’s administrator rejected the application because the zoning of the property was R-A instead of R-1. Developer sued the MPC and Parish (as well as other individual defendants) for violation of its substantive due process rights. Defendants believed that the amendment section of the zoning ordinances applied to the development because it stated that the “subdivision or imminent subdivision of open land into urban building sites makes reclassification necessary and desirable.” The problem was “urban building site” was not defined in the Code or original ordinance, even though it had been consistently applied since inception.

In addition to proof of consistent application, a separate case from another state was cited by Defendants which interpreted the exact same language at issue to prove to the Court that the developer had no “of right” entitlement to develop the subdivision without rezoning. The Court agreed and held that the rejection of the application by the administrator was not arbitrary and capricious.

City of Baton Rouge/Parish of East Baton Rouge v. Myers, 145 So.3d 320 (La. 2014).

La. Supreme Court, reversing the Baton Rouge district court on direct appeal, upheld the restrictive local definition of “family” for purposes of local zoning ordinance restricting permissible occupancy of homes in a single-family residential zone.

Definition: “Family is an individual or two (2) or more persons who are related by blood, marriage or legal adoption living together and occupying a single housekeeping unit with single culinary facilities; or not more than two (2) persons, or not more than four (4) persons (provided the owner lives on the premises) living together by joint agreement and occupying a single housekeeping unit with single culinary facilities on a non-profit, cost sharing basis.”


Full paper and Powerpoint on this topic, including a downloadable Land Use Decision Box can be found at:

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The Emerging Focus on Local Economies

The Emerging Focus on Local Economies

Posted by on Nov 19, 2012 in Other |


A public-private partnership, the Louisiana Boardwalk in Bossier City, LA.

If “All Politics are Local,” then “All Economics are Local.”

“I think that post election, the economics and job creation focus is going to move to cities and what’s happening at the local level,” predicted Rana Raroohar of TIME in September 2012.

So what is happenning at the local level?

There are different growth strategies and experiments which are working in many of American cities, with different factors which underpin the metros with more consistent and resilient growth. While productivity is the main growth factor of any economy, Richard Florida agrees that “[i]t’s time to recognize that the U.S. economy is not only made up of industries which grow and decline at different rates, but hundreds of metro regions that do so as well.”

Graph above- the Metro Productivity Index— developed José Lobo of Arizona State University shows a ratio – the level of economic output per person for metros is compared to the gross domestic product (GDP) per person for the nation as a whole. Period 2001 to 2010 is covered, and is based on data from the Department of Commerce’s Bureau of Economic Analysis (BEA).

What should also be asked, in addition to what’s happening at the local level – is who is driving the demand for local government and business in cities and mega regions?

Milliennials (those around the ages of 20-34) have influenced the revival of the American city’s rebound over the last two decades, enabling the demographic to start putting down roots in urban neighborhoods and generating new demands for local government and businesses.

Downtown Fort Worth, Texas

Rolf Pendall in the Atlantic Cities believes “[a]s a result of these demands,  Milliennials may affect tomorrow’s cities as much as Baby Boomers have shaped today’s suburbia…The last time this big a generation of young people started reaching their late 20s was the Baby Boomers in the early 1970s.”

If the economics and job creation focus is shifting to cities and mega regions and what’s happening at the local level, there will also be political and cultural implications.



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Civic Public Relations 101: Perception is Reality

Civic Public Relations 101: Perception is Reality

Posted by on Sep 24, 2012 in Community |

Civic Public Relations 101:
Perception is Reality
How does a community see itself?

Before we proceed, enjoy this timelapse video of a proud community by clicking on picture below:

A community is…
  • “a social group of any size whose members reside in a specific locality, share government, and often have a common cultural and historical heritage.” (
  • identified by its ambition and ability to grow and prosper, as well as through preserving its roots and past accomplishments. (Think Dr. Seuss “Oh, the places you’ll go! You’ll be on your way up! You’ll be seeing great sights!”- meets Diana Ross-“Reflections of the way things used to be”)
  • Simply put, a community is made up of its people.
So, through its planning phases and periods of growth and change, does a community need positive reinforcement, just as a person does?
  • Younger generations need role models to provide perspective, knowledge, and positive reinforcement while going through life’s challenges.
  • Similarly, prospective communities in the midst of their challenging planning phases need knowledge and expertise about successful villages, towns, or cities, to confirm that their own visions are attainable through smart growth solutions.

View from restaurant in Georgetown area in DC on the Potomac River. Practical and attractive smart growth.

Picture-perfect in Paris:
Window boxes are abundant in neighborhoods, making a statement about Parisians as proud homeowners.

How does a community’s self-reflection affect the way others see it, and why should a community care about its perception?

The answer lies within the fundamental 3 C’s of a community:

  1. Character 
  2. Communication
  3. Culture
These 3 C’s make up a community’s identification.But, like a driver’s license, the picture sometimes is blurry, and you would like to hide certain information, but it’s a unique form of identification that  no one else can take away.
When the community wants to grow and plans to go places, the 3 C’s can become its passport. The community’s true identity remains the same but the passport allows it to explore other aspects of planning it never knew

Once a community knows exactly what it wants to be, then this self-awareness and vision produce a 4th C:
Civic Branding:
Where Reflection meets Perception: Reality
Civic branding is a community’s Facebook profile or Twitter page (figuratively and literally speaking). You choose how others view you.
his is a very important concept for a community and managing its image because “social media is about community. People join groups, follow, become ‘fans of’media outlets, people and companies that are of interest and relevant to their lives.”
(Tom Mighell, Shreveport Bar Association Legal Technology Seminar; 5/11)
or a community to successfully manage its image, its plan should contain both proactive and reactive elements. Social media tools can work in each element. AND it’s free.
(Tom Mighell, Shreveport Bar Association Legal Technology Seminar; 5/11)
But what does each community want for its civic brand?
End results differ tremendously from each community -and it should. Each community wants its reality to be specific to its vision (consisting of the 3 C’s & the 4th C: civic brand).
Civic branding can turn a community’s self-reflection and vision into reality through careful planning and specially crafted creative smart growth solutions.
Civic branding is how a community sees itself + how it wants others to see it. 
A community’s civic brand is much more than just a tagline or slogan- it is a fundamental concept.
It is your vision stamped with positive reinforcement.
Examples of successful civic brands:

Austin: “Keep Austin Weird”

New Orleans: “The Big Easy”

Civic brands & public relations become more complicated when planning for community growth, as government leaders must attract consumers (taxpayers, voters) and producers (economic development)to the area.
Creative planning should promote economic development that returns government to its core functions—building the civic infrastructure necessary to attract and retain people and businesses. (Richard Florida)
  • You can’t just have a generic model to hand out to government leaders to create civic branding.
  • It must be created on a solid legal foundation which matches the smart growth solutions unique to each community’s vision.
…which brings me to my last point…
 How that positive self-image is conveyed to produce economic development lies in the 5th C of a community:
Creativity is essential in the success of planning for a city’s viable & long-term future. With creative smart growth solutions,  a community will have a lasting foundation to make its vision sustainable reality.
Don’t you think “you’ve just got to love” this city after viewing this? Enjoy this video (made by an American) by clicking on picture below:

Civic branding can be a very powerful tool for perception persuasion.
 [Credit to municipal videos on YouTube and Vimeo: “Le Flâneur” by Luke Shepard (Music: The XX – Intro) and“You’ve Got the Love” by Alex Silver (Music: “You’ve Got the Love” by Florence and the Machine)]


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The Art of Creative Placemaking

Posted by on Sep 24, 2012 in Other |

1. What is Creative Placemaking?

“Creative Placemaking” is a way mayors, arts organizations, and the philanthropic sector can work together to promote the arts as a technique to help shape and rejuvenate the physical, social, and economic character of neighborhoods, cities, towns, and communities. It engages artists and the arts in efforts to make cities and communities more vibrant and engaging. (

Check out this video to explain the concept of creative placemaking:
But What’s It Mean?—the Sequel

Creative placemaking is one of the tools that mayors can use to embark upon their urban revitalization objectives, whether it is building artist live/work spaces in abandoned warehouses, designing youth employment programs around mentoring relationships with artists, or curating a performing arts series in urban public places. (

“Creative placemaking animates public and private spaces, rejuvenates structures and streetscapes, improves local business viability and public safety, and brings diverse people together to celebrate, inspire, and be inspired.” (

The Mayors’ Institute on City Design 25th Anniversary Initiative (MICD25) supports creative placemaking projects, such as the award of a $100,000 grant to the Shreveport Regional Arts Council for the development of the Shreveport Commons arts district, shown here: . Shreveport was one of 21 U.S. cities awarded National Endowment for the Arts grants in 2009.

2. Creative Placemaking helps make communities more creative and enjoyable.

Four specific areas to consider: reuse of abandoned space, commissioning public art, planning a cultural district, and designing new infrastructure in innovative ways. (

3. What do citizens want, and how can creative placemaking help communities?

The rules of placemaking haven’t changed since ancient times –
4 things people seek remain the same: comfort, variety, entertainment and walkability. (

The main boulevards of ancient cities attracted people through “entertainment, comfort, variety, walkability, sustenance, convenience, people-watching, safety and security, commons areas, and natural elements, such as trees, gardens, and water features. A successful place was enhanced by evocative or triumphal entrances, signage, iconic wayfinders, memorable architecture, and beautiful landscapes.” (

In 21st century communities, “the placemaker must meet timing expectations and budgets, be mindful of current regulations and building codes, and be especially aware of the immediate pressures of public development goals.” (

City planners or developers have a condensed delivery time “to create what often took lifetimes of organic development (including much trial and error) in previous eras. The margin for missteps has been radically curtailed however, especially from the perspective of the private-sector developer.” (

If cities want to remain attractive destinations, they must change and bring back the human touch in the following ways:
• We have to bring placemaking to the very heart of the civic agenda.
• We must start to build places that truly appeal to people – sustainable and charismatic, magnetic places.
• These cities must have all the human services and be beautiful and community-oriented.
• This combination will make such a place become attractive to a wide range of people.
(Larry Beasley,

After all, making cities attractive magnets for citizens and newcomers is what creative placemaking is all about.

(Thanks to The Mayors’ Institute on City Design 25th Anniversary Initiative of the National Endowment of the Arts and Creative Placemaking by Dr. Ann Markusen, principal of Markusen Economic Research Services, and Anne Gadwa, principal with Metris Arts Consulting.)

[Image Credits: National Endowment for the Arts (]

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Tip : The Horror of Hoarding

Posted by on Sep 24, 2012 in Other |

The Horror of Hoarding

In keeping with the Halloween theme of the weekend of this post, the following information is provided on the scary reality of hoarding, its implications for code enforcement personnel, and how it affects your own community.

Recognize the difference between the common “junky yard” situation often faced in code enforcement and the unique problem presented by true hoarders. There even is a popular reality TV show about this problem.

Hoarding: “the acquisition of, and inability to discard worthless items even though they appear (to others) to have no value” (Frost & Gross, 1993)

Compulsive Hoarding

1) the acquisition of, and failure to discard a large number of possessions that appear (to others) to be useless or of limited value

2) Living or work spaces sufficiently cluttered so as to preclude activities for which those spaces were designed; and

3) Significant distress or impairment in functioning caused by the hoarding behavior or clutter. (Frost and Hartl, 1996)

 Hoarding is …

Hoarding is not simply a messy desk (or we’d all be in trouble) …

Public Consequences of Hoarding

  • Fire
  • Cost to community in resources – social worker time, $ for clean up, etc
  • Contamination and Pests
  • Neighborhood Property Values decrease

Scope of the Problem

  • Community prevalence rates are somewhere around 5% of the general population (Samuels et. Al, 2008)
  • In Obsessive Compulsive patients: 18-42% (Rasmussen & Eisen, 1992)
  • Hoarding severity increases with each decade of life (Ayers et al., 2009)

Genetic Link

  • 85% of hoarders have a first degree relative that hoards
  • 37% have a family history of OCD
  • (Winsberg, 1999)

Personal Consequences of Hoarding

  • Fire
  • Food poisoning/contamination
  • Loss of social support
  • Impaired mobility
  • Hygiene consequences
  • Pets, rats, etc.
  • Relocation/Nursing Home Placement

The Impact of Clutter

  • 45% could not use refrigerators
  • 42% could not use kitchen sink
  • 42% could not use bathtub
  • 20% could not use bathroom sink
  • 10% could not use toilet

(Kim et al., 2000)

Hoarding problems require special attention by code enforcement personnel because hoarders, suffering from a psychiatric condition, will return an area cleaned by abatement or court order to its former cluttered state.  The advice is to seek the involvement of medical professionals to assist in a permanent solution. 

Source of statistics, with thanks:  Presentation, “Hoarders & Mental Illness from the Mental Health Perspective,” Gabriela Brannan, Deputy City Attorney, Code Enforcement Unit, San Diego, CA; IMLA Code Enforcement Conference, New Orleans, LA, October 9, 2010.

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