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Who Are You Calling Arbitrary? A Guide to Help Protect Your Land Use Decisions Without Inviting Lawsuits: Part 3

Posted by on Feb 21, 2017 in Other | 0 comments

Previously, Caroline Mladenka blogged on Part 1, Be Clear, and Neil Erwin blogged on Part 2, Listen. After you have clearly stated your intentions and given the public the opportunity to be heard, you must Be Consistent.

In other words, how does a local government treat similarly situated individuals equally?

 

If you do not treat similarly situated individuals equally, you may be subject to a lawsuit alleging you violated an individual’s rights to equal protection under the federal and/or state constitutions.

 

A constitutional claim will be successful against you if there was no rational basis for your decision. Put another way, a constitutional claim will be successful against you if your decision bore no rational relation to the governmental objective, i.e. the health, safety or general welfare of the public.

 

This is a very high standard for the challenger to meet. Courts general will not overturn a land use decision by a governmental authority if there is any rational, conceivable basis for the decision.

 

So, what are some examples of treating similarly situated applicants equally?

 

Zoning

Zoning regulations must be uniformly applied within each zoning district or zone, pursuant to La. R.S. 33:4722 for municipal zoning regulations or La. R.S. 33:4780.41 for parish zoning regulations.

Variances, special use approvals, or conditional use approvals are permitted, but the application of these must also be applied so as to not treat similarly situated applicants differently. That is, you should stay consistent with their application to different individuals or applicants.

 

Subdivision

A subdivision plat application may not be granted in certain situations but then refused in similar situations without some rational basis for the refusal.

For example, a local governmental authority may not first approve 3 phases in a planned subdivision development but later refuse to approve a 4th phase without some significant difference in the plan or some other rational basis. See Urban Housing of America, Inc. v. City of Shreveport, 26 So.3d 226 (La. App. 2nd Cir. 10/28/09).

 

What is a rational basis for treating a similarly situated applicant differently?

 

In the case of Reid v. Rolling Fork Public Utility District, 854 F.2d 751 (5th Cir. 1988), a federal court found that it was rational for the district to refuse sewer service to a development because that district’s current infrastructure was at capacity, even though it had previously approved sewer service to similar developments.

 

What are some practical ways to help you treat similarly situated applicants equally?

 

1. Track your zoning cases, and update your zoning map.

2. Track subdivision cases, and update on the zoning map.

3. Keep accurate minutes of meetings and public hearings.

4. Adopt a master plan and/or future land use map, and refer to  it in decisions.

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Communities on the “Rise”

Communities on the “Rise”

Posted by on Jan 21, 2013 in Community |

Following up from a previous post, The Emerging Focus on Local Economies (November 19, 2012), what else can happen on the local level? In Washington, D.C., two brothers began purchasing properties in their local emerging neighborhoods a few years ago with the belief that there should be a connection between the desires of a neighborhood and the bottom lines of its investors. Their simple question, “Why couldn’t people in the community invest in real estate right next door?”

So, they created Fundrise, a website that allows individuals to invest directly in local real estate development projects. While the idea seems hopeful, it may be far away from Shreveport-Bossier. The list of private offerings available on Fundrise are for properties all located in Washington, D.C. If, as suggested in the earlier post, millennials can influence the revival of American cities, perhaps they can begin to invest in and finance real estate development in their communities.

And, when is the last time a real estate developer asked you what you wanted in your community? One of the Fundrise brothers has now co-founded Popularise, a website that gives individuals a place, called a “drawing board”, to voice their ideas for what businesses they want in their communities, although the process isn’t necessarily democratic. “The concept with the most votes won’t necessarily take the space.” However, it does provide developers with insight into what communities are looking for when it comes to growth and expansion. So far, developers in five U.S. cities have posted potential development sites on Popularise – Fort Worth, TX; Oklahoma City, OK; Sarasota, FL; Seattle, WA; and Washington, D.C.

Fort Worth is only a few hours away. Is Shreveport-Bossier on the “rise”?

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Institutionalizing Innovation in Government

Institutionalizing Innovation in Government

Posted by on Nov 2, 2012 in Government |

Can a local government body organize itself in a manner that will generate creativity and progressive problem-solving? The Governor of Massachusetts thinks so. He has appointed that state’s, and likely the nation’s, first Government Innovation Officer. Its purpose? – “to find innovative ways to improve efficiency and streamline the delivery of government services.” Innovation in government is a fairly new concept, while innovation in other industries, such as technology and small business, has long been recognized and rewarded as today’s society advances

Locally, trendsetters include Bossier Parish Community College which has become quite adept at responding to recent, monumental budget cuts to higher education in the state. BPCC administration created and staffed a Division of Innovative Learning that seeks to identify new and more efficient educational opportunities for the area’s workforce. It seems to be working as BPCC just posted its highest ever enrollment at 7,900 students, an increase of 11% from fall 2011.

 

So, is the public argument of bigger vs. smaller government just rhetoric now? Author Mark Funkhouser succinctly sums it up “[T]he present debate about bigger or smaller government is beside the point – the real issue is how to make government more flexible and adaptable.”

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