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Tip : For Variances and Special Permits by Boards of Adjustment, think Standards

Posted by on Sep 24, 2012 in Uncategorized | 0 comments

Boards of adjustment make important administrative decisions, including variances and special permits (special exceptions, special use permits).  Variances often are requested in lot set-back requirements, and requests for special permits frequently are made for such uses as day care centers and mobile homes/manufactured housing.

These decisions by a board of adjustment typically are reviewable only by a state district court, as provided in the Standard State Zoning Enabling Act.  Zoning commissions, on the other hand, make zoning or rezoning recommendations to local legislative bodies, since only the legislative bodies have the authority to enact or amend a zoning ordinance.

This difference between boards of adjustment and zoning commissions in “where the buck stops” makes a difference in the standards that govern the decisions made by each appointed body.  The heavier burden for guidance by adopted standards falls on boards of adjustment.

Boards of adjustment run a serious risk of having their decisions overturned if the decision-making lacks adopted standards, or if applications similar in fact are treated inconsistently.  ” . . . Standards for granting a special use permit must ensure equal treatment for all applicants to prevent the board [of adjustment] from exercising their power arbitrarily.”  King v. Caddo Parish Commission, 97-1873 (La. 10/20/98), 719 So.2d 410.  “Where permits are granted in similar situations and refused in others, the refusal to grant a permit may constitute nonuniform application of zoning ordinances that is arbitrary and unreasonable.”  Clark v. City of Shreveport, 26,638 (La. App. 2 Cir. 5/10/95), 655 So.2d 617.

The answer is to have adopted standards to guide administrative decisions of boards of adjustment, and then to follow them fairly and consistently.  But carefully consider in advance the standards that will be drafted as the basis for decision.  If the local zoning ordinance specifies the grounds on which a special permit may be issued, the decision must be based on an analysis of these grounds and not others.

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Tip : Start with a Future Land Use Plan

Posted by on Sep 24, 2012 in Uncategorized | 0 comments

The relationship between zoning and planning, or between a zoning ordinance and a master plan, can be confusing.  Common sense calls for a legal consensus:  zoning regulations should be based, at the least, on a future land use plan (a component of a comprehensive master plan).

The zoning vs. planning confusion is understandable.  Two separate model state legislative acts – one for zoning in 1924 and one for planning in 1928 – were published by the U. S. Department of Commerce when Herbert Hoover was its Secretary.  Together these model acts form the adopted enabling statutes, and thus the legal foundation, for the land use regulations of virtually every state (and through them, each county/parish and municipality).

These common sources of law have seen great differences develop in terminology and practice from state to state and from municipality to municipality, depending on local conditions and political climates.  However, a key statutory mandate almost universally applies:  a locality which desires to implement zoning regulations must do so “in accordance with a comprehensive plan.”  (See, e.g., La. R.S. 33:4723.)

What exactly constitutes a “comprehensive plan” or “master plan” is subject to different legal interpretations.  Moreover, localities are given authority both by the courts and legislatures to adopt such a comprehensive plan one part at a time (see La. R.S. 33:106.C., for instance).  But a roadmap for planning and regulation is essential, and the recommended first step must be the adoption of a future land use plan as a physical, map-based, easily understood, guide to the various zoning district regulations that must follow.

Without such a future land use plan, zoning can remain reactive.  With it, land use regulation becomes proactive, utilizing a community-based blueprint.

Please give your thoughts by responding by using the form below.  What you have to say is valuable and appreciated.

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Tip : For Master Planning, Follow the Expert’s Checklist

Posted by on Sep 24, 2012 in Uncategorized | 0 comments

Paul Farmer, Executive Director and CEO of the 43,000-member American Planning Association, spoke in Shreveport (his home town) on December 15, 2007 at the Shreveport MPC’s master planning retreat.
Mr. Farmer offered a comprehensive master plan checklist:

1.  Take stock of where you are

–  strengths, weaknesses, opportunities, threats.

2.  Determine where you want the community to be.

3.  Identify alternatives, without premature restraints

4.  Make choices

–  look to the basic values of the community for criteria.

5.  Implement the choices made

– utilize both zoning code updates (for investor confidence) and a multiyear capital improvement program (because “where a community spends its money is the best indicator of its priorities”).

6.  Evaluate – how are we doing?

Other useful planning tips offered:  Enable all citizens to make choices about their future.  Create an expectation that their input will be respectfully heard, “but that doesn’t necessarily mean that everyone will get their way.”

What Mr. Farmer observes the South is and is not:  It is defined by:  “Family, faith, and friends – this is how it operates.”  What it is not:  “Government institutions, civic institutions, or taxes.”

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Tip : Commissioner Training a Legal Requirement

Posted by on Sep 24, 2012 in Uncategorized | 0 comments

Zoning Commissioner Training is a Legal Requirement, not just a Good Idea

All members of Louisiana municipal and parish planning/zoning commissions and boards of adjustment appointed on or after July 12, 2004, MUST receive at least 4 hours of training in the duties, responsibilities, ethics, and substance of their positions (La. R.S. 33:103.1, effective July, 2004). The deadline for completion of training is one year after appointment.

This training, which is to be approved by the planning/zoning commission or board of adjustment, is not just a good idea but is vitally important. Why? Because someone objecting to a zoning or board of adjustment decision who wants to file a lawsuit will look for legal and technical defects in the process. This statutory mandate for training, if found lacking, is just the kind of legal trap that could lead to embarrassment or overturning of a contentious decision.

Training requirements can be satisfied by attendance at various land use seminars offered in Louisiana by providers like Lorman Education Services (www.lorman.com), or now, LSU in Shreveport through its annual “Upstate Louisiana Land Use Planning and Real Estate Development Law Conference” (www.ce.lsus.edu). The American Planning Association (www.planning.org), through its Louisiana Chapter, also is considering avenues for delivery of required training.

While I offer required training on-site, I would like to develop delivery of this training on-line in the interest of making it more easily available and, hopefully, improving everyone’s important planning and zoning decisions.

Please give your thoughts by responding by using the form below. What you have to say is valuable and appreciated.

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