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WHO ARE YOU CALLING ARBITRARY? A GUIDE TO HELP PROTECT LAND USE DECISIONS WITHOUT INVITING LAWSUITS. Part 2: Listen

WHO ARE YOU CALLING ARBITRARY? A GUIDE TO HELP PROTECT LAND USE DECISIONS WITHOUT INVITING LAWSUITS. Part 2: Listen

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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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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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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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.” (dictionary.com)
  • 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
possible.

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
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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Tip : Communities Fix Up to Move Up

Posted by on Sep 24, 2012 in Community |

Several local governments in North Louisiana, including Shreveport, Bossier Parish, Minden, and Ruston, are joining a national trend toward more aggressive enforcement of property standards ordinances.  These efforts are aimed at eliminating neighborhood eyesores, from the removal of abandoned vehicles, to cutting weeds on neglected properties, to demolition of dilapidated structures.  Shreveport’s program memorably is called T.B.O.N.E., for Taking Back Our Neighborhoods Everyday.

Governmental mobilization for neighborhood fix up is a commendable, even essential, foundation for overall community advancement.

What might seem like small indicators of neighborhood apathy, such as broken windows in abandoned buildings, can start the downhill slide to neighborhood decay unless actively remedied.  This “Broken-Window Theory” has been documented by public policy experts George Kelling and James Q. Wilson when they observed “. . . social psychologists and police officers tend to agree that if a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken.”  The signal is that no one cares.  Wilson & Kelling, “Making Neighborhoods Safe,” Atlantic Monthly, Feb., 1989.

The new active enforcement steps, incorporating condensed periods between notification and removal of inoperative vehicles, either voluntarily or by forced towing, are a welcome sign of civic vitality.

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Tip : A Good Planning Source for Typical Communities

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

Typical communities (96% of Louisiana municipalities have a population of 25,000 or less by 2000 census figures, for example) often are on the lookout for user-friendly planning materials.

For a planning site that is low in jargon and high in connecting similar places, try out Planning Commissioners Journalwww.plannersweb.com.

Published 4 times/year at a standard subscription rate of $62, with a special rate of $50 for municipalities under 25,000, Planning Commissioners Journal  is a gateway to practical advice, trends, and training.  A recent article entitled, “Small Cities, Big Challenges,” provides the flavor.  Citizens appointed to planning commissions and boards of adjustment, and the local government officials who work with them, should find the information quite helpful.

Particularly recommended for review are two training manuals:  “Welcome to the Commission:  A Guide for New Members,”  and its supplement, “Now that You’re on Board:  How to Survive . . . and Thrive . . . as a Planning Commissioner.”  Also, “Planning ABC’s – an Overview of 26 Planning Topics from Automobiles to Zoning.”

For the kinds of land use issues facing most communities, this source is worth a look.

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