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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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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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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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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. (www.nea.gov)

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

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. (www.nea.gov)

“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.” (www.nea.gov)

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:
http://www.nea.gov/national/MICD25/grantee.php?id=21 . 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. (www.nea.gov)

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. (www.planetizen.com)

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.” (planetizen.com)

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.” (planetizen.com)

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.” (planetizen.com)

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, Newgeography.com)

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 (www.nea.gov)]

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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. http://www.aetv.com/hoarders

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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Code Enforcement Courts Work

Posted by on Sep 24, 2012 in Other |

Code Enforcement Courts Work

Code Enforcement Courts are establishing a successful track record in Louisiana.  Since 2007 they have been available to all Louisiana municipalities and parishes, see La. R.S. 13:2575.B. 

They provide for civil administrative proceeding and fines for adjudication of:  violations of public health, housing, fire code, environmental, and historic district ordinances.

In Monroe, it is called “Environmental Court.”  As Tina Anzalone, Chief of Code Enforcement, City of Monroe, has observed:

“The proceedings and cases are handled just like regular court and if the violator does not appear the judge can still make a court order for the owner to comply.  If they fail to comply after receiving the court order via certified mail the City of Monroe takes corrective actions to abate the violations and a lien is placed on the property along with court costs and penalties.  The owner does not have to appear for the court to make a ruling as per state statute.”

Monroe uses city attorneys as hearing officers.  

Other similar administrative courts are at work in Logansport(Code Enforcement Court) and Baton Rouge (Litter Court).

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