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

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

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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