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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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Who Are You Calling Arbitrary? A Guide to Help Protect Your Land Use Decisions Without Inviting Lawsuits: Part 1

Posted by on Apr 28, 2016 in Government, Land Use, Local Government, Zoning | 0 comments

The team here at Neil Erwin Law recently gave a presentation to statewide municipal leaders on the topic, “Who Are You Calling Arbitrary? A Guide to Help Protect Your Land Use Decisions Without Inviting Lawsuits” because this is the typical reaction of decision-makers who, in good faith, believe they have made the right decision, only to be surprised by allegations to the contrary in a lawsuit.

So, how can local officials make zoning and subdivision decisions that benefit the community without inviting lawsuits?

Our summarized recommendation is to think inside the box: to place zoning and subdivision decisions inside a protective 4-sided virtual box, whose sides are:

Land Use Box

This blog is on Part 1 of 4 of the Land Use Decision Box. Here are some excerpts from our presentation on the 1st side of the box, which is to BE CLEAR.

Have Clearly-Written Ordinances, Procedures, Staff Reports (…And Stick to Them!)

The first step to take in order to protect your decisions against potential lawsuits is to be clear in your written words. You want your written ordinances, procedures, and staff reports to be easy to perceive, understand, and interpret. If not, you may be subject to a lawsuit alleging you were arbitrary and capricious.

It’s All About the Written Word: Be Clear and Careful

Ambiguity (read: not clear) can lead to lawsuits due to open interpretation of an unclear zoning ordinance.

To make sure you have clearly-written ordinances, if your municipality already has zoning and subdivision ordinances, it is important for you to understand the zoning regulations on which you rely to make decisions. If there are certain portions of such regulations you see as potentially open to interpretation, ordinances can be drafted to amend such ambiguous regulations to make them clearer.

When drafting, considering, or making a decision involving zoning or rezoning, remember your purpose is clear: Be Clear and Careful.

Using Your Clearly-Written Procedures/Staff Reports and Sticking to Them

You need staff reports of some kind, even if a summary of what is being requested by the applicant.

Staff reports written by the community’s assigned liaison to the zoning commission (often the zoning administrator) and submitted to your town’s zoning commission, serve the purpose of providing a clear understanding of the application on which the zoning commission must make a decision.

What to do? The staff report should include information about the zoning and future land use for the property and whether there are any questions about the appropriateness of the application.

Basic Components of a CLEAR staff report to follow (model example of a staff report in a rezoning application can be found on our Powerpoint of this presentation, at http://www.neilerwinlaw.com/papers.html):

  1. Your header should properly and clearly provide a “snapshot” overview of the application.
  2. Provide a clear, complete description of location and current zoning
  3. Describe requested zoning, and state what zoning is permitted in the location.  (Helpful note: Use-by-right zoning allows ANY of the permitted uses, not just the proposed one.)
  4. Describe the surrounding neighborhood.
  5. Clearly point out the relevant differences in the current and proposed zoning districts.
  6. State any additional issues that may result from rezoning.
  7. Explain the effect of the Master Plan on the rezoning application or at least whether the application is consistent with the future land use map.
  8. Provide any staff suggestions for other potential problems or solutions. It is not required to be in the form of a staff recommendation, but make the members aware of options for consideration.

Recent Cases on topic of BEING CLEAR:

G&H Development, LLC v. Nancy Penwell, et al., 13-0272, 2015 WL 3408796 (W.D. La. 5/27/15).

A developer sought approval for a subdivision of property zoned Residence-Agriculture for an approximately 150-lot subdivision arguing that the subdivision was a “use by right” under the R-A ordinance. The local MPC’s administrator rejected the application because the zoning of the property was R-A instead of R-1. Developer sued the MPC and Parish (as well as other individual defendants) for violation of its substantive due process rights. Defendants believed that the amendment section of the zoning ordinances applied to the development because it stated that the “subdivision or imminent subdivision of open land into urban building sites makes reclassification necessary and desirable.” The problem was “urban building site” was not defined in the Code or original ordinance, even though it had been consistently applied since inception.

In addition to proof of consistent application, a separate case from another state was cited by Defendants which interpreted the exact same language at issue to prove to the Court that the developer had no “of right” entitlement to develop the subdivision without rezoning. The Court agreed and held that the rejection of the application by the administrator was not arbitrary and capricious.

City of Baton Rouge/Parish of East Baton Rouge v. Myers, 145 So.3d 320 (La. 2014).

La. Supreme Court, reversing the Baton Rouge district court on direct appeal, upheld the restrictive local definition of “family” for purposes of local zoning ordinance restricting permissible occupancy of homes in a single-family residential zone.

Definition: “Family is an individual or two (2) or more persons who are related by blood, marriage or legal adoption living together and occupying a single housekeeping unit with single culinary facilities; or not more than two (2) persons, or not more than four (4) persons (provided the owner lives on the premises) living together by joint agreement and occupying a single housekeeping unit with single culinary facilities on a non-profit, cost sharing basis.”

 

Full paper and Powerpoint on this topic, including a downloadable Land Use Decision Box can be found at: http://www.neilerwinlaw.com/papers.html.

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Multi-Family Rezoning under Federal Duress despite Comprehensive Plan Defense?

Multi-Family Rezoning under Federal Duress despite Comprehensive Plan Defense?

Posted by on Oct 29, 2015 in Government, Land Use, Zoning | 0 comments

HE-headshot-222-x-333-photoshopped

The impact on land use law nationally still is being assessed from the decision June 25, 2015, by the U. S. Supreme Court in Texas Department of Housing & Community Affairs v. The Inclusive Communities Project, Inc., _____ U.S._____ (No. 13-1371), 135 S.Ct. 2507, 2015 WL 2473449.  Will it mean multi-family rezoning under federal duress despite a defense that a community’s comprehensive plan calls for continued single-family zoning of a site in dispute?

House in new urbanism development of Prospect project in Longmont, Colorado.

House in new urbanism development of Prospect project in Longmont, Colorado.

The Court, in a 5-4 decision, upheld the application of disparate impact under the Fair Housing Act.  And while the Court also recognized significant limitations on the application of this test, the limits clearly are subject to be tested in future lawsuits involving municipal rezoning decisions.

 

In a disparate impact claim brought under the Fair Housing Act, a plaintiff may establish liability, without proof of intentional discrimination, if an identified business practice has a disproportionate effect on certain groups of individuals and if the practice is not grounded in sound business considerations.  This is the first time the U.S. Supreme Court has recognized such claims.

Small and new modern apartment building

Importantly, the Court found as a limitation on such claims that a plaintiff cannot prevail in a disparate impact claim over an offered defense of legitimate business justification if the plaintiff cannot prove that there is an available and feasible alternative practice that has less disparate impact, but meets the business justification.

New apartment building in suburban area

One area where this type of lawsuit will hit home will be when a plaintiff developer is denied rezoning for multi-family use of subsidized housing of a site zoned for single-family residential use, with the community’s comprehensive plan also showing low-density residential use for the site under the plan’s future land use map.

 

The obvious defense will be raised that the community’s comprehensive plan, adopted in a non-discriminatory fashion, meets the defense of “business justification” for the denial of rezoning. Will the defense be successful?  Stay tuned.  The alternative could be the type of damages imposed on the City of Sunnyvale, Texas.  http://www.theatlantic.com/business/archive/2015/06/supreme-court-inclusive-communities/396401/

http://www.dmagazine.com/publications/d-magazine/2012/march/sunnyvale-the-whitest-town-in-north-texas

House in new urbanism development of Prospect project in Longmont, Colorado.

 

 

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Tip : Listen for NPR’s new Land Use Series: “Shifting Ground” on All Things Considered

Posted by on Sep 24, 2012 in Land Use |

A new public radio series, Shifting Ground, on land use issues and how they are reflected in the ways communities are coping with growth and change started airing on NPR’s “All Things Considered” on February 28.  The series now will continue to air on “All Things Considered” on an occasional basis (anticipated at least twice a month).

What makes Shifting Ground unique is that it approaches land use not in dry technical terms, but instead as a series of compelling human interest stories.  Like the first series installment, which reported on the friction that develops when a community’s rural, animal-friendly lifestyle clashes with new noise-sensitive urban neighbors who move in as the result of sprawl.

In the case of Golden Valley, Nevada, which is being absorbed by the metropolitan growth of nearby Reno, Nevada, a noise fine levied against the owner of a braying donkey led to a new county regulation, requiring disclosure to new residential purchasers of their potential exposure to rural noises and odors.  Yet to be seen is the impact of this new disclosure requirement on potential nuisance citations, and whether placing new residents on notice of rural exposure will cause any shift of the legal standard of “reasonableness.”

As the producer of the series says at their website, www.shifting-ground.com, “Our goal:  to find dramatic little tales of people in different parts of the country grappling with complex land issues.”

Listen in.

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Tip : Attend an Upcoming Smart Growth Land Use Conference

Posted by on Sep 24, 2012 in Land Use |

Three upcoming smart growth land use conferences in the North Louisiana  – Texas region are worth a look:

1.       March 17, Second Annual LSUS Land Use Planning and Real Estate Development Conference.  Louisiana State University in Shreveport campus.  9 a.m. – 4 p.m.  6.5 hours of continuing education credits either approved (including La. State Bar) or pending. Registration (including lunch) $89/person through March 3, then $99/person.  www.ce.lsus.edu

2.      March 18, Economic Outlook Conference, Topic:  Smart Growth.  Louisiana State University in Shreveport campus.  8 a.m. – 1:30 p.m. Registration $55/person in advance, $65/person at the door. www.lsus.edu/cber

3.      April 3-6, CNU XVI, Congress for the New Urbanism Annual Conference, Austin, Texas.  Registration packages from $795 down before March 5, then $915 down.  www.CNUXVI.org

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