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 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.
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.