Who Are You Calling Arbitrary? A Guide to Help Protect Your Land Use Decisions Without Inviting Lawsuits By: Neil Erwin Susannah O. Stinson Caroline E. Mladenka Presented to: Louisiana Municipal Association July 31, 2015 Neil Erwin Law, LLC www.neilerwinlaw.com Follow us on Twitter @NeilErwinLaw INTRODUCTION How can local officials make zoning and subdivision decisions that benefit the community without inviting lawsuits?Replacing long-term rationality with short-term expedience, i.e., looking at each situation on a purely ad hoc political basis, is no way to run Mayberry, much less . . . [your municipality].Louisiana Court of Appeal, 2013. Picture the result you do not want to have happen. Visualize the result you do want to happen. Protect your decisions by making them within these four parameters: BE CLEAR LISTEN BE CONSISTENT GIVE YOUR REASONS ZONING BASICS What is Zoning? Permitted uses of land and buildingsIntensity or density of the permitted usesMaximum height and minimum setbacks (called the building envelope)ZONING BASICS How Long Has Zoning Law Been in Place? 1916 New York City adopts first zoning ordinance Village of Euclid v. Ambler Realty Company (United States Supreme Court, 1926) Source of Euclidian zoning What are the Steps for a Louisiana Municipality that Wants to Enact a Zoning Ordinance? Appoint a zoning commissionAt least, a Future Land Use Map Adoption of ordinance and zoning map What rights do Local Governments in Louisiana have to Regulate Private Property through Zoning? 1. Balancing of Constitutional Rights Private Property Rights Governmental Regulatory Rights underPolice Power and Zoning Authority 2.La. R.S. 33:4721 et seq. 3.Limitation of Governmental Zoning Regulation Least Restrictive Use and Not Arbitrary and Capricious Rezoning Judicial Review Prima facie presumption of validity Risk:Judge finding unfair SUBDIVISION BASICS What Are Subdivision Regulations? Land use controls that govern the division of land intotwo or more lots, parcels or sites for building. Definitions of subdivision and resubdivision Examples of Subdivisions Diagram from Municode, White County, GA Credit: Preston Wood & Associates, LLC, Houston, TX What Elements Comprise Subdivision Regulations? 1.Procedure to obtain plat approval 2.Design criteria for the subdivision 3.Construction standardsThe general enabling legislation under Louisiana law for subdivision regulations is Louisiana Revised Statutes, Title 33: Municipalities & Parishes, Chapter 1. Lawrason Act municipalities (non-home rule charter) can enact subdivision regulations, but most delegate that authority to a planning commission. The platting authority How is a Subdivision Plat Approved? La. R.S. 33:5051 Elements of a plat La. R.S. 33:113 The 60-day rule & its limitations The decision to approve or disapprove a subdivision plat by a planning commission is a legislative act, or an exercise of its legislative discretion based upon the data presented to it. A discretionary process Urban Housing case Minor Subdivision Plats La. R.S. 33:113.1 Minor modifications BE CLEAR Carlotta Askew-Brown MPC Planner Advice on Clear Ordinances & Reports Be Clear Include pictures and diagrams for clarity so everyone understands the ordinance Staff Reports are essential to; Explain what is being asked for Show what ordinances and rules are already in place Explain what the site plan is lacking Explain what needs to be improved on before the nextmeeting If the staff report reflects a guideline or procedure is not being followed, the zoning board has the right to make its decision based on the staff report. The zoning board wants to make the right decision for the property, for the city, and for the economy! Carlotta Askew-Brown DO THISEasy to perceive, understand and interpret =Trust & understanding NOT THATUnclear zoning ordinance and open interpretation = Distrust & potential lawsuit HAVE CLEAR Ordinances and Procedures Understand your own zoning regulations and protect yourself by amending ambiguous portions. When drafting or interpreting your zoning ordinances, remember your decision-making purpose is clear: Be Clear and Careful. Decision-Protection Tip: In addition to your written text, add visual imagesfor universal clarity. BE CLEAR in your STAFF REPORTS Staff reports help commissioners make a better decision. Include in your staff report: Zoning & future land use information for the property

Questions regarding appropriateness of the application What Are The Statutory Requirements for Advertising Zoning Ordinances? STEP 1: Zoning Commission holds a public hearing to consider rezoning/zoning ordinance, then makes written report of recommendations to the City Council/Town Council/ Board of Aldermen. Publication Requirement La. R.S. 33:4726 STEP 2: City Council/Town Council/Board of Aldermen introducethe Ordinance. Publication Requirement La. R.S. 33:4725,referring to La. R.S. 33:4724 What Are The Statutory Requirements for Advertising Zoning Ordinances? STEP 3: City Council/Town Council/Board of Aldermen considers the report from the Zoning Commission, holds a public hearing, then votes on the rezoning Ordinance.The Ordinance must then be published in the official journal. Publication Requirement La. R.S. 33:406.D(2) andLa. R.S. 43:143 What Are The Statutory Requirements for Advertising Zoning Ordinances? LISTEN Charles Grubb, City & Parish Attorney Being Heard & Listening Participants should leave feeling they were heard and heard fairly Time limits should be set for each side Assure each side adheres to the time limits Everyone should feel they have had a fair chance Avoid any talk indicating a pre-disposed position Charles Grub LISTEN: Give citizens their right to be heard, but follow your laws & procedures Due process Notice of a hearing and reasonable opportunityto be heard Public Meetings Law Adopt Rules for Public Hearings Remember, public opinion is an element of the decision but not the overriding one. BE CONSISTENT BE CONSISTENT: Treat similarly situated applicants equally Rational basis test What are some examples of treating similarlysituated applicants equally?Spot zoning What is a Rational Basis for Treating a Similarly Situated Applicant Differently? What Are Some Practical Ways To Help You Treat Similarly Situated Applicants Equally? GIVE REASONS GIVE YOUR REASONS: (not your opinions) State your reasons for decision on the record A court in doubt as to the reason for a land use decisionis a court more likely to reverse the decision. No Basis in Health, Safety or General Welfare =Arbitrary and Capricious DecisionFairness of the Decision Unresolved traffic or drainage concerns Consistency (or inconsistency) with a communitys comprehensive plan or future land use map Compatibility (or incompatibility) with the characterof the neighborhood Reasons stated in the staff report Stated Reasons under Police Power + Following Zoning Ordinance = Proof of Fairness of the Decision Otha Anders, Ruston Planning & Zoning How To Make a Motion Make a motion by first Consider each application very thoroughly Have approval from various governing officials Have input from local property owners Does it make logical sense for the future if it is consistent with existing plans, if there is no voiced opposition, then I move to approve a request Otha Anders No Personal Opinions Stick to the facts! CONCLUSION Think and act within the box. BE CLEAR: Clearly-written ordinances, procedures, & staff reports LISTEN: Give citizens their right to be heard, but follow your laws & procedures BE CONSISTENT: Treat similarly situated applicants equally GIVE YOUR REASONS: (not your opinions) State your reasons for decision on the record Protecting Land Use Decisions Land Use Decision Box 2015