This document provides guidance for local officials on making zoning and subdivision decisions that withstand legal challenges. It advises officials to: 1) Be clear by having unambiguous ordinances, procedures, and staff reports; 2) Listen to citizens but follow due process and public meeting laws; 3) Be consistent by treating similarly situated applicants equally; and 4) Give reasons for decisions based on facts rather than opinions. Following these guidelines helps ensure decisions are made within legal authority and for the benefit of the community.

1. 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

2. 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.

3. 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

4. ZONING BASICS

5. What is Zoning?
Permitted uses of land and buildings
Intensity or density of the permitted uses
Maximum height and minimum setbacks (called the
“building envelope”)
ZONING BASICS

6. 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”

7. What are the Steps for a Louisiana Municipality that
Wants to Enact a Zoning Ordinance?
Appoint a zoning commission
At least, a Future Land Use Map
Adoption of ordinance and zoning map

9. 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 under
Police 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

10. Rezoning
Judicial Review
Prima facie presumption of validity
Risk: Judge finding unfair

11. SUBDIVISION BASICS

12. What Are Subdivision Regulations?
Land use controls that govern the division of land into
two or more lots, parcels or sites for building.
Definitions of “subdivision” and “resubdivision”

13. Examples of Subdivisions
Diagram from Municode,
White County, GA
Credit: Preston Wood & Associates, LLC,
Houston, TX

14. What Elements Comprise Subdivision Regulations?
1. Procedure to obtain plat approval
2. Design criteria for the subdivision
3. Construction standards

15. The 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”

16. 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

17. 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

18. Minor Subdivision Plats
La. R.S. 33:113.1
Minor modifications

19. BE CLEAR

20. Carlotta Askew-Brown
MPC Planner
Advice on Clear Ordinances & Reports

22. • DO THIS Easy to perceive, understand and interpret =
Trust & understanding
• NOT THAT Unclear zoning ordinance and open interpretation =
Distrust & potential lawsuit

23. 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 images
for universal clarity.

24. 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

26. 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

27. STEP 2:
City Council/Town Council/Board of Aldermen introduce
the Ordinance.
Publication Requirement – La. R.S. 33:4725,
referring to La. R.S. 33:4724
What Are The Statutory Requirements
for Advertising Zoning Ordinances?

28. 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) and
La. R.S. 43:143
What Are The Statutory Requirements
for Advertising Zoning Ordinances?

29. LISTEN

30. Charles Grubb,
City & Parish Attorney
Being Heard & Listening

32. LISTEN:
Give citizens their right
to be heard, but follow
your laws & proceduresDue process
Notice of a hearing and reasonable opportunity
to be heard

33. Public Meetings Law
Adopt Rules for Public Hearings
Remember, public opinion is an element of the
decision but not the overriding one.

34. BE CONSISTENT

35. BE CONSISTENT:
Treat similarly situated
applicants equally
Rational basis test
What are some examples of treating similarly
situated applicants equally?

36. “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?

37. GIVE REASONS

38. 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 decision
is a court more likely to reverse
the decision.
No Basis in Health, Safety or General Welfare =
Arbitrary and Capricious Decision
Fairness of the Decision

39. Unresolved traffic or drainage concerns
Consistency (or inconsistency) with a community’s
comprehensive plan or future land use map
Compatibility (or incompatibility) with the character
of the neighborhood
“Reasons stated in the staff report”
Stated Reasons under Police Power + Following Zoning
Ordinance = Proof of Fairness of the Decision

40. Otha Anders,
Ruston Planning & Zoning
How To Make a Motion

42. No Personal Opinions
Stick to the facts!

43. CONCLUSION
Think and act “within the box.”

44. 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