THE IMPORTANCE OF A ZONING DECISION
The importance of a zoning decision can be multi-faceted. A zoning decision can greatly affect a person’s business goals or the nature of the neighborhood. We recently represented a group of neighbors who fought an industrial project being built near their quiet neighborhood. For these individuals, they had saved money to buy their forever homes. Now their forever homes were being intruded on by an industrial project which would greatly affect traffic and flooding in the area.
HOW ZONING DECISIONS WORK
We represent clients who are challenging a zoning decision, whether the zoning be granted or denied in their favor. The intricacies of the ways zoning decisions are made in different cities and parishes in Louisiana varies. However, generally many cities have a planning and zoning commission which will review the requested change and then make a recommendation for or against the zoning to the local city council. The local city council is usually free to accept or reject the recommendations of the planning and zoning commission.
HOW TO CHALLENGE A ZONING CHANGE WHICH HAS BEEN APPROVED BUT WHICH YOU OPPOSE
It is not uncommon for zoning changes to be made, and for people to want to challenge the decision. You must keep in mind their are legal deadlines for doing so which vary from jurisdiction to jurisdiction. Just know, if you want to make a challenge, you must act swiftly and promptly after the original approval.
Zoning decisions made by a city council may be challenged in court. This can be done by bringing a legal action called a preliminary injunction or petition for declaratory relief. Which method is best will depend on the facts and circumstances of each case. If you would like to discuss your ability to challenge a recent zoning decision, contact our office today for a free legal consultation.
WHAT IS THE LIKELIHOOD OF SUCCESS
Once a decision has been made by a local city council to approve a zoning change, a challenge can be hard to make, although if done properly it can be won. Generally, the city council is afforded great discretion and you must establish the council acted “arbitrarily and capriciously” in changing the zoning or enacting the ordinance.
However, another way to challenge a zoning change is to prove the city council or the planning and zoning commission did not properly follow their own policies and procedures. You would be surprised at the number of procedures which must be followed before a zoning change can be enacted. And, if a city government wants to push a project through quickly, they will often run afoul their own rules. If they break their own rules, then you have a stronger challenge and greater chance for likelihood of success.
Where do I find the rules which each city council must abide by? The answer is this depends again on the jurisdiction. Each jurisdiction has their own unique rules and regulations. However, many jurisdictions now have what is known as a Uniform Development Code. We recommend this is the first place you start to look. Be careful though, these Uniform Development Codes are often lengthy and can be tricky to navigate without legal counsel.
For example, many Uniform Development Codes will require certain studies be conducted and certain data be obtained before a zoning change is made. Examples of such may include requiring certified engineering plans for any proposed project be submitted along with a other impact studies detailing how the project will affect drainage and traffic in the area. It is also a good idea when assessing a zoning change to look to whether the city has a proposed master plan for development. Although a master plan is not binding, it carries great weight in the assessment of a proposed zoning change.
WHAT IS THE LAW ON CHALLENGING A ZONING DECISION
Louisiana law is clear, when a city enacts an ordinance in violation of its own policies and procedures, the ordinance is null and void. See, Kirk v. Town of Westlake, 421 So. 2d 473, 475 (La. App. 3 Cir. 1982)(a zoning ordinance is null and void where the proper procedures for its adoption are not followed); Thomas v. Janzen, 35,288 (La. App. 2 Cir. 10/31/01), 800 So. 2d 81, 91 (planning ordinances null and void for failure to follow proper procedure).
A presumption exists in law that an ordinance adopted by a legislative body in the exercise of its police power is valid. It is, on the other hand, equally true that zoning laws are in derogation of the rights of private ownership. As a result, courts “consistently require strict compliance with the statutory procedures regulating enactment of zoning laws.” “Failure to comply with such procedural restrictions, accordingly, is fatal to the validity of the zoning ordinance.”
“Zoning is designed to foster improvements by confining certain classes of buildings and uses to certain localities without imposing undue hardship on property owners.” The essence of zoning “is territorial division in keeping with the character of the lands and structures and their peculiar suitability for particular uses, and the uniformity of use within the division.” “The traditional purpose of zoning is to reduce or eliminate the adverse effects of one type of land use on another by segregating different uses into different zoning districts.”
“Municipal authority to enact zoning regulations is derived from the police power of the governmental authority; it is legislative in nature and the adoption of such an ordinance is a legislative matter.” The property each owner holds is subject to “valid exercise of police power.” “[T]he exercise of police power in zoning cannot be made without substantial relation to the health, safety and general welfare of the public.” A challenge to a zoning decision in Louisiana is a de novo proceeding in which the issue is whether the action taken by the legislative body is arbitrary and capricious, and therefore a taking of property without due process of law.
The terms “arbitrary and capricious” when used in a zoning matter mean “willful and unreasoning action, without consideration and in disregard of the facts and circumstances of the case.” “Whether an ordinance bears the requisite relationship to the health, safety and welfare of the public is a factual question which must be determined from the evidence in the record.”
HOW TO HIRE A ZONING LAWYER
If you are dealing with a legal issue relating to zoning in the state of Louisiana, Jason Williams + Associates is here to help. We have successfully fought zoning changes, and also obtained zoning changes on behalf of our many clients. We offer free initial consultations to anyone with a legal question relating to zoning, call us today or reach us online.