Two Years and Counting: Land Use and Louisiana's Post-Katrina Recovery

• Author: John J. Costonis
• Position: Chancellor Emeritus and Professor of Law, LSU Law Center.
• Pages: 349-387

Page 349

Professor Costonis is pleased to acknowledge the financial support provided by the Louisiana Recovery Support Foundation on behalf of this study.

I Introduction

Louisiana has now passed the second anniversary of the Katrina-Rita onslaught, the most punishing natural disaster in the nation's history. The severity of the state's hurricane-driven losses has stimulated unprecedented receptivity to fresh ideas and fresh solutions for problems that the hurricanes mercilessly exposed, but did not create. This report addresses selected legal issues in the state's land use and coastal management system that will inevitably surface in any post-recovery scenario. The report's modest but essential goal is to identify why these issues are important, and what legal and structural challenges must be addressed to resolve them.¹

They derive from pre- and post-Katrina sources. The major pre-Katrina source is Louisiana's land use governance system, which is largely the same today as when its governing statutes were adopted some seventy years ago.² Excepting the latitude Page 350 enjoyed by Louisiana's home rule parishes and cities,³ Louisiana's current zoning and planning legislation is a child of the era of speakeasies, Huey Long, and Herbert Hoover.⁴ Unfortunately, this state of affairs is as much a consequence of Louisiana's ingrained antipathy to planning as it is a cause of the freeze.⁵ Absent a reversal of this posture, the path to land use reform will be difficult to navigate.

But dramatic post-Katrina developments signal that the state's policymakers now appreciate that planning conducted within the framework of a well-conceived system of land use law is one of the missing links in the state's recovery program. Driving these developments is the determination to encourage, if not demand a greater role for regional and state engagement in land use decisions Page 351 of multi-parish significance. This determination undergirds the formation of Louisiana's Coastal Protection and Restoration Authority (CPRA)⁶ and the Louisiana Recovery Authority (LRA),⁷authorship of the CPRA Master Plan⁸ and an LRA-affiliated Louisiana Speaks Regional Plan,⁹ levee board regionalization and consolidation,¹⁰ and, derivatively, the renewed interest and initiatives of the flood-impacted parishes and cities in upgrading their land use planning and governance practices.¹¹

Complementary, sharply contrasting models of regional planning undergird the CPRA and LRA legislation and master plans. The CPRA has been endowed with assets as impressive as those enjoyed by any of the nation's regional planning bodies: a defined territory, broad regulatory and restoration/flood protection powers, extensive funding, key state development and conservation agency representation on its governing board, and most important, unprecedented public support for its charge to integrate hurricane protection and coastal restoration in its planning, regulatory, and infrastructure location missions.¹²

The CPRA Plan describes its mission as comprehending one of "the largest public works programs our nation has ever undertaken,"¹³ and the project itself as one whose costs will run into the "tens of billions of dollars."¹⁴ "Aggressive state leadership and direction"¹⁵ is pledged, as is the commitment that the "full Page 352 police power of the state shall be exercised to meet immediate and compelling necessity."¹⁶

To accomplish its expanded mission, the CPRA will need these resources and at least two others. The first is to plug in a planning/land use law module as the third component of a flood protection/coastal conservation/planning law core. Without it, the CPRA's selection and location of flood protection and restoration projects and parish/municipal land use policies will likely undermine rather than support one another.¹⁷ The second is institutionalizing within the CPRA's leadership and staff structure the confidence and capability to address the difficult land use planning and legal issues that "aggressive state leadership and direction" will require.¹⁸

Through its Louisiana Speaks affiliate, the LRA has offered a model of state-to-local land use planning overseen by a revamped Office of State Planning endowed with powers to reinforce CPRA initiatives, to coordinate planning and capital facility endeavors, to provide technical planning assistance at the state, regional, and local governmental levels, and to implement the Louisiana Speaks Regional Plan.¹⁹ Implementation of these initiatives will take a different path than the one considered for the CPRA Plan because the LRA is expected to be sun-setting at the time the CPRA is ramping up.²⁰ Louisiana Speaks and its LRA adherents face the burden, therefore, of persuading the legislature to establish a new governmental custodian of the Louisiana Speaks Plan. The legislature's Concurrent Resolution calling for a task force to study the Plan's Office of State Planning proposal is a milestone in this effort.²¹

Many of Louisiana's coastal parishes and cities have likewise embraced dramatic planning initiatives, as the Louisiana Speaks Page 353 website details. Updating their land use powers will assist them in securing their goals. The Louisiana Speaks Plan, which is as much a compendium of current "best practices" in land use affairs as a physical development plan for South Louisiana, affords an excellent point of departure for state legislative consideration.

But the signs are not all positive. A throwback to the state's deep-rooted distrust of government and planning reappeared in a set of 2006 amendments to article I, section 4 of the Louisiana Constitution,²² which addresses the scope of permissible uncompensated public regulation (the "taking issue") and the conditions governing the state's use of its eminent domain power. The amendments seek to tame the United States' Supreme Court's approval in Kelo v. City of New London²³ of eminent-domain based economic development projects.

A reasonable interpretation of their purpose is to achieve the elimination of "economic development" as a public purpose supporting article I, section 4 expropriations, thereby bringing Louisiana in line with the position argued by Justice O'Connor in her Kelo dissent.²⁴ But the amendment's ambiguous language is open to interpretations that could cripple eminent domain's use on behalf of Louisiana's recovery.²⁵

Resolution of the land use powers and eminent domain questions will shape the legal and, quite likely, policy framework for Louisiana's post-Katrina land use system for years to come. Confirmation that they merit our attention appeared throughout my interviews with twenty-five public officials and civic leaders.²⁶

All agreed that the foremost issue now confronting the recovery effort is the establishment of a land use structure muscular enough to preserve and implement the outcomes envisaged by the CPRA and Louisiana Speaks Plans. Likewise, all were apprehensive that the marriage of pre-Katrina uncertainties Page 354 over the "taking issue" with the now unsettled status of eminent domain threatens the evolution of land use measures capable of meeting Louisiana's recovery needs.

II Regionalism in Land Use: Its Variants and its Challenges

A Realism About Regionalism

Strategies for reforming outdated land use legislation must begin with an understanding of how individuals and local governments behave, not how reformers would like them to behave. Richard Babcock, my zoning mentor of forty years ago, upset the reformers of his time on this score with his classical article, "Let's Stop Romancing Regionalism."²⁷ Dick's thesis-- that so long as legal and political power is anchored at the local and the state levels, regional values are unlikely to take root--is, I fear, as valid in Louisiana today as when Dick announced it.

Property owners are loathe to surrender freedom to use their property as they wish. Local governments jealously guard their land use powers from intrusion from above. Proposals to shift land use powers upwards, therefore, must confront both sources of resistance.

These objections explain the paucity of successful regional programs throughout the United States. But they seem to have an even sharper bite in Louisiana. The deep-seated libertarianism of many of the state's citizens--a throwback perhaps to a time in the South when the population was largely rural and wealth was founded predominantly in and from the land--abhors public restriction of private land use. The profound distrust with which many Louisianans regard government, the would-be author of these limitations,²⁸ intensifies this resistance.

In an economically stressed but land-rich and sparsely populated state eager to attract development, moreover, reluctance to impose demanding land use restrictions--whether local or regional--is not surprising. These factors probably help explain the rudimentary nature of rural Louisiana land use controls. They Page 355 certainly figure in the on-going eleventh-hour scramble of parishes in the St. Tammany to East Baton Rouge quadrant to armor themselves with master plans, zoning, and subdivision ordinances in the face of their sudden urbanization.

Louisiana's geographic and cultural fragmentation undoubtedly enters the picture as well. The state's general land...