| Advisory Opinion request from Paul D. Escott, Assistant City Parish Attorney for Lafayette Consolidated Government, regarding Act 340 of 2021 Regular Session and changes to R.S. 42:1123(34). |
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CITY COMMISSION:
The Lafayette Consolidated Government ("LCG") Home Rule Charter, Section 4-10, provides for the existence of the Lafayette City Planning & Zoning Commission ("City Commission"), which oversees the provisions of the Lafayette Development Code in the corporate limits of the City of Lafayette. The City Commission is comprised of five members who are appointed by the Lafayette City Council for five year terms. The Lafayette Development Code, Article 4, Division 4 provides regulations for the subdivision process, which means the division of a lot, tract, or parcel of land into two or more lots for the purpose of sale or building development. The Development Code also provides regulations for the resubdivision process, which means the consolidation of two or more lots, tracts, or parcels of land into one lot. All applications for subdivision or resubdivision are submitted initially to the Lafayette Community Development & Planning Department. Once the applications are reviewed, they are referred to the City Commission for approval. Appeals from decisions of the City Commission are to the Lafayette City Council.
PARISH COMMISSION:
The Lafayette Consolidated Government ("LCG") Home Rule Charter, Section 4-10, provides for the existence of the Lafayette Parish Planning & Zoning Commission ("Parish Commission"), which oversees the provisions of the Lafayette Development Code in that portion of Lafayette Parish outside the corporate limits of the City of Lafayette. The Parish Commission is comprised of five members who are appointed by the Lafayette Parish Council for five year terms. The Lafayette Development Code, Article 4, Division 4 provides regulations for the subdivision process, which means the division of a lot, tract, or parcel of land into two or more lots for the purpose of sale or building development. The Development Code also provides regulations for the resubdivision process, which means the consolidation of two or more lots, tracts, or parcels of land into one lot. All applications for subdivision or resubdivision are submitted initially to the Lafayette Community Development & Planning Department. Once the applications are reviewed, they are referred to the Parish Commission for approval. Appeals from decisions of the Parish Commission are to the Lafayette Parish Council.
BOARD OF ZONING ADJUSTMENT:
Pursuant to their authority in Section 7-07 of the Lafayette Consolidated Government ("LCG") Home Rule Charter, the Lafayette City Council and the Lafayette Parish Council issued Joint Ordinance No. JO-043-2020, reorganizing the existing Board of Zoning Adjustment, which is comprised of five members and two alternate members. The Lafayette Mayor-Parish President appoints one member, while the Lafayette City Council appoints four members and the two alternates. The Board of Zoning Adjustment has the power to hear and decide variances to the Comprehensive Zoning Ordinances pursuant to Article 4 of the Lafayette Development Code. All applications for variances are submitted initially to the Lafayette Community Development & Planning Department. Once the applications are reviewed, they are referred to the Board of Zoning Adjustment for hearing and decision. The Board of Zoning Adjustment also has the power to hear appeals regarding rezoning application decisions.
Applications involving the subdivision or resubdivision of property are submitted to the Lafayette Community Development & Planning Department. Once the applications are reviewed, they are referred to the Lafayette City Planning & Zoning Commission ("City Commission"), if the property is located in the City of Lafayette, or to the Lafayette Parish Planning & Zoning Commission ("Parish Commission"), if the property is located outside of the City of Lafayette.The Board of Zoning Adjustment has no authority or jurisdiction over the subdivision or resubdivision applications. However, in the event the applicant wishes to request a variance in connection with a pending subdivision or resubdivision application, the variance application would be under the authority of the Board of Zoning Adjustment.
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Mr. Escott seeks an advisory opinion regarding three different boards or commissions within Lafayette Consolidated Government. There is a proposed advisory opinion for each board or commission.
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La. R.S. 42:1113B: Other than a legislator, no appointed member of any board or commission, member of his immediate family, or legal entity in which he has a substantial economic interest shall bid on or enter into or be in any way interested in any contract, subcontract, or other transaction which is under the supervision or jurisdiction of the agency of such appointed member.
La. R.S. 42:1123(34): This part shall not preclude:
A member of a municipal or parish governing authority, an appointed member of a planning or zoning or appeals board or commission of a parish or municipality, or a member of such public servant's immediate family or a legal entity in which any such person has an interest from making application for the approval of the subdivision or resubdivision of property and for the zoning of such property or for a building permit and any inspections performed pursuant thereto, provided that all of the following:
(a) The zoning of such subdivided property shall not be less restrictive than the zoning of the original parcel.
(b) The subdivision, resubdivision, or zoning of such property shall be for residential purposes only.
(c) The application or applications submitted by or on behalf of the public servant, a member of his immediate family, or legal entity, collectively, shall be limited to the subdivision, resubdivision, or zoning of not more than twelve lots per calendar year and the construction of not more than twelve residential units per calendar year.
(d) No public funds shall be used to construct any infrastructure for the use or benefit of such property or development.
(e) The public servant shall file written notice containing all details regarding the transaction deemed necessary by the Board of Ethics with his governing authority or board or commission and with the Board of Ethics no later than ten days prior to any hearing pertaining to any such application, or if no hearing is held pertaining to such application, shall file such notice at least ten days prior to final action on any such application.
(f) The public servant shall recuse himself from any vote related to such application and shall not participate in any other aspect of the application or transaction.
La. R.S. 42:1112:
A. No public servant, except as provided in R.S. 42:1120, shall participate in a transaction in which he has a personal substantial economic interest of which he may be reasonably expected to know involving the governmental entity.
B. No public servant, except as provided in R.S. 42:1120, shall participate in a transaction involving the governmental entity in which, to his actual knowledge, any of the following persons has a substantial economic interest:
(1) Any member of his immediate family.
(2) Any person in which he has a substantial economic interest of which he may reasonably be expected to know.
(3) Any person of which he is an officer, director, trustee, partner, or employee.
(4) Any person with whom he is negotiating or has an arrangement concerning prospective employment.
(5) Any person who is a party to an existing contract with such public servant, or with any legal entity in which the public servant exercises control or owns an interest in excess of twenty-five percent, or who owes any thing of economic value to such public servant, or to any legal entity in which the public servant exercises control or owns an interest in excess of twenty-five percent, and who by reason thereof is in a position to affect directly the economic interests of such public servant.
D. No appointed member of any board or commission, except as otherwise provided in R.S. 42:1120.4, shall participate or be interested in any transaction involving the agency when a violation of this Part would result.
La. R.S. 42:1120.4:
A. If any appointed member of a board or commission in the discharge of a duty or responsibility of his office or position, would be required to vote on a matter which vote would be a violation of R.S. 42:1112, he shall recuse himself from voting.
B. An appointed member of a board or commission who recuses himself from voting pursuant to this Section shall be prohibited from participating in discussion and debate concerning the matter.
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Adopt the proposed advisory opinions.
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| Assigned Attorney: |
David Bordelon |
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