East First Street and M & B Rentals of America, L.L.C. VS Board of Adjustments and City of Thibodaux
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 CA 0664 EAST FIRST STREET L L C AND M B RENTALS OF AMERICA L L c VERSUS BOARD OF ADJUSTMENTS AND CITY OF THIBODAUX Judgment rendcred On Appeal from the f 2008 IN 17th Judicial District Court Parish of Lafourche State of Louisiana Civil Number 101760 Division 4t Thc Honorablc Walter I Lanier III C Judge Prcsiding Woody Falgoust Rachael Bollinger Carothers Counsel for Plaintiffs Appellants East First Street L L C and M Thibodaux LA Rentals of America L L C Clayton Counsel for Defendants Appellces E Lovell City of Thibodaux and Board Adjustments of the City of Houma LA of Thibodaux David W Ardoin Counsel for Intervcnor Appellee Thibodaux LA Guy Diebold Cathcrine Diebold David Middleton Francine Middleton Chester Boudreaux Annc Boudreaux and Mary Duplantis Rusty J Savoie Counsel for Intcrvenor Appellee New Orleans LA Cornel Martin and Cynthia Graham Martin BEFORE CARTER C J KUHN AND DOWNING JJ B DOWNING J M and B Rentals of America LLC East First Street LLC Cynthia Graham Martin their Applicants appeal a judgment denying petition for writ of mandamus and damages effectively denying their requests to rezone five East lying between contiguous of batture tracts Council For the acres Thibodaux Planning and Zoning Board did not recommend The district requests 2 8 in rezoning and the Thibodaux City Council rezonmg approximately Bayou Lafourche Street and First The Thibodaux Louisiana the the and Cornel following denied the affirmed the decisions of the court reasons City Council affirm the we City judgment of the district court PERTINENT FACTS AND PROCEDURAL HISTORY The only to Applicants sought commercial C I rezoned R I residential commercial as to certain property from R I only in 1979 Prior the rezoning to that the property property was commercial property because the zoning ordinance bore two to continue its zoned continue to grandfather s conforming allowed was clause The five uses tracts addresses 711 East First Street and 629 East First Street 711 East First Street First Street allowed was was allowed After the to to Plarming Applicants rezoning operate mandamus and for In a related matter and unpublished traditional a 629 East previously 675 table failed to recommend the deny the rezoning to petition for writ of certiorari for damages in the district 2d So filling station City Council voted court I considered East First Street See East First Street L Lc 949 a Zoning Board and after the this court has request for variances as continue in various commercial activities requests the applicants filed 2 9 07 non residential The property had been C I with restrictions or After the 1979 allowed the property I rezone v Board or writ denied 07 1047 2 After LLCs Adjustments La 8 31 7 a trial appeal writ of over three or the denial of its 06 0067 La 962 So 2d 440 App 1 CiL days the district the denied the petition for mandamus and for damages at cost Applicants The court Applicants The district now appeal raising two assignments of error erred in finding that the City Council was not arbitrary and capricious in refusing to rezone a residential only zone over long established commercial buildings to an appropriate I court commercial The district 2 designation and court failed to even address the Applicants claim that City of Thibodaux s arbitrary enforcement of its zoning regulations constitutes a taking of the Applicants property the DISCUSSION Denial In their first court erred in capriciously assignment of error the Applicants to failing in of Rezoning Application refusing find that the the to rezone assert that the district City Council acted arbitrarily subject property as requested and We disagree A lS challenge to a zoning decision is whether the result of the capnclOUs 10 20 98 See has no a relationship municipality 659 664 La 1974 capricious as the The Id action in which the issue lack thereof is Com arbitrary 97 1873 n Applicants have 97 1873 Inc v at p 16 15 p the burden 719 or terms arbitrary and So 2d City of Baton Rouge 309 So 2d explained the terms arbitrary and capricious action when used in marmer On the other hand when action is not arbitrary or facts and circumstances of the there is room capricious for when two case opinions honestly exercised 3 of at 419 like the instant one must mean willful and unreasoning action absent consideration and in disregard of the a La general follows The and rezoning decision public health safety morals court King novo of the evidence that the to Quoting Four States Realty Co or Parish 419 preponderance substantial welfare of the Caddo v So 2d 410 719 establishing by King legislation de a and upon due consideration it may be believed that conclusion has been reached even 97 1873 at p King though 719 So 2d at 418 14 consider whether the district whether the calculated So 2d at erred zoning decision was arbitrary capricious prejudicial or 418 lack of discretion Eyen where decision supports a lack thereof will be trial A court of manifestly court governing body decision the s Inc See Palermo Land Co but findings to 14 15 at pp support a 719 zoning resulting legislation or supported by evidence adduced if the result is upheld not confected with any or 97 1873 Id does appeal in its competent evidence no an erroneous Planning Com v at of Calcasicu n Parish 561 So 2d 482 491 92 La 1990 Based not err in on the record before a we conclude that the district concluding that the Applicants failed of evidence that the in us willful and unreasoning manner Council and the chairman of the among others neighborhood and the precedent permitted Zoning of the City Board testified as to These rezomng surrounding city compliance more and with the disregard area zoning reasons the included good of the master plan spot conforming rather than less conforming respect for the work of the PI arming and Zoning Board the for other commercial residential uses preponderance Five members case Planning the character of the zoning the potential for commercial a without consideration of or in voting against the for reasons by did City Council acted arbitrarily and capriciously that is for the facts and circumstances of the their to prove court rezoning requests in changing residential property property zones uses on the maintaining giving special the batture integrity treatment to and the 4 the of commercial two tracts at to and issue other appropriateness of the zoning They also considered the Applicants that the sale of alcohol testimony was anticipated The legal definition the singled that the R I zone Zoning Board to of spot City Council would be health rezoning is the We consider how out for different or for They baseless to the denying welfare only way were The rezoning bore fundamental But inappropriate court lack of discretion as at pp considering people could the we on evidence that City district court did a preponderance bore no Council not err have considered some inquiry is not in actions concluding relationship to Applicants first to show were by a arbitrary that the It is in good apparent that subject property should be court did not err in preponderance of the and capricious Applicants failed the public health The to prove by rezoning request safety morals assignment of error is without merit 5 decisions prejudicial or welfare The s City Council acted of the evidence that the denial of their substantial our City Council conclude that the district s a 14 15 719 So 2d at 418 whether the concluding that the Applicants failed that argue of zoning law rezoning of the subject property reasonably differ Accordingly Council based its explained above Our review of the record shows that the faith in Plarming and City confected with any calculated King 97 1873 argue reasonable relation tenets may erred but whether the or for no They further speculation improper Applicants further argue that the satisfy the arbitrary capricious rezoned say it is applications for rezoning owners treatment the not meet is unreasonable and that the Chairman of the whether the district were two we cannot recognize that the City Council that matters to residents on proposed rezoning did Even if true zoning s reasons safety decision argue that the Applicants or genera also considered the that the testimony Applicants sale of alcohol was anticipated The argue that the Applicants Even if true legal definition of spot zoning the City Council singled would be that the R I to health decision consider how out for different s reasons safety rezoning is the only We were The King as or above could reasonably differ we on whether the a City Council did not err or s actions to show were It is not prejudicial apparent that subject property conclude that the district concluding that the Applicants failed court inquiry is City Council acted in good people district our some 97 1873 at pp 14 15 719 So 2d at 418 considering the rezoning of the subject property evidence that a City Council s decisions faith in Accordingly argue that of zoning law confected with any calculated Our review of the record shows that the rezoned reasonable relation City Council based its tenets explained erred but whether the arbitrary capricious lack of discretion But argue Planning and City Council may have considered that the court no They further speculation improper for Applicants further argue that the satisfy the fundamental inappropriate whether the district were treatment it is applications for rezoning two owners They baseless way to recognize that matters cannot say denying the rezoning bore for welfare or residents on we the not meet is unreasonable and that the Chairman of the zone Zoning Board to did proposed rezoning court did should be not err in preponderance of the arbitrary and capricious The Applicants failed to by in concluding that the by a prove preponderance of the evidence that the denial of their rezoning request bore no substantial relationship to the public health safety morals welfare The Applicants first assignment of error is without merit 5 or general Damagesfor Taking The City has fail court and that the property The 2465 2448 Court held that a state are it found that the to court constructive a question were Applicants destined loss to conform their us we damages Rhode Island v 2001 where the erred in ruling that barred regulations a 533 U S of title And claim takings created for themselves the 606 Supreme acquisition conclude that the district court erred we taking the record before on 150 L Ed 2d 592 supreme to Palazzolo entitled Palazzolo to after the effective date of the the damages because the to in properties Nonetheless setting Applicants point S Ct 121 pursuant entitled are Applicants would suffer financial fit the R I to found that the disagree that the Applicants 632 they destroyed the value of their land resulting in since the district to argue that Applicants the to extent hardship caused by zoning restriction The Palazzolo court the issue of whether petitioner permitted court obtained use futher a a explained that the central claim is takings ripe question for decision final decision from the Council for the land 533 U S Id at 618 in resolving is whether determining 121 S Ct the The at 2458 explained There exists establish a an important principle that a landowner may not authority has the taking before a land use opportunity using its own reasonable procedures to decide and explain the reach of a challenged regulation Under our ripeness regulation which is alleged to go too far in burdening property depends upon the landowner s first having followed reasonable and necessary steps to allow regulatory agencies to exercise their full discretion in considering development plans for the property including the opportunity to grant any variances or waivers allowed by law As a general rule until these ordinary rules a takings claim based on a law or processes have been followed the extent of the restriction property is 2 The not known and Applicants argue that the district However the judgment plainly denies a eOlut did their regulatory taking has not rule petition on their claim for for damages 6 not on yet been damages arising from a taking Government authorities established by imposition procedures in order to of course may not burden of repetitive or unfair land use property avoid final decision a Citations omitted Id 533 U S challenge to at the 620 21 S Ct 121 application of land at use 2459 Id We note that neither the district court 2463 the issue ripeness above that the the probably Applicants takings subject properties after Even so we note might affect when 10 19 04 due a 1995 claims enactment claim does not mature 533 U S the nor erroneous were barred of the zoning Const at 628 City a until 121 S Ct Council address belief as discussed by their acquisition of regulations In Avenal ripens v takings state State 03 3521 that La denied 544 U S 1049 125 S Ct 2305 161 the Louisiana supreme taking under Louisiana stated that differences between federal and 886 So 2d 1085 cert L Ed 2d 1090 their to court regulation ripeness requirements have been satisfied at The Art I 9 4 court discussed the concept of This provision provides in pertinent part as follows Every person has the right to acquire own control use enjoy protect and dispose of private property This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power A Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit Except as specifically authorized by Article VI Section B I 21 of this Constitution property shall not be taken or damaged by the state or its political subdivisions a for predominant use by to private person or entity or b for transfer of ownership any private person or entity Emphasis added any As Justice Weimer explained in his concurring opinion in 2185 concurring opinion p 7 886 So 2d using both words See also Costonis taken and Avenal v State A at 1Il3 La art Cons I encompasses damage damaged Road Map for Takings and Louisiana and Federal Constitutions 52 La 11 1 358 7 JMar feh 2005 Damagings Avenal 04 9 4 claims that Claims untler Ihe would not necessarily qualify Louisiana law damage a as a claim is under the Fifth Amendment Under taking compensable although it is not a taking Justice Weimer further explained In because the Louisiana Constitution provides for what is damaged sum or for property taken taken is a narrower concept in Louisiana when compensation considered contrasted with federal law of the to interpretation is broader Under Louisiana law the right is broad but the interpretation of taken is taken term compensation than in the federal narrower Under federal law sense Id Nonetheless in Lucas 112 S Ct 1029 observed that 2886 not 120 L Ed 2d 798 2900 landowner a deprivation is South Carolina Coastal Council 505 U S v ability s absolute The be accorded treatment must to court be newly legislated or s Palazzolo t he 533 U S right exercise of land use to at 627 state regulations are Ritchie Lucas compensation Supreme Court that the is upon land severe but must ownership In Supreme Court stated that subject to the The Louisiana supreme In Avenal widespread agreement some valid that bar any zoning reasonable 29 Harv Envtl L Rev 321 court has 03 3521 at p expressed 32 8 n 28 among the and land takings claim Rise of Background Unlikely Legacy The Catcgorical Takings Dcfcnscs this view so background principles of the course Further there is background principles s that regulations authority including the enforcement of valid zoning and restrictions members of the ie Any limitation at 2462 improve property of We believe similar of land already place 121 S Ct Court Supreme without use decreed law of property and nuisance the governmental economic explained inhere in the title itself in the restrictions that State for confiscatory regulations prohibit all economically beneficial cannot recover 1992 1003 use Blum and Principles 356 as 2005 views in accordance with 886 So 2d at 1107 n 28 the noted Lucas citing court if the leaseholders of all deprive of their property the coastal diversion economically beneficial and productive rights the plaintiffs the coastal diversion project was are a It further power under federal law still s not entitled to explained a state police not compensation is s owed of the background principle property law that already prohibit the landowner from the claims was power is undertaken in the exercise of the state use he police Id Z the oning or is at Nothing the zoning a malicious that is a defense or King 97 1873 at p issue has been in at in the record suggests that the done for principle Here 418 s legislative function the authority for which flows from a police power of governmental bodies So 2d was taken use compensation as valid exercise of the if the state action is in accordance with state project did entirely to recovery 719 place since 1979 zoning is somehow invalid improper purpose 14 As such it is a or that it background of damages under Louisiana s takings law We therefore find no merit in the Applicants second assignment of error DECREE We affirm the assessed against and Cornel and M judgment of the district court B Rentals of America Cynthia Graham Martin AFFIRMED 9 Costs of this appeal are LLC East First Street LLC
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