Bob Welch and Daniel Hoover VS East Baton Rouge Parish Metropolitan Council

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NOT DESIGNATED FOR PUBLICATION STATE 0= QUISI. N CC iJRT QF A PF 4L FTRST CIR JI N0. 2012 CA 14 40 BOB WELCH & DANIEL HOOVER VERSUS EAST BATON ROUGE PARISH MEfROPOLITAN COUNCIL Judgment rendered 2 j Appealed from the 19th Judicial District Court in and for the Parish of East Baton Rouge Parish, Louisiana Trial Court No. 563,619 A 11 ¢ Honorable Wilson Fields, Judge ALEXIS A. ST. AMANT, II ATTORNEY FOR BATON ROUGE, LA PLAYNTIFFS- APPELLANTS BOB WELCH & DANIEL HOOVER LEA ANNE BATSON ATTORNEY FOR BATON ROUGE, LA DEFENDANT-APPELLEE EAST BATON ROUGE PARISH METROPOLlTAN COUNCIL ATTORNEY FOR CHARLES W. BELSOM, JR. DEFENDANT-APPELLEE BATON ROUGE, LA JAMES CALDWELL IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL BRIAN L. MCCULLOUGH ATTORNEY FOR BATON ROUGE, LA INTERVENOR- APPELLEE 2590 ASSOCIATES, L. L. C. BEFORE: wl,. J. CtM c,,... KUHN, PE7TIGREW, AND MCDONALD, JJ. a.., Dt. C-µ n U RP cQ. a u+ c PETTIGREW, ]. More than five years ago, the plainciffs instituted this litigation, seeking a declaratory judgment that East Baton Rcuge ParFSh ity Ord nar ce 4280 ( the ordinance) is invalid. That ordinance, adopted by the EBR Metrapofitan Council on January 23, 2008, amended the Master Land Use and Devefopment Plan applicable to the plaintiffs' property, and rezoned the surrounding 119 acres from A- 1 residential to " traditional neighborhood development° ( TND), allowing for the development of what is commonly known and as " two Rouzan." prior The matter has already been oefore this court on a supervisory writ devolutive appeals ( that will be discussed later herein). It is now before us on appeal of the final judgment rendered in the matter, pursuant to which all of the plaintiffs' claims were dismissed. The plaintiffs have appealed. FACTS AND PROCEDURAL HISTORY At the time of her death on October 24, 2003, Mary Bordelon Ford owned approximately 124 acres at the corner of Perkins Road and Glasgow Avenue in Baton Rouge, Louisiana. All of the land was zoned " A- 1 Single Family residential." In her will, she bequeathed to each plaintiff, Bob Welch and Daniel Hoover, a remunerative donation of a tract of land together with a house and, further, bequeathed to plaintiffs jointly a third tract of land with a barn situated on it. The total area of the three tracts of land bequeathed to the plaintiffs was slightfy mar than 5 acres, and the tracts were situated the boundaries of the within emaining 119 acres of tracts were so situated, Mrs. Ford also bequeathe 1rs. ord's property. Because the to plaentiffs a private access servitude to Glasgow Avenue, which crossed a portion' of the 119 acres and provided access to plaintiffs' property. Mrs. Ford' s succession subsequently soid the remaining 119 acres to a developer named plans 2590 Associates, LLC (" 2590 Associates'°) for a development named " Rouzan," managed by Joseph T. Spinosa. With which would consist of a combination of commercial, single family residential, and multifamily residential units, the developer applied to the East Baton Rouge Parish Metropolitan Council (" Council") to amend the Master Land Use and Development Plan to permit a use change from " Low Density 2 Residential" to " Planned Unit Developraent" and ta 7ezone from " A- 1 Single Family Residential" to a ' Traditional Following which rezoned a" a hearing Neighborhoc d Devei4p on ] an ary Z, the property as a Tti an; ; 20Q, h n e* ne° TND"). t'° {" the C uncil ado ted the ordinance, ie ermitted Uae of the 119 acres to Janu, y 3C), 2008, piaintiffs filed a petition Planned Unit Development.° Th rea t, for declaratory judgment against thr C: uncii, craaia a ging tne ardinance and alleging that the Council' s actions were in violation of the Unifieci Development Code (" UDC") and an abuse of discretion. 2590 Associates intervened as the property owner. Plaintiffs base their challenge of the rezoning ordinance on three alleged violations of the UDC, each of which they claim adverseiy affect their rights. The first alleged violation of the UDC relates to Section 8.218C( 3)( ba of the UDC, which requires that all residents shall be within approximately 1/ 4 mile distance from existing or proposed commercial, civic, and open space areas. Plaintiffs alleged that the conceptual plan for Rouzan provides that all of the commercial development be on the edge of the TND on Perkins Road rather than mixed throughout the development, and that the distance between many of the residences and the commercial, civic, and open spaces is well in e ccess of 1/ 4 mile. The second alleged violation pertains to Sectior 8. 218H, the UDC requirement that prior to the approval of the conceptuai plan, 259 , ssociates was required to request and attend a pre- application conference and provide a statement indicating it has financial responsibility sufficient to comp[ete the public improvements shown on the conceptual plan. Plaintiffs contend that no such financial statement was provided by 2590 Associates at a pre- application conference. The third alleged violation concerns Section 8. 218F of the UDC, relating to the control of the land within the TND, Plaintiffs raote thaY they own and reside on property completely surrounded by, and included within the boundaries of, Rouzan and that they have the benefit of one or more seroitudes of passage over a portian of the Rouzan development that provides access to their property to and from Glasgow Avenue. Thus, 3 plaintiffs maintain that 2590 Assoc'sates c nnot r eet t! e UDC requirement that it have complete, unified, and legal centroi f aii lan incfud¢ in the TIND. In September 2008, plaintiffs fi.fed a mcatiar for summary judgment on the first two violations, vuhich was denied bu the trea9 cc urt in a judgn ent signed Qn December 10, An application to this cour by plaintiffs far supervisory writs was subsequently 2008. denied. ( On appeal, the plaintiffs now re- urge their challenge to that interlocutory ruling, denying their motion for summary judgment and refusing to invalidate the ordinance on the first two aileged UDC violations.l) On January 21, 2010, plaintiffs filed a supplemental petition for declaratory judgment. According to this supplemental petition, after adopting Ordinance 14280, the Council filed several amendments to the UDC, with the intent and effect of rendering valid the prior alleged invalidities. Plaintiffs allege that these amendments are " unconstitutional as they violate the substantive due process clauses of the Louisiana and United States Constitutions in their application to this lawsuit to the e ent they seek to divest plaintifFs of their rights acquired prior to the amendments.° Thereafter, on February 2, 2010, 2590 Assaciates filed its own motion for partial summary judgment on the first two violations, arguing that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. The matter was scheduled for hearing; but before the hearing on its motion, 2590 Associates filed an exception to plaintiffs' supplemental petition raising the objection of no cause of action. 2590 Associates alleged that plaintiffs failed to plead, with sufFcient specificity, a vafid constitutional claim and cannot identify a conststutionally protected liberty or prope ty interest sufFicient to support a s bstantire due process claim. The denial of a motion for summary judgment, in whole or in part is an interlocutory judgment that is not appealable. Ascension School Employees Credit Union v. Provost Salter Harper & Alford, L. L.C., 2006-0992, p. 2 ( La. App. 1 Cir. 3/ 23/ 07), 960 So. 2d 939, 940; La. Code Civ. P. arts. 968 and 2083( C}. However, when an unrestricted appeal os taken from a final judgment, the appellants are entitled to seek review of all adverse interlocutory judgments prejudicial to them, in addition to the review of the final judgment. Price v. Kids World, 2008- 1815, p. 3 ( La. App. 1 Cir. 3/ 27/ 09), 9 So. 3d 992, 994. 4 2590 Associates' motion for partial summary judgment proceeded to hearing on March 29, 2010. follows: behalf of ' This The minute entry from the hearing provides, in pertinent part, as matter came an for hearing Motion for Summary Judgment filed on on intervenors, the 2590 Assaciates. .. The matter was argued by counsel, documentary evidence was introduced and the m tfer was submitted to the Court." After considering the evidence, the court granted the motion, designating same as a final judgment. The trial court signed a judgment on April 15, 2010, decreeing as follows: Plaintiffs' claims that the actions of the ... Council in adopting Ordinance 14280 approving the [ TND] violated the [ UDC] because ( a) each residence was not within 1/ 4 mile of each and every commercial, civic, and open space, and ( b) a statement of financial responsibility was not submitted at the pre-application conference are DISMISSED WITH PRE] UDICE. It is further ORDERED, AD] UDGED AND DECREED that there is no just reason for delaying any appeal of this matter because the legal interpretation of the [ UDC] is determinative of the rights of the parties to this matter. Therefore, this Court's Judgment granting 2590 Associates and the ... Council' s summary judgment is now designated a Final Judgment pursuant to La. [ Code Civ. P.] art. 1915( B). Plaintiffs subsequently requested that the trial court provide written findings of fact and reasons for judgment, but none were provided. PlaintifFs appealed, challenging the trial court's December 10, 2008 judgment, denying their motion for partial summary judgment, and the April 15, 2010 judgment, granting the motion for partial summary judgment in favor of 2590 Associates and the CounciL In Welch v. East Baton Rouge Parish Metropolitan Council, 2010- 1531 ( La. App. 1 Cir. 3/ 25/ il),64 So. 3d 244, this court dismissed the appeal, finding the trial court abused its discretion in certifying the partial summary judgment as final for purposes of appeal, finding that to allow an immediate appeal of that judgment, under the circumstances of the case, would only serve to encourage multiple appeals and piecemeal litigation that cause delay and judicial inefficiency. Id.,at p. 7, 64 So. 3d at 249. In the meantime, 2590 Associates filed a second motion for summary judgment as to plaintiffs' sole remaining claim, arguing that it was entitled to judgment as a matter of law because the land plaintiffs claimed to own was not within the boundaries of the TND. In an attempt to complete discovery prior to the hearing on this motion for summary 5' judgment, and within the disGOVer} dea lid es set tay ti e court, plaintifFs notified 2590 Associates and the Council that #h y w: i m d to t. i e he- depnsdti director of Associates. t e Pia r Accordin ing C G,ta£#, rnrnissiJr to the tl, re:; c rd, 5 of Troy Bunch, c w p6 T. Spi;°esa; r as r r of 2590 s s : E esi i i v as r. dz 9e, far arid taken h u' on the morning of ApriV 23, 20iC3, 25 30 Ass l F s° k' ed t make Jr. Spinosa available for deposition without a subpoena. P, sua c ra f r lr. pinosa was subsequently issued, and, in response, 2590 Associates filed a multitude of motions including a motion to stay discovery and upset scheduling until after a ruling on the motion for summary judgment had been made. It also filed a motion to quash the subpoena. Plaintiffs countered with a motion to compel discovery and a motion to continue# he motion for summary judgment, arguing that they could not effectively oppose the. motion for summary judgmerat without the testimony of Mr. Spinosa. Plaintiffs argued that Mr. Spinosa had knowledge of and could identify documents to support their contention that the property they owned was made a part of the TND. According to the re ord, plaintiffs' motion to compel discovery and to continue the motion for summary judgrrient was summarily cSenied bq the triai court on May 17, 2010, without a hearing. The motion for summary judgm nt, as well as the motion to stay discov ry and upset scheduling and motion to quash, were heard by the trial court n May 17, 2010. The May 17, 2010 counsel minute and submitted Summary entry provides to the Court. as follows: ' The rnatters were argued by Whereuoon, the Court granted` the Motion for Judgment rendering the remaining motions moot." The trial court signed a judgment on May 27, 2010, grantinc summary judgment and dismissing pla ntiffs` suit with prejudice. The plaintiffs appealed that judgmen. In Welch v. East Baton Rouge Parish Metropolitan Council, 2010- 1532 ( La, App. 1 Cir. 3/ 25/ 11), 64 So, 3d 249, n khe same date the other appeal w s dismissed, this court reversed the judgment .of the trial court granting 2590 Associates` summary judgment, and remanded the matker for furth r uceeciBngs, finding ±hat the trial court erred in considering ti e summary judgment wFthout first setting the exception of no cause of action for hearing, and also, without first ruling on the plaintiffs' allegations that 6 the amendments to the UDC are Thi tl. s ur censt' tutio court alsc agreed with the plaintiffs that there vere still ger uir e issues of material fa t as to hether the plaintiffs' property is within, the boundaries of t e TN F and l o, that without being allowed to take Mr. Spinosa`s testimony, plaintiffs uvere i inder d : n demonstrating 2590 Associates' intentions to include thei property sr k E° fv a: s c or th trial ccaurt erred in proceeding and ruling on the summary jud rnent nec tion wut aut first ompelling tn deposition of Mre 5pinosa, this Gourt remanded the matter , Mr. Spinosa' s testimony as weli as for a hearing t the trial court for the taking of address the plaintiffs' constitutional challenge to the UDC and the defendants' 2xcepti n of no cause of action othe plaintiffs' supplemental petition for decla atory judgment. On remand, a hearing was held on August 29; 2011, on 2590 Associates' exception of no cause of action as to the plaintiffs' sup ier enkal petition for declaratory judgment; and by judgment signed September 21, 2011 the exception was granted, and plaintiffs' supplemental petition, raising the unconstit tionaiity of the amendments to the UDC, was dismissed with prejudice. On January 6, 2012, 2590 Associates fied aroother motion for summary judgment seeking dismissai of the plaRntiffs° remaining !' laim - that the ordinance is invalid because the plaintiffs' property is surrau ded by but nat :ricluded in the TdVD. Z Plaintbffs aiso filed another motion fqr summary judg» t, March 1;, on Q12,, again sser dng the same three bases upon which they r aim the ordlnance es invaBid, Both m tions were hea d on April 23, 2012, and by judgra ent signeci i iay 1, 20i2 the trial court granted 2590 Associakes' and the Council' s motions for su rima y udyrnent, denied trie plaintlffs` motoon for summary judgmentr and dismissed t e plain koffs' suit with p'rejudice, It is from this final judgment in this matter that the pfairatiffs appea. Z The record reveals that the defendant, East Bato! Rouge Parish Metropolitan Councif, filed a motion for summary judgment on April 16, 2012, specifically joining in the rraotion for summary judgment fiVed 6y 2590 Associates, and adopting its motion and memorantlum in support as its own. 7 AS IGNVN9E 1° fS In addition interlocutory aud motion to the judgment ments; c i' the D c:ernb for su mmary judgmenc gr those same two and 8 sdgrrrE t, v nich d nied the plaintiffs' 9n n; the y as c ¬ violaxion5 0 ` s' . o_ bi C, tri t6 e pla'snkitfis alsQ appeal the foflowing Y, 1", 2 r nt April 15, 2010 judgmernt thafi vioiations; r th: ore L Nfay , F ERROR ation fior summ ry j dgment on e o° 1, 2Q 1 judgment, granting 259G 5eptember Associates' exception of na cause of actio_ regard" r a the, plaintiffs' supplemental petition. Thus, the following assignments of error, and a!i related issues, are now before this court: 1. The trial court erred in finding there were no genuine issues of material fact in 2590 Associates' April 23, 2012 motion for summary judgment and that 2590 Associates are entitled to judgment as a matter of law; 2. The trial court erred in not finding thak pf,aintr'ffs were entitled to summary judgment as a matter of law; 3. The trial court erred in failing to grant the plaintiffs' September 19, 2008 motion for partial summary judgment; 4. The trial court erred in granting 2596` Associates' April 15 2010 motion for summary judgment; and 5. The trial court erred in granting the excep ian .of no cause of action to th plaintiffs' supplemental petitiari. ISSUES PRE EI ITED The foregoing assignments ofi rr r plac before his court ssentially a i of the issues raised to- date in khis litigation: 1. Whether the TN1R pian violates a ia i atcoy° prouisicsn f tn iJ C khat requo es ail residents to be within / a mile asstar ce csf xistA' sg ar pro?asea1 ce mr erciai, civic, and open space areas, 2. Whether the TND plan violates a rnandaio provisior? of tne UDC that eq ires the developer to provide a statement i ad cati rg it Ihas the finaneial responsibility sufficient to completE the public improvement shown on the conc ptuai plan; 3. Whether the TND plan violates a mandatory provision of the UDC that requires the d veloper to have complete ownership an c nfiroi over al! the p operly within the boundaries of khe TND; 4. Whether 2590 Associates has the cam lete owr ership and control of:all property within the boundaries of theTND; ar d 5. Whether the amendments to the UDC p sse ey the EBRP Metro Council intended to annul the violation of the 5ia rnil requireiment bf the TND pfan are unconstitutional as applied tQ the righ±s acc 6red by the plaintiffs, APPLICABLE LAW/ DISCUSSIOfV[ ANALYSIS Summary Judgment An appellate courrt reviews a kria court's decision to grant a moti n for summary judgment de novof using the same criteria tnat overn the trial court°s consideration of 8 whether summary judgment es appr pria, Smith v. Our Lady of the Lake Hosp., Inc., 93- 2512 ( La. 7/ 5/ 44), 639 So. 2rJ 730,; 750, The motion should be granted only if the pleadings, depositions, answerG 'to interr gatoeies; and adrrussions an file, together with any affidavits, show that there is no er Jirce issu as to materia! fact a!nd that the mover is entitled to judgment as a matter of faw. L A- C. C. P. art: 966( B)( 2); George S. May Int'I Co. v. Arrowpoint Capital Corp., 2011- 1865 ( La. App. 1 Cir. 8/ 10/ 12), 97 So. 3d 1167, 117L Because it is the applicable s;.ibstantive law that determines materiality, whether a particular fact in dispute is material, for purposes of summary judgment, can be seen only in the light of the substantive law applicable to the case. Gaspard v. Graves, 05- 1042 ( La. App. 1 Cir. 3/ 29 06), 934 So. 2d 158, 160y writs denied, 06-0882 and 06- 0958 ( La. 6/ 16/ 06), 929 So. 2d L286 and 1289. The burden of proof remains vith the movan't. Ho ever, if the movant will not bear the burden of proof at trial on the matter Chat ps before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's cfaim; action, or defense, but rather to point out to the court that there is an absence of factual suppor for one or more elements essential to the adverse party' s claim, action, or defense. Thereafter, if the adverse party fails to produce factuai support sufficient tq establish that he will be able to satisfy his evidentiary burden of proaf at trial, here is no genuine issue of material fact. LSA- C. C. P. art. 966( C)( 2). A summary judgrnent may be rendered dispositive af a particular issue, theory of recovery, cause of aeti9n; cr defense, ln favor of one or more parties, e4en though the granting of the suiremary judgment does nat dispos of the entire case; however, a summaCy j.udgment sha l be rendered or affirmed only as to those issues setforth in the motion under consideretion by the courk at that time. LSAC. C. P. art, 966, 9 . Issues Three and Four3 The issue before the trial court in the motions for summary judgment decided by the May 1, 2012 judgment concerned Section 8: 218( F of the UDCf requiring that the owner of the TND have complete ownership and control of all the property within the boundaries of the TND, which we must resolve in fight qf the plaintiffs' allegation that this requirement was not met. In pertinent part, Section 8: 218( F) of the UDC provides that "[ a] II land included in any TND District shall be under the complete, unified and legal control of the applicant." ( Emphasis added.) That provision also provides that upon request of the Parish, the applicant " shall furnish the Parish sufficient evidence to the satisfaction of the Parish that the applicant is in the complete, legal and unified control of the entire area of the proposed" TND, For the following reasons, we find the trial court erred in finding 2590 Associates met the requirement that it have the complete, unified, and legal control of all land included in the Rouzan development. Are Lots A, B, and C Included in the TND District? The evidence in the record conclusively establishes that the five acres bequeathed to the plaintiffs in Mrs. Ford' s will were located in the middle of the 124 acres that comprised her property. Those five acres were divided into three lots, that sit in the middle of the surrounding 119 acres that were subsequently sold to 2590 Associates' predecessor and became the TND Rouzan. 2590 Associates claims that, although completely surrounded by the TND district, the plaintiffs' five acres are not included within the property reioned as the TND districC, and therefore, the ordinance is valid in compliance with the UDC requirement. They support this claim with the testimony of Troy .Bunch, the director of the staff of the planning commission, that in his opinion, the plaintiffs' five acres are not part of the TND and were not rezoned TND; therefore, the requirement does not apply to those lots. The plaintiffs contend that 3 We first address issues three and four as they form the bases upon which we find the trial court erred in finding no violation had occurred and because they were the issues before the tour[ on the finai motion for summary judgment that was granted and led to this appeal. 10 Mr. Bunch' s opiriion b iies t ie evscier iar, pro+f , rovic e showing the within the bc a genuine whether IotsF ncat rez albeit, undaroes vf issue l; the TfvD e istr of snaterial their lots are ne tact r c rrz le ly surrounded t y and are included c: r, ny ve xf the pfdintiffs r airitasn here is peeciudi included by a rnap of the property, se w6thin the TN rnar° ; udyment ara the f cta.9 f ssue of s ¬ ch that the UDC requirement is applicable thereta After reviewing the documentary evidence in the record, we agree with the plaintiffs that their three lots are " included within the TND district,° such that the UDC requirements are applicable. Furthermore, for , the following reasons, we find the existent servitude of passage prevents 2590 Associates from having the complete, unified, and legal control necessary for compliance with the UDC. Servitude of Passage The remunerative donationsJeft to the plapntiffs through Mrs. Ford' s last will and testament included approximatefy five acres, loeated in the middle.of the 124 acres she owned, and was divided into three ots. L t A was left to Bob Nfefch and included her home. Lot B was left to Daniel Hoover and included a home. Lot C, which included a bam, was left jointly to the plaintiffs. Those three lots had no direct aecess to a public road, and Mrs. Ford' s will provided that the remainder of the property surrounding the five acres be left to other legatees. Thus, in connection with making those leg cies, Mrs. Ford had a survey and map made dedicatin a servitude of passage, The map was prepared, attached to, and made a part of th w il, That map contains xhe following handwritten notation at the bottam left and was siyned and dated by Mrs. Ford; DEDICATION: The ' 30` Private Access Servetude" shosvn hereon is hereby dedicated as a private rneans of access to Tracts A, B, & planted, nor C. shall Nc trees, shrubs, or plants may be any buifdings, fences or other improvements be constructed within or ov r said servitude so as to prevent or unreasonably intertere with the purpose for which the servitude is granted. The City- Parish has no respora ib?liky far the maintenance of this servitude. The servitude of passage provided access to Lots A, B, and C to and from GEasgow Avenue. Part of this servitude of passage was located on Lots A, B, and C; and part of the servitude of passage was locate perty or pr exact location and dimensions of the servitud map.) surrounding L. ots A, B, and C. ( The of passage was provided for on the The servitude was a pare? k ar d onsist d, n part, of kwo gates kwo bridges, and a grave! road. Shortiy sold the death Qf Mrs. - ar, after their interest in the property ec 59Q c c., t s.:' As f the surrou ding property ifi e tt a2 The piainti fs contend that all land included in the TND District is n t within the compiete, unified, and iegal <:ontroi f the 259Q Associates becaus applicant the . servitude of passage crosse5 2590 Because the ser itude is _a burden on the Rouzan property, Associates' property. plaintiffs maintain that it prevents 259Q AssociatQS from having the full ownersnip and control of all of the property included in the TND. Piaintiffs also contend that because their property is within the boundaries of the .deveiopment, the UDC required their consent to the zoning -- and that requirement was violated, as the plaintiffs never consented. Based on the following reasons and appiicable statutes, we agree with the plaintiffs. Applicable Law A predial servitude is a charge an a servient estate for the be efit estate, which La. C. C. art. the benefit of 6 6. Ir this the right of matter, passag L. ts , f a dominant B, ana C are the dominanX estates, Eor s gr nted. The servie t estate consists f whici ever 259Q Assoeiates- owned propert es ar subject t the ight of passage by th owners of Lots A, B, and C. ( See La. C. C. a t. 724 providing thaY a predial servitude may be established on several estate5 for the be efit of one estate.j The owner of tf e servient estate is not required to do anyfF ing. lis abligation is to abstain from doing something on his estate or to permit something to be done on it. He may be required by convention or by law to keep his estate in suitable condition for the exercise of the servitude due to the dominant estate. La. C. C. art. 651. Also, pursuant to La: C.C. art. 4 In the purchase agreemeni, the legatees are identdfied oy tne entity formed to sefl khe p operty, Belie Meade Ranch, L. L. C., and the buyer is JTS Realty Services, , represented by Joseph T, Soinosa; as maneger 12 L. C. predecessor to 2 90 Assocoates), 706, the right of passage hereiw is an owners of the dominant statesr tne ffr oat9u rir. rt s rv tude, givi g the plaintiffs, as kea a., e* a n thinys on certain Rouzan property, Camprisir.g the seryi+ t 2s t Pred Natural servit Ces, alsc, servitucies arwse imposed act, ai by law; prescription, and or from rr mak the - f } ture voluntary or eonver iioi destination of 9, a d vol s trary r±:; catl, the estates; iecal servotudes are tsili c r c r+ ntAOnal. u ¬ iv tudes are established by juridica a C. C. La. own, inasmuch as the servitude of passage was " dee7icated" art: 654, In this matter, y way of Mrs, Ford`s last will and testament, a, juridical act, it is a conventional servitude; although a rignt of passage may also be a iegal servitude. See La. C.C, art, 589: jThe owner of an estate that has no access to a public road enay claim a right of passage. over n ighboring property to the nearest pubfic road.) Given that the servitude of passage ir fhis is conventionalF the use and att e ent of such servitudes are regcilated by the t0e by wrhich they were created ( s. e., Mrs. Ford' s will and dedicaEion), and in the abse ce vf sueh regulation, oy he foll vring code a?ticles. La. C. C. art. 697. Pursuant to La. C. C. art. 7Q5, addres# i y th flnventioruai rccjht of passaye, the servitude of passage is the right for Ehe beneffit of the domo! ant estate wnereby persons, animals, utilities, or vehicles are permitt d to pass through' the servient estate. Unless the title provides otherwise, the extent af th rwg it and the r ode of ts exercise shall be suitable for the kind of trafFic or utiiity riecessary for the re s nabVe use fthe dominant estate. Pursuant to La. C. C. a fi. 74$, nothing tending t a diminish ar make mor he wner of the se vient estaYe may da in onvenier,t the use of tFre servitude, If th original location has become more burdensome fpr tne ewner of tihe servient estate, or f it prevents him from making usefui ir prevements n his state; he ay provide another equally convenient location f r *.?e exe cise of the servitude ;rvhich the oivner i the dominant estate is bound to a cept. How ver; all expenses of reiocation are borne by the owner of the servient estate. 13 Discussion/ Analysis Based on the foregoing, it is indisputabVe hat 259Q Associates does not have the complete, unified, and iegal controi of afl land included n th TND district, as a portion of the land comprisgng the TEVD als a comprds s the sE rvient estate charged with the obligations and duties imposed on th seivi nt_ sta e over which a right of passage exists for the benefit of the plaintiffs. The owner of the servient estate' s obligation is to abstain from doing something on his estate or o permit something to be done on it. He may be required to keep his estate in suitable condition for the exercise of the servitude due to the dominant estate. Dupont v. Hebert, 2006- 2334 ( L, App. 1 Cir. 2/ 20/ 08), 984 So. 2d. 800, writ denied, 2008- 0640 ( La. S/ 9/ 08), 980 So. 2d 695. The statutory duties and obligations on 2590 Associates, as owner of the servient estate, impose legal limits and affirmative: duties on it as owner, forrti restraints on the free disposal and use of the property, and leave it as the owner with. less than the complete, unified, and legal control of the property. See Thibco Investments, L. L. C. v. Thibodeaux, 2012- 427 ( La. App. 3 Cir. ii/7/ 12); 202 Sc. 3d 1043. We also note that La. C. C. art. 708 provides that the establishment of a predial servitude by tit{e is an alienation of a part of the property to whieh th, laws governing e a/ienation ofimmouables appfy. Thus, the prediai servitude of passage at +ssue herein not only affects the lack of compiete contro! over those properties implicated by the servitude, but " ownership" issues are implicated as w ll, lending further suppo t o our finding that the section requiring tne owner ofi the T9UD' to have the cQmplete, unified and legal control of the property therein has not been met, and as such, renders the ordinance invafid. Thus, to this extent, no genuine issues ' of material ` fact remain; the UDC requirement that the applicant have the complete, unified, and legal control of all land included in the TND was clearly not met, and renders the ordinance invalid. Thus, the trial court erred as a matter of law in granting summary judgment in favar of 2590 Associates, LLC and East Baton Rouge Parish Metropolitan Council, and in denying the motion for summary judgment on the same isSue filed by the plaintiffs. 1 Having found the ordinance was vio ated in this regard, warranting declaratory judgment in favor of the plaintiffs, we pretermit as unnecessary the remaining issues raised by the plaintiffs. CONCLUSTON Accordingly, the judgment f May 1, 20i2, is hereby reversed; and we render a declaratory judgment in favor of Bob Welch and Daniel Hoover and against East Baton Rouge Parish Metropolitan Council and intervenor, 2590 Associates, LLC, finding that Ordinance 14280 is invalid as the UDC requirement that 2590 Associates have the complete confrol of all the land included in the TND has not been met. The judgment of April 15, 2010, is hereby vacated. The judgment of September 21, 2011, is hereby vacatede The matter is hereby remanded to the triaf court for furtFier proceedings consistent with our finding. The East Baton Rouge: Parish Metropolitan Council and, intervenor, 2590 Associates, LLC, shall bear all court costs of the trial court proceeding and the costs of this appeaL 7UDGMENT OF MAY 1, 2012, REVERSED AND RENDERED. APRIL 15, 2010, VACATED. ] UDGMENT OF JUDGMENT OF SEPTEMBER 21, 2011, VACATED. REMANDED. 15 BOB WELCH AND DANIEL HOOVER FIRST CIRCUIT COURT OF APPEAL VERSUS STATE OF LOUISIANA EAST BATON ROUGE PARISH NQ. 2012 CA 1440 METROPOLITAN COUNCIL CC, KUHN, J., concurring. The result of vacating the judgment is correct. The dismissal of the suit is inappropriate in this suit which' seeks declaratory relief.

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