Opinion
2021 CA 1278
07-05-2022
COALITION FOR RESPONSIBLE ZONING, LLC, DONALD ALETTE, ANNE B. BROOKS, MARY F. BLYTHE, RONNIE AND RACHEL SPENCER & DWIGHT DOSKEY v. THE PARISH OF ST. TAMMANY AND ST. TAMMANY PARISH PRESIDENT
C. Randall Loewen Mandeville, Louisiana Dwight Doskey Covington, Louisiana Counsel for Petitioners-Appellants Coalition for Responsible Zoning, LLC, Donald Alette, Anne B. Brooks, Mary F. Blythe, Ronnie and Rachel Spencer & Dwight Doskey John R. Walker Thomas H. Huval Covington, Louisiana Counsel for Intervenor-Appellee All State Financial Company Warren LeDoux Montgomery District Attorney Covington, Louisiana Angel L. Byrum Alexandre L.M. Ducros Mandeville, Louisiana Counsel for Defendants-Appellees St. Tammany Parish Government, incorrectly named in the petition as St. Tammany Parish, and St. Tammany Parish President
NOT DESIGNATED FOR PUBLICATION
ON APPEAL FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT PARISH OF ST. TAMMANY, STATE OF LOUISIANA NUMBER 2020-10074, DIVISION I HONORABLE REGINALD T. BADEAUX, III, JUDGE
C. Randall Loewen
Mandeville, Louisiana
Dwight Doskey
Covington, Louisiana
Counsel for Petitioners-Appellants
Coalition for Responsible Zoning, LLC, Donald Alette, Anne B. Brooks, Mary F. Blythe, Ronnie and Rachel Spencer & Dwight Doskey
John R. Walker
Thomas H. Huval
Covington, Louisiana
Counsel for Intervenor-Appellee
All State Financial Company
Warren LeDoux Montgomery
District Attorney
Covington, Louisiana
Angel L. Byrum
Alexandre L.M. Ducros
Mandeville, Louisiana
Counsel for Defendants-Appellees
St. Tammany Parish Government, incorrectly named in the petition as St. Tammany Parish, and St. Tammany Parish President
BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.
CHUTZ, J.
Petitioners-Appellants, Coalition for Responsible Zoning, LLC (CFRZ) and several individuals owning immovable property and domiciled in St. Tammany Parish (collectively, petitioners), appeal a summary judgment dismissing their petition seeking judicial review of a zoning resolution. We affirm.
The individual petitioners were: Donald M. Alette; Anne B. Brooks; Mary F. Blythe; Ronnie Spencer; Rachel Spencer; and Dwight Doskey.
FACTS AND PROCEDURAL HISTORY
All State Financial Company (All State) executed a purchase agreement to sell a large tract of property located in Covington to Medline Industries for use as a distribution center. The purchase agreement obligated All State to obtain approval for rezoning the property from PBC-2 (Planned Business Campus-2) to AML(Advanced Manufacturing and Logistics District), which would permit the use of the property as a distribution center. In June 2019, All State submitted an application requesting rezoning of the property from PBC-2 to AML. The St. Tammany Parish Planning Department staff recommended approval of the request.
The uses permitted by PBC-2 zoning include: (1) high-rise office and residential buildings; (2) hotels, motels, and convention centers; (3) college, universities, and research centers; (4) public utility facilities; (5) parking lots and decks; (6) freestanding restaurants; and (7) mixed-use centers. St. Tammany Parish Code of Ordinances § 130-864.
Permitted uses under AML zoning include: (1) aeronautics and aerospace research, development and manufacturing; (2) automotive research, development and manufacturing; (3) computer, electrical, and electronics research, development and manufacturing; (4) data centers and data warehousing; (5) distribution and warehousing facilities; (6) durable goods manufacturing; (7) food products processing and manufacturing; (8) furniture manufacturing; (9) garment manufacturing; (10) glass, plastic, and paint research, development and manufacturing; (11) hydraulics and robotics research, development and manufacturing; (12) pharmaceutical and medical research, development and manufacturing; (13) software development and programming; (14) scientific research and development services; and (15) general offices and services which provide support to any of the permitted uses. St. Tammany Parish Code of Ordinances § 130-1621.
The St. Tammany Parish Zoning Commission (Zoning Commission) took up the rezoning request at its October 9, 2019 meeting. After hearing speakers both pro and con, the Zoning Commission voted five to three in favor of approval, with two commissioners absent. The vote was insufficient to approve the rezoning request since an affirmative vote of a majority of all ten Zoning Commission members (a minimum of six affirmative votes) was necessary for approval. All State appealed the Zoning Commission's decision to the St. Tammany Parish Council (the Council).
Prior to and at the Council's November 7, 2019 meeting, various documents and letters supporting the rezoning request materials were provided for the Council's consideration by various parties. At the meeting, representatives for the supporting (All State) and opposing (CFRZ) sides of the rezoning request were each given equal periods of time to present their argument, rebuttal, and concluding remarks. During its presentation, All State verbally amended its rezoning request to reduce the area to be rezoned from 90 acres to 69.46 acres. In addition to the presentations, individual council members extensively questioned representatives from both sides, including questions concerning traffic and drainage. Individuals who wished to address the Council on the rezoning issue were permitted to do so for three minutes, and many took advantage of the opportunity to voice their support of or opposition to the rezoning. In total, over two and one-half hours of the Council meeting were devoted to All State's rezoning request. At the conclusion of the Council's discussions, a motion to overrule the Zoning Commission's decision and to approve the rezoning request regarding the subject property was passed unanimously by the Council.
At the Council's December 5, 2019 meeting, Ordinance Calendar Series No. 6284 (the Zoning Ordinance), rezoning the property at issue from PBC-2 to AML, came up for consideration. Speakers on both sides of the issue were again heard by the Council, with discussion lasting for approximately one hour. Thereafter, the Council adopted the Zoning Ordinance by a vote often to two, thereby changing the zoning on the subject property from PBC-2 to AML and officially amending the St. Tammany Parish zoning map to incorporate the zoning reclassification of the property.
Upon adoption, Ordinance Calendar Series No. 6284 became Ordinance Council Series No. 19-4202.
On January 6, 2020, petitioners filed a petition for judicial review seeking a judgment declaring the Zoning Ordinance 6284 invalid and permanently enjoining its enforcement. Petitioners alleged the Council abused its discretion and acted arbitrarily and capriciously in adopting the Zoning Ordinance. The St. Tammany Parish Government and the St. Tammany Parish President were named as defendants.
While the petition is captioned as a "PETITION FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTION," petitioners acknowledge it is substantively a petition for judicial review. Moreover, because Louisiana is a fact-pleading state, courts look beyond the caption of a pleadings to ascertain its substance and do substantial justice. Matter of Cole, 19-0938 (La.App. 1st Cir. 12/27/19), 293 So.3d 1163, 1169. writ denied, 20-00184 (La. 3/9/20), 307 So.3d 1029.
All State intervened in the action alleging it had an interest in the matter as the owner of the property at issue. Subsequently, All State filed a motion for summary judgment seeking dismissal of petitioners' claims on the basis that petitioners could not establish the absence of a rational basis for the Council's rezoning decision.Following a hearing, the district court granted All State's motion for summary judgment and dismissed the petitioners' action in its entirety. Petitioners now appeal.
In addition to seeking the dismissal of petitioners' claims, All State also sought dismissal of the claims of numerous intervenors who adopted petitioners' claims for relief in four separate interventions. None of the intervenors are parties to the instant appeal.
SUMMARY JUDGMENT
A motion for summary judgment shall be granted only if the motion, memorandum, and supporting documents admitted for purposes of the motion for summary judgment show there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3) & (4). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria governing the district court's determination of whether summary judgment is appropriate. Alvarado v. Lodge at the Bluffs, L.L.C., 16-0624 (La.App. 1st Cir. 3/29/17), 217 So.3d 429, 432, writ denied, 17-0697 (La. 6/16/17), 219 So.3d 340. The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the matter before the court on the motion, the mover's burden does not require that all essential elements of the adverse party's claim, action, or defense be negated. Instead, the mover must point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. La. C.C.P. art. 966(D)(1). Thereafter, if the adverse party fails to produce factual evidence sufficient to establish the existence of a genuine issue of material fact, the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(D)(1); Alvarado, 217 So.3d at 432 .
APPLICABLE LAW
The authority to enact zoning regulations flows from the police power of governmental bodies. City of Baton Rouge/Parish of East Baton Rouge v. Myers, 13-2011 (La. 5/7/14), 145 So.3d 320, 327. Zoning decisions are a legislative function granted to local governing bodies by statutory and constitutional authority for "the purpose of promoting health, safety, morals, or the general welfare of the community." Palermo Land Company, Inc. v. Planning Commission of Calcasieu Parish, 561 So.2d 482, 491, 494 (La. 1990); see also La. Const. Art. VI, § 17. It is well-established in Louisiana that a presumption of validity attaches to all zoning ordinances. The burden of overcoming the presumption of validity rests upon the party challenging the zoning decision. Id., 561 So.2d at 491. Moreover, the burden of proving the invalidity of a rezoning is extraordinary. Id., 561 So.2d at 490.
In Palermo, the Louisiana Supreme Court stated:
It is not necessary, for the validity of the ordinance in question, that we should deem the ordinance justified by considerations of public health, safety, comfort, or the general welfare. It is sufficient that the municipal council could reasonably have had such considerations in mind. If such considerations could have justified the ordinances, we must assume that they did justify them.
It is not the province of the courts to take issue with the council. We have nothing to do with the question of the wisdom or good policy of municipal ordinances. If they are not satisfying to a majority of the citizens, their recourse is to the ballot-not the courts.Id., 561 So.2d at 491, citing State ex rel. Civello v. City of New
Orleans,
154 La. 271, 282, 97 So. 440, 443-44 (1923). (Emphasis added.)A challenge to a legislative body's zoning decision is a de novo proceeding in the district court. Id., 591 So.2d at 492. The issue is whether the zoning decision is arbitrary and capricious. Where it appears appropriate and well-founded concerns for the public could have been the motivation for the zoning decision, the decision will be upheld. Whenever the propriety of a zoning decision is debatable, it will be upheld. Id., 591 So.2d at 492-93. It is only when a zoning decision is found to be palpably unreasonable, arbitrary, an abuse of discretion, or an unreasonable exercise of police power that the decision will be disturbed. City of Baton Rouge/Parish of East Baton Rouge, 145 So.3d at 327-28; see also La. R.S. 33:4721.
DISCUSSION
Petitioners argue the district court erred in granting summary judgment dismissing their petition because: petitioners presented reasons justifying a denial of the rezoning request; the Council failed to address traffic and drainage issues as required by law; the rezoning was "spot" zoning for the benefit of a specific landowner; and the Council improperly considered the proposed use of deed restrictions in making its zoning decision.
All State argued it was entitled to summary judgment because CFRZ could not sustain its burden at trial of proving the Council lacked a rational basis for its rezoning decision related to the health, safety, or general welfare of the public. In support of its motion, All State presented the affidavit of Terrence J. Hand, the administrator of the St. Tammany Parish Council. Mr. Hand deposed that he was familiar with the records created, received, and/or maintained in the ordinary course of the Council's business, as well as the presentations made to the Council regarding the Zoning Ordinance. He certified that the attached exhibits were true and correct copies of the documents created, received, and/or maintained by the Council in the ordinary course of business in connection with the rezoning request, as well as the digital recordings made in the ordinary course of business of the Council's November 7 and December 5 meetings.
Petitioners also argue the district court improperly weighed the inadmissible evidence presented by All State against the admissible evidence it presented. CFRZ objected to the exhibits attached to Hand's affidavit, arguing the district court erred in considering these exhibits because they constituted uncertified and/or unverified hearsay evidence inadmissible in court. This objection lacks merit. Proceedings before the Council are not subject to the rules of evidence applicable to court proceedings, including the hearsay rule. Thus, there is no requirement that documents considered by the Council be certified or verified. How, when, and where governing authorities gain knowledge of zoning matters is of no concern to the courts. Meyers v. City of Baton Rouge, 185 So.2d 278, 283 (La.App. 1st Cir. 1966). In his affidavit, Mr. Hand did not certify the accuracy or correctness of the documents submitted for the Council's consideration in this matter. As administrator of the Council, he merely certified the attached exhibits were documents created, received, and/or maintained in the ordinary course of the Council's business with respect to the zoning matter at issue. See La. C.E. art. 803(6) & (8) (providing exceptions to the hearsay rule for records of regularly conducted business activity and public records).
In addition to letters and emails received by the Council from various business organizations in support of the rezoning request, the documents submitted to the Council included a traffic analysis by an engineering firm, which concluded the proposed distribution center would generate less traffic than if the property was developed as a large-scale office space in a campus-type setting under the then-existing PBC-2 zoning. Before voting on the rezoning request, the Council heard and received much information and opinions, pro and con, at two public meetings from multiple sources concerning the effects of the requested zoning change, including its effect on traffic and drainage. There was also discussion regarding the substantial economic impact the proposed Medline project was expected to have on St. Tammany Parish, including new jobs and an increase in sales taxes. All State presented testimony that the Medline project would generate approximately $18 million in taxes to St. Tammany Parish and $14 million in new payroll in the parish. Additionally, a Medline representative informed the Council the subject property was the only site in St. Tammany Parish suitable for its distribution center, with all other sites under consideration being located outside of St. Tammany Parish.
In opposition to All State's motion for summary judgment, CFRZ presented the affidavit of Ms. Debra C. Hebert. A review of the affidavit reveals that rather than being statements of fact, the majority of Ms. Hebert's statements are argumentative, expressions of opinion, conclusory in nature, and/or assertions that the Council failed to follow the law in making its zoning decision. All State objected to the affidavit in its reply memorandum, arguing the affidavit stated no basis for Ms. Hebert's alleged first-hand knowledge of the facts stated. We agree. Affidavits offered in support or in opposition to a motion for summary judgment should be made on personal knowledge and should affirmatively show the affiant is competent to testify to the matters stated therein. La. C.C.P. art. 967(A); Mapp Construction, LLC v. Southgate Penthouses, LLC, 09-0850 (La.App. 1st Cir. 10/23/09), 29 So.3d 548, 563-64, writ denied, 09-2743 (La. 2/26/10), 28 So.3d 275.
All State further objected to the fact that the affidavit was not notarized. However, CFRZ subsequently filed a notarized copy of the affidavit, explaining the affidavit had been notarized but it had inadvertently attached an unnotarized copy of the affidavit to its opposition memorandum.
In this case, despite Ms. Hebert's assertion that her affidavit is based on personal knowledge, the affidavit merely states she is a resident of St. Tammany Parish. The affidavit fails to affirmatively show who she is, her connection to the litigation, or the basis of her alleged personal knowledge of the facts asserted therein. For instance, Ms. Hebert made statements in the affidavit that some council members are believed to have assisted All State in preparing its presentation to the council but she failed to disclose how she had personal knowledge of the facts asserted. The same is true with respect to all other statements of fact made in the Hebert affidavit ~ no basis for the affiant's personal knowledge is shown. Such an affidavit is insufficient to create a genuine issue of fact. See Veuleman v. Mustang Homes, LLC, 12-377 (La.App. 3d Cir. 11/7/12), 2012 WL 5417074, at *5 (unpublished).
CFRZ further argues the Council failed to consider the issues of traffic and drainage before making its zoning decision as it was required to do. In support of this argument, petitioners cite La. R.S. 33:4723, which states, in part:
The regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the public streets, secure safety from fire, promote health and the general welfare, provide adequate light and air, avoid undue concentration of population, and facilitate adequate transportation, water supply, sewerage, schools, parks, and other public requirements.
At the Council's November 7 public meeting, some council members made statements to the effect that traffic and drainage issues were matters to be handled at the planning stage when permits were applied for rather than at the zoning stage. Accordingly, CFRZ argues the Council ignored the statutory considerations of traffic and drainage set forth in La. R.S. 33:4723, rendering the process leading to the adoption of the Zoning Ordinance fatally flawed.
Initially, we note that while La. R.S. 33:4723 generally indicates the issue of traffic congestion should be a consideration in zoning regulations, it does not delineate how or in what matter traffic issues are to be considered by the governing authority or require that traffic studies or surveys be conducted before a zoning decision is made. The Council spent considerable time at the two public meetings where the rezoning issue was addressed listening to and engaging in discussion, pro and con, regarding traffic and drainage issues. A number of council members asked questions directly related to traffic and drainage issues. One council member even stated at the November 7 meeting that traffic and drainage issues were the two main issues he was "grappling with." Thus, despite the statements made by some council members that traffic and drainage were matters for the planning stage, given the extensive time the Council spent listening to and asking questions about traffic and drainage issues, there is no genuine issue of material fact that the Council addressed traffic and drainage issues, at least to some extent, in making its decision to rezone the subject property. The fact that some council members indicated traffic and drainage were issues to be addressed in detail at the planning stage does not alter this fact.
Additionally, based on discussion concerning deed restrictions at the November 7 council meeting, CFRZ argues the Council improperly relied on the possible use of deed restrictions in making its zoning decision. At the November 7 council meeting, there was discussion and several questions raised by council members concerning the possibility of the property owner including deed restrictions in the sale documents to limit certain uses of the property (otherwise permitted by AML zoning) regarding which members of the public had expressed concerns. The Council's legal advisor twice informed the Council it should not consider the possibility of deed restrictions in making its zoning decision. CFRZ presented no evidence the Council, in contravention of the advice of its legal counsel, based its zoning decision on the possible use of deed restrictions rather than on rational considerations related to the general welfare of the public, such as jobs and economic development in the community.
If it appears appropriate and well-founded concerns for the public's health, safety, and general welfare could have been the motivation for a zoning decision, the decision will be upheld. Palermo, 561 So.2d at 492. In this case, it appears the Council placed great weight on economic considerations in making its zoning decision. While the priority the Council may have given to economic issues, perhaps over issues of traffic and drainage, might be debatable, a reviewing court will not substitute its own judgment for that of the governing authority. Id. The statutory restriction placed upon governing officials when enacting zoning ordinances is that the ordinance be for the purpose of promoting health, safety, morals, or the general welfare of the community. La. 33:4721; Id., 561 So.2d at 494. Moreover, to uphold the validity of zoning ordinances, it is sufficient if the governing authority could reasonably have had considerations of public health, safety, and the general welfare in mind. Moreover, it is undeniable that economic considerations, including a boost in tax revenues and the creation of job opportunities, are matters related to the general welfare of the public. Where considerations of public health, safety, and the general welfare could have justified a zoning ordinance, a reviewing court must assume they did justify the ordinance. Id., 561 So.2d at 491, quoting, State ex rel Civello, 97 So. at 444. In the instant case, CFRZ has presented no evidence to overcome the presumption of the Zoning Ordinance's validity by showing it lacked a rational basis connected to the public health, safety, or general welfare of the public, and is thus arbitrary, capricious, and unreasonable. Therefore, the district court did not err in granting All State's motion for summary judgment.
CFRZ argues the rezoning of the property at issue should be subject to heightened scrutiny because it constitutes highly suspect "spot zoning." "Spot zoning" is the singling out of a small parcel of land for a use classification that is different from that of the surrounding area, usually for the benefit of the owner of that parcel, or for the benefit of the owner of some other property, and to the detriment of other owners. Palermo Land Company, Inc., 561 So.2d at 489-90. The Palermo court indicated spot and piecemeal zoning is suspect in nature and may be subject to heightened scrutiny. Nevertheless, the Palermo court further stated the same presumption of validity and the same test applicable to other zoning decisions also applies to spot and piecemeal zonings. To meet the extraordinary burden of overcoming the presumption of validity attached to a rezoning ordinance, the opponent thereof must show the ordinance has no real or substantial relationship to the general welfare of the public. See Id., 561 at 490. CFRZ failed to present sufficient evidence to raise a genuine issue of material fact regarding the validity of the Zoning Ordinance regardless of whether the Zoning Ordinance constituted spot zoning.
CONCLUSION
The summary judgment rendered by the district court dismissing all claims in this matter is affirmed. Petitioners are to pay all costs of this appeal.
AFFIRMED.