Opinion
2016 CA 0694
07-19-2017
MARK DAVID FRENEAUX; MICHAEL MANNINO; AND, MICHAEL STEPHENS v. INEZ M. SHELTON, JR. IN HIS INDIVIDUAL CAPACITY, AS WELL AS HIS OFFICIAL CAPACITY AS THE MAYOR OF THE CITY OF CENTRAL; CHRISTOPHER SHANE EVANS IN HIS OFFICIAL CAPACITY AS COUNCILMAN FOR THE CITY OF CENTRAL; KIM FRALICK IN HER OFFICIAL CAPACITY AS COUNCIL WOMAN FOR THE CITY OF CENTRAL; JOHN VANCE IN HIS OFFICIAL CAPACITY AS COUNCILMAN FOR THE CITY OF CENTRAL; AND, WAYNE N. MESSINA IN HIS OFFICIAL CAPACITY AS COUNCILMAN FOR THE CITY OF CENTRAL
Seth M. Dornier Baton Rouge, LA and Winston W. Riddick Baton Rouge, LA Attorneys for Plaintiffs/Appellants Mark D. Freneaux, et al. Christopher L. Whittington Baton Rouge, LA and Alysson L. Mills Brent B. Barriere Jason W. Burge New Orleans, LA Attorneys for Intervenor/Appellee Shoe Creek, LLC Jennifer D. Sims Jude C. Bursavich Jacob E. Roussel Baton Rouge, LA and Mark A. Balkin Joseph C. Chautin, III Mandeville, LA Attorneys for Defendants/Appellees Inez M. Shelton, Jr. in his official Capacity as Mayor of City of Central, et al.
NOT DESIGNATED FOR PUBLICATION On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
No. C641442 Sec. 25 The Honorable Wilson E. Fields, Judge Presiding Seth M. Dornier
Baton Rouge, LA
and
Winston W. Riddick
Baton Rouge, LA Attorneys for Plaintiffs/Appellants
Mark D. Freneaux, et al. Christopher L. Whittington
Baton Rouge, LA
and
Alysson L. Mills
Brent B. Barriere
Jason W. Burge
New Orleans, LA Attorneys for Intervenor/Appellee
Shoe Creek, LLC Jennifer D. Sims
Jude C. Bursavich
Jacob E. Roussel
Baton Rouge, LA
and
Mark A. Balkin
Joseph C. Chautin, III
Mandeville, LA Attorneys for Defendants/Appellees
Inez M. Shelton, Jr. in his official
Capacity as Mayor of City of Central,
et al. BEFORE: MCDONALD, CRAIN, AND HOLDRIDGE, JJ. HOLDRIDGE, J.
Plaintiffs appeal from the trial court's dismissal of their suit for declaratory and injunctive relief as to a zoning ordinance. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
Plaintiffs, Mark D. Freneaux, Michael Mannino, and Michael Stephens as taxpayers of the City of Central ("Central"), filed a petition for declaratory and injunctive relief. Therein they challenged the enactment of City of Central Ordinance No. 2015-30 (the Ordinance), which authorized a conditional use permit and final site plan for Shoe Creek, LLC ("Shoe Creek"), to begin construction and development of a Traditional Neighborhood Development (TND). Named as defendants were Inez M. Shelton, Jr., in his individual capacity and in his capacity as the mayor of Central ("the Mayor"), and four Central City Council members in their official capacities: Christopher S. Evans, Kim Fralick, John Vance, and Wayne N. Messina.
Plaintiffs referred to Central City Ordinance TND-1-15 in their petition but this number is the case number for the Shoe Creek development; the actual ordinance is City of Central Ordinance No. 2015-30.
Plaintiffs alleged that the Ordinance violated Central's Comprehensive Zoning Ordinance and Comprehensive Development Code mainly because they asserted it authorized an upward deviation of 600% in the maximum allowable apartment units for the TND. Plaintiffs sought a judgment enjoining the enactment of the Ordinance and a declaration that it was invalid.
Plaintiffs also sought a declaration that a contract between the Mayor and a third party for the extension of a private road as an additional access was null and void. However, plaintiffs have not raised any issues related to this claim on appeal.
Shoe Creek filed a petition for intervention in the suit, praying for judgment in favor of defendants and seeking the dismissal of plaintiffs' action. The trial court denied plaintiffs' requested preliminary injunction. At the trial of the declaratory judgment and permanent injunction, the trial court granted a motion for involuntary dismissal urged by defendants and Shoe Creek, and dismissed plaintiffs' suit with prejudice. In oral reasons for judgment, the trial court found, in part, that plaintiffs had not introduced any new evidence or testimony and were only relying on the evidence and testimony from the preliminary injunction hearing; at the preliminary injunction hearing, the trial court found plaintiffs did not prove that the City Council abused its discretion in passing the Ordinance. The trial court indicated that plaintiffs had failed to meet the lesser burden of proof required for a preliminary injunction, and with only that same evidence, it could not meet the higher burden required for a permanent injunction. Plaintiffs then filed a motion for a new trial, which the trial court denied. From that judgment, plaintiffs appeal.
The issuance of a permanent injunction takes place only after a trial on the merits in which the burden of proof is a preponderance of the evidence, but a preliminary injunction may be issued on merely a prima facie showing by the plaintiff that he is entitled to relief. Rand v. City of New Orleans, 2014-2506 (La. 6/30/15), 173 So. 3d 1148, 1151.
We note that in plaintiffs' motion for appeal, they appeal the denial of their motion for new trial, rather than the judgment dismissing their suit. A judgment denying a motion for new trial is an interlocutory order and is normally not appealable. See La. Code Civ. P. art. 2083(C). However, when a motion for appeal refers by date to the judgment denying a motion for new trial, but the circumstances indicate that the appellants actually intended to appeal from the final judgment on the merits, the appeal should be maintained as being taken from the judgment on the merits. See Smith v. Hartford Accident & Indem. Co., 254 La. 341, 223 So.2d 826, 828-829 (1969); see also Byrd v. Pulmonary Care Specialists, Inc., 2016-0485 (La. App. 1 Cir. 12/22/16), 209 So.3d 192, 195. In this case, it is clear from the assignments of error that plaintiffs sought to appeal from the final judgment that dismissed their suit. Their mistake in listing the date of the wrong judgment in their motion for appeal is insufficient grounds for the dismissal of the appeal, particularly since appeals are favored and will be dismissed only when the grounds are free from doubt. See Byrd, 209 So.3d at 195.
On appeal, plaintiffs raise five assignments of error: the trial court erred in failing to declare the Ordinance facially invalid and enjoin its enforcement; the trial court erred in failing to declare that defendants acted arbitrarily, capriciously, unreasonably, or abused their discretion or authority in enacting the Ordinance; the trial court erred in failing to grant plaintiffs' request for a continuance of the trial; the trial court erred in denying plaintiffs' motion for a new trial; and the trial court's pretrial rulings resulted in a miscarriage of justice due to their cumulative effect.
DISCUSSION
We will first consider plaintiffs' assignment of error that the trial court erred in denying their motion for a continuance. In determining whether the trial court abused its discretion in denying the continuance, we will review the litigation history of this suit. Plaintiffs filed their petition by facsimile transmission on August 10, 2015, and then filed the original petition on August 11, 2015. Two days later, Shoe Creek filed its intervention and an opposition to plaintiffs' petition. On August 19, 2015, the trial court held an evidentiary hearing on plaintiffs' request for preliminary injunction at which 11 witnesses (including the five defendants) testified and documentary evidence was introduced. The trial court denied the preliminary injunction and set the trial on the permanent injunction for October 23, 2015, about two months later.
At the hearing on the preliminary injunction, the trial court heard exceptions of no right of action, mootness, and no cause of action filed by defendants. The trial court granted the exception of no cause of action in part as to plaintiffs' claims against the Mayor in his individual capacity and dismissed those claims with prejudice. The trial court denied the other exceptions. Defendants then answered the petition and the intervention on September 4, 2015.
On September 28, 2015, defendants filed a motion to compel discovery they had propounded on September 3, 2015, which remained unanswered. Two days later, defendants and Shoe Creek filed a motion for summary judgment seeking dismissal of the suit. Defendants requested expedited consideration, and the matters were set for hearing on October 19, 2015. On October 15, 2015, all parties filed their pretrial briefs, defendants and Shoe Creek filed a pretrial order, and plaintiffs filed a separate pretrial order. On October 19, 2015, plaintiffs requested a status conference before the hearing, after which the motions were not heard. On the same date, pursuant to the parties' joint motion and stipulation, the trial court ordered the consolidation of the trials on the permanent injunction and declaratory judgment and decreed that any documents, testimony, and other evidence from the preliminary injunction hearing would be admissible at the trial on the permanent injunction.
Previously, on October 15, 2015, plaintiffs filed a motion for partial voluntary dismissal of their damages claim; the judge signed the order dismissing plaintiffs' claims for damages on October 21, 2015.
Two days later, on October 21, 2015, plaintiffs filed a motion to appoint a private process server pursuant to La. C.C.P. art. 1293 to serve trial subpoenas on ten witnesses for their appearance at the trial scheduled for October 23, 2015. Defendants and Shoe Creek filed a motion in opposition alleging that the requirements for service of a subpoena by a private process server under La. C.C.P. art. 1355 were not adhered to since the motion for the private process server was filed too close to trial and there was no return attached stating that the sheriff failed or was unable to make service. The next day, the trial court denied plaintiffs' motion with the notation that La. C.C.P. art. 1355 was not followed.
On the day before trial, plaintiffs filed a motion to continue the trial because the trial court had denied their motion to have a private process server serve their subpoenas and they lacked any subpoenaed witnesses for trial. They also complained that because the petition for intervention had not been answered, issue was not joined and the trial could not commence. Moreover, according to plaintiffs' motion for a continuance, they received a copy of the transcript of the preliminary injunction hearing via email (instead of a certified copy) on October 21, 2015, despite their request for the transcript on September 18, 2015. They asserted that the matter was not procedurally ready for trial and that they were grievously prejudiced by the lack of witnesses and the lack of sufficient time to review the transcript of the preliminary injunction hearing.
Plaintiffs cited La. C.C.P. art. 1035, which states, "The answer in an incidental action shall be filed within the delay allowed by Article 1001, and shall be subject to all of the rules set forth in Articles 1001 and 1003 through 1006."
At the hearing on the motion for continuance set prior to the trial on October 23, 2015, the trial court initially stated that the motion for a continuance was filed at 4:24 p.m. the day before and that it was summarily denying the motion. However, upon plaintiffs' request, the trial court allowed plaintiffs the opportunity to argue the motion so that the court could reconsider its decision.
Plaintiffs claimed they did not receive service of process on the motion for summary judgment and motion to compel until the Thursday (October 15th) before the Monday (October 19th) hearing on those motions. The record shows a certificate of service on the motions bearing the filing dates; however, the trial court did not set the motions for hearing until October 8, 2015, so presumably it is the service of the rule to show cause to which plaintiffs were referring. After the motions were passed without being heard, plaintiffs filed the motion to appoint a private process server the day after the hearing in order to get their witnesses served before trial. According to plaintiffs' counsel, he "could not in good faith and in due diligence issue subpoenas to people while there was the pendency of a motion for summary judgment which could be dispositive of this matter and a motion to compel." He explained he was concerned that if the trial court granted the motion for summary judgment and dismissed the suit, the witnesses would not be needed.
The motion to compel was not heard before trial and defendants did not object.
The trial court asked plaintiffs' counsel why he failed to subpoena his witnesses if he opposed the hearing on the motion for summary judgment because it was not set for hearing ten days before trial and "the law [was] clear" on that issue. Plaintiffs' counsel answered that the trial court could have still granted the motion for summary judgment. The trial court commented that if it denied the motion, plaintiffs would need the witnesses, and if it granted the motion, then plaintiffs could have informed the witnesses that they were not needed. Plaintiffs' counsel responded that due to the setting of the motions four days before trial, he did not have a "window" in which he could subpoena the witnesses.
Louisiana Code of Civil Procedure article 966 was amended by 2015 La. Acts 422, § 1; however, the new version of article 966 does not apply to this case as the amendment did not become effective until January 1, 2016. The motion for summary judgment, memorandum in support thereof, and supporting affidavits were required to be served within the time limits set forth at the relevant time in District Court Rule 9.9. La. C.C.P. art. 966(B)(1). Rule 9.9(b) provided that the memorandum in support of the motion for summary judgment shall be served on all other parties so that so that it was received by the other parties at least 15 calendar days before the hearing. Judgment on the motion for summary judgment had to be rendered at least ten days before trial. La. C.C.P. art. 966(D).
Plaintiffs then reiterated the contentions raised in their motion for continuance, that they did not have subpoenaed witnesses for the trial, that issue had not been joined because they had not answered the petition for intervention, and that they did not get the 223-page transcript of the preliminary injunction hearing until October 21, 2015 by email despite their request for the transcript on September 18, 2015. According to plaintiffs, the transcript was critical so they did not present duplicative testimony because the preliminary injunction hearing was two months before the trial and so they could prepare questioning and possibly obtain rebuttal witnesses. Plaintiffs intended to introduce the transcript into evidence at the trial. Counsel for Shoe Creek and defendants each presented their objections to the continuance.
The trial court denied the motion for continuance, stating that plaintiffs brought any delays upon themselves. The trial court rejected the argument that witnesses could not be subpoenaed until the motion for summary judgment was decided. The trial court explained that after the status conference on October 19th when the motions were not heard, plaintiffs knew the trial was going forward and could have subpoenaed their witnesses then instead of waiting until two days before trial. Plaintiffs requested a stay of the proceedings so they could take writs on the ruling, but the trial court denied the request for a stay.
The trial court began the trial, whereupon plaintiffs submitted into evidence the entire suit record, including all exhibits offered into evidence at the hearing on the preliminary injunction and a copy of the transcript from that hearing. Plaintiffs then rested their case, and defendants and Shoe Creek moved for involuntary dismissal, which the trial court granted and dismissed the suit with prejudice. Plaintiffs filed a motion for new trial based mainly on the same arguments asserted in the motion for continuance; the trial court denied the motion for new trial.
In the pretrial order, plaintiffs listed 17 potential witnesses. The transcript of the preliminary injunction hearing included the testimony of ten of them--the five defendants and five of the witnesses whom plaintiff sought to subpoena via their motion to appoint a private process server. With their motion for a private process server, plaintiffs sought to subpoena five witnesses who had not testified at the preliminary injunction hearing, one of whom was not listed by plaintiffs on the pretrial order.
A trial court may grant a continuance on peremptory or discretionary grounds. La. C.C.P. arts. 1601, 1602. When peremptory grounds exist, a trial court must grant a continuance. There are only two such grounds: (1) a movant, despite due diligence, has been unable to obtain material evidence; and (2) a material witness is absent "without the contrivance of the party applying for the continuance." La. C.C.P. art. 1602. The movant bears the burden of proving that peremptory grounds for a continuance exist. Armand v. Delgado, 1999-2274 (La. App. 1 Cir. 11/3/00), 770 So.2d 896, 898. In this case, plaintiffs did not allege any peremptory grounds for a continuance.
Additionally, La. C.C.P. art. 1601 provides for a continuance "if there is good ground therefor." The trial court must consider the particular facts of a case when deciding whether to grant or deny a continuance. Armand, 770 So.2d at 898. Moreover, the trial court has great discretion in granting or denying a continuance under La. C.C.P. art. 1601, and its ruling should not be disturbed on appeal in the absence of a clear abuse of discretion. St. Tammany Parish Hosp. v. Burris, 2000-2639 (La. App. 1 Cir. 12/18/01), 804 So.2d 960, 963.
Among the factors a trial judge considers before granting a continuance are diligence, good faith, and reasonable grounds. Rainone v. Exxon Corp., 1993-2008 (La. App. 1 Cir. 1/13/95), 654 So.2d 707, 710, writ denied, 1995-0337 (La. 3/24/95), 655 So.2d 1340. Weighed against the possibility of injustice, unfairness and inequity, which might result from a premature trial, is the effect that a continuance might have on the administration of justice, including congested court dockets, and just as important, a defendant's corollary right to have serious charges against him judicially resolved within a reasonable time. Id.
In this case, in considering the trial court's denial of plaintiffs' motion to appoint a private process server, the trial court did not abuse its discretion in denying plaintiffs' motion because it did not comply with La. C.C.P. art. 1355. See Anderson v. Rabb, 484 So.2d 196, 199 (La. App. 1 Cir.), writ denied, 489 So.2d 248 (La. 1986). Plaintiffs could not avail themselves of La. C.C.P. art. 1293(B) to have a private process server appointed as requested in their motion because La. C.C.P. art. 1355 applies to subpoenas in ordinary proceedings, such as the permanent injunction and declaratory judgment involved in this appeal, whereas La. C.C.P. art. 1293(B) applies to summary proceedings such as the preliminary injunction. The trial court correctly rejected plaintiffs' explanation for its delay in requesting subpoenas, that is, that a hearing on a dispositive preliminary matter was scheduled less than ten days before the trial.
Louisiana Code of Civil Procedure article 1355 states, in pertinent part:
B. Except as otherwise provided by law, when the sheriff has not made service of a subpoena within five days after its receipt or when a return has been made certifying that the sheriff has been unable to make service, any person over the age of majority, not a party and residing within the state, may make service of the subpoena in the same manner as is required by the sheriff.Further, Rule 9.15 of the Louisiana District Court Rules states that in cases other than juvenile and family law proceedings, a request for issuance of a subpoena shall be filed with the clerk of court at least ten days before the desired appearance date, unless a different deadline is set by the trial court in the pretrial or other order.
Louisiana Code of Civil Procedure article 1293 states, in pertinent part:
A. When the sheriff has not made service within ten days after receipt of the process or when a return has been made certifying that the sheriff has been unable to make service, whichever is earlier, on motion of a party the court shall appoint a person over the age of majority, not a party and residing within the state whom the court deems qualified to perform the duties required, to make service of process in the same manner as is required of sheriffs....
B. In serving notice of a summary proceeding as provided by Article 2592 or a subpoena which is related to the proceeding, on motion of a party the court shall have the discretion to appoint any person over the age of majority, not a party and residing within the state, to make service of process, notices, and subpoenas in the same manner as is required of sheriffs, without first requiring the sheriff to attempt service. The party making such a motion shall include the reasons, verified by affidavit, necessary to forego service by the sheriff, which shall include but not be limited to the urgent emergency nature of the hearing, knowledge of the present whereabouts of the person to be served, as well as any other good cause shown.
A permanent injunction involves an ordinary proceeding whereas a preliminary injunction may be issued through summary proceedings. See Schwegmann Bros. Giant Super Markets v. Louisiana Milk Comm'n, 290 So. 2d 312, 316 (La. 1974).
We note that in Burgess v. City of Baton Rouge, 477 So.2d 143, 146 (La. App. 1 Cir. 1985), this court found that plaintiffs were not entitled to a continuance under the trial court's discretionary authority pursuant to La. C.C.P. art. 1601 where there was short notice on a subpoena request coupled with a late motion for a continuance and the trial court's docket was so overloaded that the case would have been delayed for a year.
As to plaintiffs' failure to answer Shoe Creek's intervention, their contention is premised on La. C.C.P. art. 1571, which allows the district courts to prescribe the procedure for assigning cases for trial, but which also provides that "[t]hese rules shall not allow the assignment of ordinary proceedings for trial except after answer filed." La. C.C.P. art. 1571(A)(2). Typically, a judgment obtained in violation of the mandatory requirements of La. C.C.P. art. 1571 is null and void, unless this irregularity is waived. Shepherd v. Schedler, 2015-1750 (La. 1/27/16), 209 So.3d 752, 776, on reh'g (5/2/16). According to the jurisprudence, when a defendant proceeds to trial without objection even though he has not filed an answer, he waives his right to complain of the lack of an answer. Shepherd, 209 So.3d at 776; Cortina v. Gulf States Utilities-Cajun Elec. Power Coop., Inc., 594 So.2d 1326, 1328 (La. App. 1 Cir. 1991), writs denied, 600 So.2d 666, 667 (La. 1992). Plaintiffs' lack of an answer to the intervention was not a basis for the continuance because plaintiffs waived any objections by filing a pretrial order and participating in a pretrial conference, by failing to object when the trial court originally scheduled the trial after hearing the preliminary injunction, and by filing the joint motion asking the trial court to hear both the declaratory judgment and permanent injunction claims together.
Alternatively, in the event that plaintiffs' actions did not constitute a waiver of their objections, we note that plaintiffs' pretrial memorandum could serve as an answer in this case. Shoe Creek's petition for intervention simply prayed for judgment in favor of defendants and for the dismissal of plaintiffs' action. Thereafter, plaintiffs filed a lengthy pretrial memorandum explaining why judgment should be granted in their favor. The substance of the factual statements and legal arguments contained in the pretrial memo responded to and opposed the petition for intervention, which only sought dismissal of plaintiffs' case; therefore, the pretrial memorandum achieved the substantive purpose of an answer. See Ryan Gootee Gen. Contractors, LLC v. Plaquemines Parish Sch. Bd. & One Const., Inc., 2015-325 (La. App. 5 Cir. 11/19/15), 180 So.3d 588, 595.
Lastly, as to plaintiffs' complaints that they received the preliminary injunction transcript late, plaintiffs were already familiar with the information in it, they filed their pretrial memorandum without it, and when they filed their motion to combine the declaratory judgment and permanent injunction, they did not complain about the lack of the transcript.
We find no abuse of discretion in the trial court's denial of plaintiffs' motion for a continuance. Plaintiffs had two months' notice of the trial date, and the day before filing their motion to continue, they asked the trial court to consolidate the declaratory judgment and preliminary injunction hearings. The trial court properly considered the diligence of plaintiffs and whether reasonable grounds existed for granting the continuance. This assignment of error lacks merit.
We will next consider plaintiffs' assignments of error that the trial court erred in failing to declare the Ordinance facially invalid and enjoin its enforcement and that the trial court erred in failing to declare that defendants acted arbitrarily, capriciously, or abused their discretion or authority in enacting the Ordinance. Plaintiffs contend that Subsection 14.8D(4)a.ii of the Zoning Code limits the Shoe Creek TND to forty-one apartments based on the net density calculator in Appendix I and that the City Council did not have the authority to approve 250 apartments. Subsection 14.8D(4) states, in pertinent part:
Shoe Creek is to consist of 447 single family homes, 250 multifamily units, and approximately 100,000 square feet of general commercial and neighborhood business units on 135.3 acres.
4. Dwelling Unit Density. The number of residential dwelling units and the amount of nonresidential development, excluding open spaces, shall be determined as follows, provided that single-family detached dwellings shall account for at least 50 % of the total number of residential units in the TND:
a. In areas devoted to mixed residential uses:
* * *
ii. The number of Multi-Family units shall be compatible with the density permitted in the R-3 district and the residential density calculated by using Appendix I;
* * *
b. In mixed-use areas:
i. The number of single-family and multi-family dwelling units permitted shall be calculated the same as above plus an additional number of units not to exceed ten percent of the amount permitted above.
(emphasis added.)
Plaintiffs also complain about the Ordinance's waiver of residential density restrictions and the following provision, which they allege purports to supersede any and all conflicting ordinances, including Central's existing Zoning Code. Section 4 of the Ordinance states:
The specific terms and conditions of this Ordinance shall prevail against other ordinances of the City to the extent that there may be any conflict. Except for the foregoing, the development of the subject property is subject to the terms of all applicable ordinances and regulations of the City of Central, including any amendment thereto.
A TND is a type of PUD (Planned Unit Development). Section 14.8 of the Zoning Code, titled "Alternative standards; traditional neighborhood developments (TND)," is part of Chapter 14, which is titled, "Planned Unit Development Regulations." Moreover, Subsection 14.8.C of the Zoning Code's TND provisions states, "Application and Approval Process. The application and approval process for a TND is the same as for any other PUD. The design requirement and standards set forth herein are intended to provide a more efficient design and approval process." (emphasis added).
A PUD is defined by the Zoning Code as one or more uses accommodated in a planned environment under more flexible standards than those allowed in the district in which the development is located. Additionally, Section 14.1(B) of the Zoning Code provides that a PUD incorporates a single type or a variety of related uses which are planned and designed as a unit.
Sections 14.1 and 14.6(G) of the Zoning Code expressly give the City Council discretion to deviate from the density limitations in approving any PUD. Section 14.1 states:
The purpose of the Planned Unit Development Regulations is to allow more creative and imaginative design for land development than is possible under the underlying zoning district regulations. In this regard, the bulk and use regulations of any district may be modified within a Planned Unit Development to preserve the natural site qualities, include urban amenities, create more open space and greater aesthetics and facilitate an overall higher quality project.Section 14.6(G) provides:
Other Standards: The Planned Unit Development may depart from strict conformance with the required density, dimension, area, height, bulk, use and other regulations for the zoning district in which the property is located, so long as the Planned Unit Development will not be detrimental to or endanger the public health, safety, morals, comfort or general welfare.After receiving input from the public, the City Council exercised its discretion to approve the Shoe Creek TND with 250 apartments.
(emphasis added).
The testimony from the preliminary injunction hearing that plaintiffs offered at the trial consisted of testimony from the Mayor, the four City Council members, the City's chief administrative officer, another developer, the planning and zoning director for Central, a professional engineer for the City of Baton Rouge, the manager for the Shoe Creek development project, and Mr. Freneaux. The Mayor indicated that the Shoe Creek development was consistent with aiding in the health, welfare, morals, and citizenry of Central. He also explained that Shoe Creek was an "economic engine" and would bring needed retail development, apartments, and jobs to Central. The Mayor testified that at least nine public meetings were held about Shoe Creek. Mr. Freneaux acknowledged in his testimony that there were several public meetings where the citizens were allowed to participate.
The Ordinance specifically refers to the public meeting before the Central Zoning Commission held on June 25, 2015.
David Barrow, the former chief administrative officer, testified that the City Council had flexibility to depart from the maximum allowable apartment units, but it had to follow the net density calculator. He later stated that under the TND section of the Zoning Code, the net density calculator had to be used in considering a variance, whereas in the PUD section, the density would be calculated with the net density calculator and then the developer could vary from it.
Woodrow Muhammad, Central's planning and zoning director, who reviewed the Shoe Creek proposal to determine if it met the Zoning Code, testified that a TND was classified as a PUD in the Code; that the City Council had the discretion to approve a PUD that departed from the normal standards of the Code; that if a proposal for a TND provided additional green space or an additional benefit to the City, it was within the Council's discretion to approve it; and that Shoe Creek proposed items such as additional green space and the like. He interpreted the Code to allow the Council to depart from the net density calculator. Mr. Muhammad indicated that the net density calculator provided for 41 apartments and he was aware that Shoe Creek sought approval for 250 apartments. He suggested the Council should approve the Shoe Creek TND and provide for density bonuses, a provision in the net density calculator. Mr. Muhammad also testified that at least six public meetings were held on the Shoe Creek development.
Muhammad did not testify as an expert.
When asked whether they believed it was within their "unfettered discretion" to deviate from the net density calculator, the councilpersons answered affirmatively. One councilwoman, when asked whether she was aware of the calculations based on the net density calculator and whether she believed that it was "an exercise of good discretion in this case to deviate" as to the number of apartments, answered affirmatively. She explained that her vote was based on the recommendations of Central's zoning attorney and the Planning and Zoning Commission and the Planning and Zoning Board.
The presumption of validity attached to zoning ordinances is a well-established principle of law in Louisiana. Palermo Land Co., Inc. v. Planning Comm'n of Calcasieu Parish, 561 So.2d 482, 491 (La. 1990). In a zoning case, the petitioner bears the burden of proving that the action taken by the zoning body in acting on a zoning challenge is arbitrary and capricious. See Id. at 493. A challenge to a zoning decision in Louisiana is a de novo proceeding in which the issue is whether the result of the legislation is arbitrary and capricious, and therefore a taking of property without due process of law. Id. at 492. Whether an ordinance bears the requisite relationship to the health, safety, and welfare of the public is a factual question which must be determined from the evidence in the record. Id. If it appears appropriate and well-founded concerns for the public could have been the motivation for the zoning ordinance, it will be upheld. Id. The interpretation of municipal authorities with respect to a municipal zoning ordinance is entitled to great weight. See Gautreau v. Bd. of Elec. Exam'rs of City of Baton Rouge, 167 So.2d 425, 433 (La. App. 1 Cir. 1964). On appeal, a reviewing court does not consider whether the district court was manifestly erroneous in its findings but, rather, whether the zoning board acted arbitrarily, capriciously, or with any calculated or prejudicial lack of discretion. King v. Caddo Parish Comm'n, 1997-1873 (La. 10/20/98), 719 So.2d 410, 418.
We are not applying the standard of review applicable to the grant of an involuntary dismissal because this appeal involves issues related to the exercise of the zoning body's discretion. See Residents of Highland Road, LLC v. Parish of East Baton Rouge, 2008-2542 (La. App. 1 Cir. 7/22/09), 2009 WL 2183146, p.4.
We do not find that the Ordinance was facially invalid. As stated earlier, a TND is a type of PUD, and the Zoning Code allows a PUD to depart from the required density as long as the variance would not be detrimental to or endanger the public health, safety, morals, comfort, or general welfare. We also cannot conclude that the Ordinance's statement that its terms shall prevail against other City ordinances in the event of a conflict renders the Ordinance invalid. We interpret this statement to authorize the variances set forth in the Ordinance and note that it is followed by the sentence stating that otherwise the property is subject to the terms of all applicable ordinances and regulations of the City.
After reviewing all of the evidence submitted by plaintiffs at the trial, we determine plaintiffs failed to establish that defendants acted arbitrarily, unreasonably, or abused their discretion in passing the Ordinance. After receiving public comment about the Shoe Creek development at multiple public forums, the City Council concluded that the economic and other benefits of the Shoe Creek development outweighed plaintiffs' concerns. We conclude, as did the trial court, that plaintiffs did not meet their heavy burden of proving that defendants abused their discretion in approving the Shoe Creek development. Plaintiffs' assignments of error regarding the validity of the Ordinance lack merit.
Plaintiffs argue that the Ordinance authorizes a 600% upward deviation in the net residential density of the TND. Defendants counter that plaintiffs' 600% figure is mathematically incorrect as it considers only apartments, not all residential units.
In its oral reasons for its ruling, the trial court commented that plaintiffs put forth no additional evidence at trial and used the same evidence it introduced at the preliminary injunction, which had a lesser burden of proof. The issuance of a permanent injunction takes place only after a trial on the merits in which the burden of proof is a preponderance of the evidence, but a preliminary injunction may be issued on merely a prima facie showing by the plaintiff that he is entitled to relief. Mary Moe, L.L.C., v. Louisiana Bd. Of Ethics, 2003-2220 (La. 4/14/04), 875 So.2d 22, 29.
We will next consider plaintiffs' assignment of error that the trial court erred in denying their motion for new trial and the assignment of error that the trial court's pretrial rulings resulted in a miscarriage of justice due to their cumulative effect. Louisiana Code of Civil Procedure article 1972 provides as follows, in pertinent part:
A new trial shall be granted, upon contradictory motion of any party, in the following cases:When a motion for new trial is based on La. C.C.P. art. 1972(2), the allegations of fact therein "shall be verified by the affidavit of the applicant." La. C.C.P. art. 1975.
(1) When the verdict or judgment appears clearly contrary to the law and the evidence.
(2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.
Louisiana Code of Civil Procedure article 1973 provides a discretionary basis for a new trial, stating, "A new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law." Louisiana jurisprudence is clear that a new trial should be ordered when the trial court, exercising its discretion, is convinced by its examination of the facts that the judgment would result in a miscarriage of justice. Arnouville v. Crowe, 2016-0046 (La. App. 1 Cir. 9/16/16), 203 So.3d 479, 484. The denial of a motion for new trial, whether on peremptory or discretionary grounds, should not be reversed unless there has been an abuse of the trial court's discretion. Id.
A trial judge has great discretion in the manner in which proceedings are conducted before his court. See La. C.C.P. art. 1631; see also Pennison v. Carrol, 2014-1098 (La. App. 1 Cir. 4/24/15), 167 So.3d 1065, 1075. It is only upon a showing of a gross abuse of discretion that appellate courts have intervened. Schexnayder v. Bridges, 2015-0786 (La. App. 1 Cir. 2/26/16), 190 So.3d 764, 772.
Plaintiffs complain about the trial court's failure to grant their motion for continuance, which we have previously discussed, the setting of the hearing on the motion to compel and the motion for summary judgment less than ten days before trial, the setting of the hearing on the motion for summary judgment despite an outstanding motion to compel discovery, the failure of the non-party deponents to approve the deposition transcripts before the trial began, and the limitation of the trial to one day and the opening statement to two minutes. As to the length of the trial, the allotment of time for trial was within the discretion of the court, and moreover, plaintiffs did not demonstrate a need for additional time. Similarly, as to the limitation on the opening statement, plaintiffs allege their counsel spoke for about four minutes and they did not allege any specific prejudice due to time constraints. As to the depositions, plaintiffs did not raise this issue until after the trial and additionally, the depositions, of which all but one were of plaintiffs, were not used at trial. As to the hearing on the motion for summary judgment assigned too close to trial, the trial court did not ever actually hear the motion but passed the motion so that the matter would be set for trial. After considering plaintiffs' contentions, we conclude that the trial court did not abuse its discretion in the pretrial rulings complained of by plaintiffs, nor did the trial court abuse its discretion in denying plaintiffs' motion for new trial pursuant to La. C.C.P. art. 1973 based on those rulings.
The transcript of the hearing on the motion for new trial and a memorandum in support of the motion for new trial are not in the appellate record. --------
Plaintiffs then filed a supplemental motion for a new trial pursuant to La. C.C.P. art. 1972(2), complaining that they received written notice from the custodian of records for Central that records and documents responsive to particular public records requests before and during the pendency of this suit had been withheld. Plaintiffs alleged they had a separate suit, pending in district court, asserting violations of the Louisiana Public Records Act, apparently regarding records pertinent to this suit. They contended that an email to the mayor and two non-party witnesses from the Planning and Zoning attorney for Central contained statements contrary to defendants' position at the trial and consistent with plaintiffs' position. Plaintiffs attached copies of three email exchanges to their supplemental motion for new trial.
To meet their burden of proof on a motion for new trial based upon newly discovered evidence, the mover must show that such evidence: 1) is not merely cumulative; 2) would tend to change the result of the case; 3) was discovered after trial; and 4) could not, with due diligence, have been obtained before or during trial. Slaughter v. Bd. of Supervisors of S. Univ. & Agric. & Mech. Coll., 2010-1049 (La. App. 1 Cir. 8/2/11), 76 So.3d 438, 460, writ denied, 2011-2110 (La. 1/13/12), 77 So.3d 970. Plaintiffs did not verify the allegations in their supplemental motion with an affidavit. They also did not demonstrate that the "new" evidence would tend to change the result of the case and that it could not, with due diligence, have been obtained before or during trial. Accordingly, we find no abuse of discretion in the trial court's denial of the motion for new trial or the supplemental motion for new trial. Therefore, plaintiffs' assignments of error regarding the pretrial rulings and the motions for new trial lack merit.
CONCLUSION
For all of the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are to be paid by plaintiffs, Mark D. Freneaux, Michael Mannino, and Michael Stephens as taxpayers of the City of Central.
AFFIRMED.