Opinion
2012 CA 0896
09-09-2013
LARUSSA ENTERPRISES, INC. v. PATRICK GORDON
Jerald P. Block Thibodeaux, Louisiana Attorney for Plaintiff/Appellant LaRussa Enterprises, Inc. Courtney E. Alcock Assistant Parish Attorney Houma, Louisiana Attorneys for Defendant/Appellee Terrebonne Parish Consolidated Government
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE THIRTY-SECOND JUDICIAL DISTRICT COURT
IN AND FOR THE PARISH OF TERREBONNE
STATE OF LOUISIANA
DOCKET NUMBER 142,315
HONORABLE DAVID W. ARCENEAUX, JUDGE
Jerald P. Block
Thibodeaux, Louisiana
Attorney for Plaintiff/Appellant
LaRussa Enterprises, Inc.
Courtney E. Alcock
Assistant Parish Attorney
Houma, Louisiana
Attorneys for Defendant/Appellee
Terrebonne Parish Consolidated
Government
BEFORE: KUHN, McDONALD, AND DRAKE, JJ.
McDONALD, J.
This case concerns the denial of a truck stop casino permit. It has a long procedural history, which will be summarized herein. LaRussa Enterprises, Inc. (LaRussa Enterprises), a property development company, initially sought a writ of mandamus commanding Patrick Gordon, the director of the Terrebonne Parish Planning and Zoning Department, to issue two building permits for casino and truck stops based on applications submitted by LaRussa Enterprises in May and June, 2004. Mr. Gordon had denied one permit on May 24, 2004, for noncompliance with Terrebonne Parish Ordinance 6399, and LaRussa Enterprises anticipated that the second permit would also be denied. LaRussa Enterprises amended the petition several times, adding a third permit that it anticipated would be denied, adding the Terrebonne Parish Consolidated Government (TPCG) and the Terrebonne Parish Council as defendants, and converting the action to a petition for declaratory judgment and a petition for damages. LaRussa Enterprises also raised several issues regarding subsequent Terrebonne Parish Ordinances that were enacted after the denial of its building permits, which were dismissed by the district court and are not relevant to this appeal.
After numerous pre-trial motions and exceptions were filed and .rulings were made by the district court, TPCG was left as the sole defendant, and a trial proceeded on the only remaining issue, whether LaRussa Enterprises was entitled to damages as a result of TPCG's denial of its application for a building permit for a truck stop casino. After the trial, the district court dismissed LaRussa Enterprises' claim for damages, finding that LaRussa Enterprises failed to carry its burden of proving that TPCG had wrongfully denied the application for a building permit.
In its reasons for judgment, the district court cited Terrebonne Parish Ordinance 6399, adopted by the Terrebonne Parish Council on March 28, 2001, which provides that "All truck stops outside the Urban Services District shall be located within one thousand (1,000) feet of U.S. Highway 90 right-of-way or the proposed 1-49 corridor." The district court reasoned that the location of the casino and truck stop proposed by LaRussa Enterprises was clearly outside of the Urban Services District in Terrebonne Parish and many miles from the U.S. Highway right-of-way or the proposed 1-49 corridor.
LaRussa Enterprises is appealing the judgment. On appeal, LaRussa Enterprises makes the following assignments of error.
1. The district court committed manifest error excluding evidence, specifically, a letter from the assistant parish attorney that specifically addressed the problems with the validity of Terrebonne Parish Ordinance Number 6399.
2. The district court committed manifest error excluding accurate transcripts of the Terrebonne Parish Council committee.
3. The district court committed manifest error excluding the expert report from plaintiff-appellant's financial expert.
4. The district court committed manifest error excluding opinion testimony from plaintiff-appellant's financial expert.
5. The district court committed manifest error excluding testimony from the Terrebonne Parish Council Clerk relating to the validity of Terrebonne Parish Ordinance Number 6399.
6. The district court committed manifest error excluding evidence about other litigation against Terrebonne Parish, involving the same or similar issues, which was ultimately compromised by granting a building permit,
7. The district court committed manifest error dismissing the case against the [defendant-appellee] since the adoption of Terrebonne Parish Ordinance Number 6399 was p rocedurally and legally flawed and failed to comply with the Terrebonne Parish Home Rule Charter and other Council rules.
8. The district court committed manifest error dismissing the case against the [defendant-appellee] when the evidence clearly established the invalidity of Ordinance Number 6399 for failure to comply with state law requirements pertinent to the necessity for a comprehensive plan pertaining to zoning regulations.
Assignments of error numbers one through six address the exclusion of evidence by the trial court. The standard of review for evidentiary rulings of a trial court is abuse of discretion; the trial court's ruling will not be disturbed unless it is clearly erroneous. Riverside Recycling, LLC v. BWI Companies Inc. of Texas, 2012-0588 (La. App. 1 Cir. 12/28/12), 112 So.3d 869, 874.
LaRussa Enterprises maintains that the district court erred in excluding from evidence a letter written on June 7, 2004, from TPCG Assistant Parish Attorney Courtney Alcock to Council Chairman Clayton Voison. The letter addressed the validity of Terrebonne Parish Ordinance 6399. LaRussa Enterprises sought to introduce the letter into evidence during the testimony of Michael LaRussa, an officer of LaRussa Enterprises.
The district court denied the admission of the letter, finding that it was hearsay, that there was insufficient foundation to introduce it, that it was subject to the attorney-client privilege, and that it was irrelevant because it was written two weeks after LaRussa Enterprises' permit was denied. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, the Louisiana Code of Evidence, or other legislation. Evidence which is not relevant is not admissible. La. C.E. art. 402.
We find no abuse of discretion by the district court in excluding the letter from the record, as it was irrelevant to the issue of whether the TPCG denied LaRussa Enterprises' permit in bad faith, since it was written two weeks after the LaRussa Enterprises' permit was denied. We need not address the other grounds for exclusion.
In assignment of error number two, LaRussa Enterprises asserts that the district court erred in excluding transcripts it had prepared from audiotapes of the Terrebonne Parish Community Development and Planning Committee meeting of January 23, 2001. The transcripts were prepared by LaRussa Enterprises from the audiotapes of the meeting in anticipation of the litigation. The district court ruled that the transcripts were not a public record and were hearsay. The audiotapes of the meeting were accepted into evidence. We find no abuse of discretion by the district court in excluding the transcripts from the record, as the court had the audiotapes of the meeting, the transcripts were not a public record, and they would have been cumulative material.
In assignment of error number three, LaRussa Enterprises asserts that the trial court erred in excluding from evidence a report from LaRussa Enterprises' financial expert, Charles Theriot. Mr. Theriot was accepted by the court as an expert in the field of financial forensics, business valuation, lost profits valuation, as a certified public accountant, and as an expert in video poker truck stops valuation and lost profits. Mr. Theriot testified at trial regarding lost profits that LaRussa Enterprises would have earned, if the truck stop casino permit had been granted. TPCG objected to the report as hearsay, and argued that the report had no factual basis.
The district court ruled that the report was hearsay, and that since Mr. Theriot had testified, there was no need for the report to be introduced. At trial, LaRussa Enterprises conceded that the report did not fall within a hearsay exception. We find no abuse of discretion by the district court in excluding Mr. Theriof s report from evidence.
In assignment of error number four, LaRussa Enterprises asserts that the trial court erred in excluding opinion testimony from Mr. Theriot regarding LaRussa Enterprises' ability to obtain financing for a truck stop casino. The district court essentially found that Mr. Theriot was not an expert in banking, and thus, could not testify regarding LaRussa Enterprises' ability to obtain financing. A trial court has great discretion in determining whether to qualify a witness as an expert, and such discretion will not be disturbed on appeal in the absence of manifest error. Thongsavanh v. Schexnayder, 2009-1462 (La. App. 1 Cir. 5/7/10), 40 So.3d 989, 997, writ denied 2010-1295 (La. 9/24/10), 45 So.3d 1074; Burdette v. Drushell, 2001-2494 (La. App. 1 Cir. 12/20/02), 837 So.2d 54, 65, writ denied, 2003-0682 (La. 5/16/03), 843 So.2d 1132. Mr. Theriot was not tendered as an expert in banking or financial lending, and we find no abuse of discretion by the district court in its finding that Mr. Theriot was not an expert in the area of banking.
In assignment of error number five, LaRussa Enterprises asserts that the trial court erred in excluding testimony from the retired Terrebonne Parish Council Clerk, Paul Labat, regarding the validity of Terrebonne Parish Ordinance 6399. Mr. Labat testified about the procedural history of Ordinance 6399 and the requirements for it to become an ordinance pursuant to the Terrebonne Parish Home Rule Charter. Mr. Labat was asked "So then based upon the Charter it would be, assuming my premises, it would be an invalid ordinance, correct?" TPCG objected on the basis that the answer would be a legal conclusion.
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally based on the perception of the witness and helpful to a clear understanding of his testimony or the determination of a fact in issue. La. C.E. art. 701. The question posed to Mr. Labat was based upon a hypothetical situation and required a legal conclusion. We find no abuse of discretion by the district court in excluding this testimony.
In assignment of error number six, LaRussa Enterprises maintains that the district court erred in excluding evidence about other litigation (the NDR case) against Terrebonne Parish, involving the same or similar issues, which was ultimately compromised by granting a building permit. The district court reasoned that the NDR case arose after the LaRussa Enterprises permit was denied, thus the NDR case was irrelevant to a determination of the law at the time the LaRussa Enterprises permit was denied and to a proper resolution of this case.
Considering the fact that the NDR litigation arose after the permit at issue in this case was denied, we find no abuse of discretion by the district court in finding that the evidence was not relevant and in excluding that evidence from the record.
In assignment of error number seven, LaRussa Enterprises asserts that the district court erred in dismissing the case against TPCG since the adoption of Ordinance 6399 was procedurally and legally flawed and failed to comply with the Terrebonne Parish Home Rule Charter and other Council rules.
The presumption of validity attached to zoning ordinances is a well established principle of law in Louisiana. 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. 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. If it appears appropriate and well founded concerns for the public could have been the motivation for the zoning ordinance, it will be upheld. Palermo Land Co., Inc. v. Planning Com'n of Calcasieu Parish, 561 So.2d 482, 491-492 (La. 1990).
LaRussa Enterprises contends that there were two ordinances considered by the Terrebonne Parish Community Development and Planning Committee at the meeting on January 23, 2001, and that the proposed ordinance addressing regulating truck stop casinos outside the city limits of Houma or outside of the Urban Services District was not approved by the committee and therefore, not properly before the Terrebonne Parish Council. Rather, it maintains, the proposed ordinance which was approved by the committee was one regulating truck stop casinos within Houma city limits.
The district court found that, after considering all of the reliable evidence and testimony, Ordinance 6399 was a validly enacted ordinance concerning a subject matter subject to regulation by the local government, and accurately represented the intention of the Terrebonne Parish Council.
The Terrebonne Parish Community Development and Planning Committee minutes from January 23, 2001, show that the Committee considered two proposed ordinances regarding truck stops. One ordinance was retained by the Committee for further review, and a second ordinance was approved by unanimous vote.
The Notice of Public Hearing which was transmitted to the Courier (the Houma Daily Courier) from the Terrebonne Parish Council stated that the proposed ordinance, which would be heard at a public hearing on March 28, 2001, was a proposed ordinance which would amend the parish code relative to regulations for truck stop developments.
The Terrebonne Parish Council minutes show that Ordinance 6399 was presented to the Terrebonne Parish Council on March 28, 2001, and limited the location of truck stops outside of the Urban Services District to property within 1,000 feet of Highway 90 or the proposed 1-49 corridor. After taking public comments on the regulation, Ordinance 6399 was unanimously approved by the Terrebonne Parish Council, according to the minutes. Although LaRussa Enterprises asserts that there was confusion as to which ordinance was presented for a vote, all of the members of the Terrebonne Parish Council were also members of the Terrebonne Parish Community Development and Planning Committee. Thus, the Council members would have had personal knowledge of which ordinance was passed, and which ordinance was held in committee.
After a de novo review, we find that LaRussa Enterprises failed to carry the burden of proving that the adoption of Ordinance 6399 was procedurally and legally flawed, or that it failed to comply with the Terrebonne Parish Home Rule Charter and other Council rules. Thus, we find no error in the trial court's conclusion.
In assignment of error number eight, LaRussa Enterprises maintains that the district court committed manifest error in dismissing the case against TPCG when the evidence clearly established the invalidity of Ordinance 6399 for failure to comply with state law requirements pertinent to the necessity for a comprehensive plan pertaining to zoning regulations. LaRussa Enterprises asserts that La. R.S. 33:4780.42 prohibits the parish government from passing zoning regulations without first approving a comprehensive plan.
Louisiana Revised Statute 33:4780.42 provides:
Regulations adopted pursuant to this Subpart 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, avoid undue concentration of population, facilitate adequate transportation, water supply, sewerage, schools, parks, and meet other public requirements. Such regulations shall be made with reasonable consideration of the character of a district and its peculiar suitability for particular uses and with a view to conserving the values of buildings and encouraging the most appropriate use of land throughout the parish.
This statute contemplated the creation of zoning districts, and nowhere is there a requirement that the whole parish be divided into districts before any single district could be created. In Jameson v. St. Tammany Parish Police Jury, 225 So.2d 720, 723 (La. App. 1 Cir. 1969), the court reviewed the validity of an ordinance that created a zoning district and found that the ordinance satisfied the statutory requirement of a comprehensive plan although no policy had been adopted concerning the rest of the parish.
Further, La. R.S. 33:4780.50(A) provides that "nothing in this Subpart shall be construed to limit, supersede, or repeal any grant of zoning authority heretofore granted to any parish, or parish governing authority either by statute or home rule charter." Terrebonne Parish has a Home Rule Charter which provides the authority to adopt or modify zoning plans, maps, and regulations by ordinance. Louisiana Revised Statute 27:324(A), part of the Louisiana Gaming Control Law, provided that local governments have the authority to enact zoning ordinances and building codes to regulate and restrict the placement or use of video draw poker devices, or the location, design, and construction of buildings, structures, and land for licensed video draw poker device operation at qualified truck stop facilities. It also provided that "[t]he provisions of this Section shall not be construed as limiting, superseding, or repealing any grant of zoning authority heretofore granted to any governing authority either by statute or home rule charter." La. R.S. 27:324(B).
Louisiana Revised Statute 27:324 was redesignated as La. R.S. 27:452 by Acts 2012, No. 161, § 4, effective August 1, 2012.
LaRussa Enterprises asserts that Ordinance 6399 attempted to zone property outside the geographical boundaries of the Terrebonne Parish Urban Services District, which was an attempt at spot zoning and a further attempt to zone only the video poker truck stop industry. LaRussa Enterprises maintains that the closest case to theirs is Trail Mining, Inc. v. Village of Sun, 619 So.2d 118 (La. App. 1 Cir. 1993). In that case, a trail mining company (Trail Mining, Inc.) brought a petition for declaratory judgment and injunctive relief against the Village of Sun. Trail Mining, Inc. had an agreement with Floyd Stanley Mizell to mine a gravel deposit on Mr. Mizell's property located within the village limits of the Village of Sun. Ordinance 31 of the Village of Sun prohibited the construction and digging out of a gravel pit within 1200 feet of any building used primarily as a residence. However, Ordinance 31 allowed for an exception where the property owner and resident and operator of the gravel mining company agreed to the gravel pit location within the 1200 foot limit of the residence. One of Mr. Mizell's neighbors refused to waive the prohibition, and Trail Mining, Inc. filed a petition to have Ord inance 31 declared unconstitutional, or in the alternative, null and void.
The trial court dismissed the petition, finding that the exception section of Ordinance 31 was unconstitutional, but severable, and that Ordinance 31 was in compliance with La. R.S. 33:4723. Trail Mining, Inc. appealed the judgment. The appellate court found that Ordinance 31 was not a general plan to control the use and development of property in the community, but a single, prohibitive regulation which did not comply with the comprehensive plan requirement of La. R.S. 33:4723, and it was thus invalid. The appellate court did not reach the issue of constitutionality.
LaRussa Enterprises asserts that Ordinance 6399 is also a single, prohibitive regulation which has no general plan for use or development of property. However, we find that Ordinance 6399 is distinguishable from the ordinance in Trail Mining, Inc. Ordinance 6399 created a single district in which truck stop casinos could be built. An ordinance creating a zoning district has been found to qualify as a part of a comprehensive plan in Jameson, 225 So.2d at 723-724. In that case, the plaintiff, Paul H. Jameson, acquired property adjoining his motel outside of Covington and converted the residence into a restaurant. He then applied to the St. Tammany Parish Police Jury for a liquor license, which was denied on the grounds that Mr. Jameson's intended use for the property was in direct conflict with Ordinance 231, which zoned the property against businesses of all kinds and restricted it to residential purposes only. Pursuant to La. R.S. 26:104, Mr. Jameson appealed the decision to the district court. After a trial, the district court upheld the denial of the liquor license. Mr. Jameson appealed that judgment, maintaining that Ordinance 231 was illegal as it violated the enabling act requiring that zoning be carried out in accordance with a comprehensive plan, or in the alternative, it was unconstitutional because it was arbitrary and capricious. Regarding the need for zoning to follow a comprehensive plan, the appellate court found that the residential zoning was for the good of the parish, as well as the residential area, by maintaining the high quality of the neighborhood, and that by creating a zoning district, this was accomplished; that the requirements of a comprehensive plan were also met in that the regulations were designed to lessen congestion on the public streets, secure safety from fire, promote health and the general welfare, provide adequate light and air, and avoid undue concentration of population; and that zoning for a large area like New Orleans was more complex than that for a rural community like St. Tammany. As to the argument of constitutionality, the appellate court found that Ordinance 231 attempted to protect a geographically unique and homogeneous area which had been a residential area for many years. Thus, the appellate court found that Ordinance 231 was not arbitrary or unreasonable, and further, that Ordinance 231 represented a legitimate exercise of police power by the St. Tammany Parish Police Jury and affirmed the trial court judgment.
In the case sub judice, Ordinance 6399 created a single district where truck stop casinos could be located within 1,000 feet of the U.S. Highway 90 right-of-way. TPCG had specific authority from La. R.S. 27:324 to restrict or regulate the location of truck stop casinos, as well as the zoning authority provided by its Home Rule Charter. The TPCG commissioned a "Truck Stop Analysis" of various health, safety and general welfare issues by the South Central Planning and Development Commission, a regional planning commission, on the issue of regulating truck stop casinos and the study is cited in Ordinance 6399 as support for its enactment. The record shows that members of the public and members of the Terrebonne Parish Council expressed ongoing concerns at their meetings about the proliferation of truck stops in the parish, and about truck stops being located too closely to neighborhoods and eroding the quality of life in Terrebonne Parish.
After a de novo review, we find that LaRussa Enterprises failed to show that Ordinance 6399 was arbitrary and capricious. The evidence in the record shows that Ordinance 6399 bears the requisite relationship to the health, safety and welfare of the public and it appears that appropriate and well founded concerns for the public were the motivation for the ordinance. See Palermo Land Co., Inc., 561 So.2dat491-492.
Thus, the district court judgment, ruling in favor of the Terrebonne Parish Consolidated Government, and dismissing LaRussa Enterprises' suit, is affirmed. Costs are assessed against LaRussa Enterprises.
AFFIRMED.
LARUSSA ENTERPRISES, INC.
v.
PATRICK GORDON
NO. 2012 CA 0896
KUHN, J. concurring.
I agree with the result reached by the majority in this case because the law compels that outcome. Unfortunately, there is no legal remedy available to an aggrieved person when a local government fails to adhere to its informal rules and traditions. This permits situations to arise in which governmental representatives interact with individuals in ways that appear misleading, bringing about harsh consequences like that suffered by LaRussa Enterprises, Inc.