Opinion
No. 2022 CA 1053
05-23-2023
POINTE PROSPECT, LLC v. WEST FELICIANA PARISH GOVERNMENT
Alan K. Breaud, Timothy W. Basden, Lafayette, Louisiana, Attorneys for Plaintiff/Appellant, Pointe Prospect, LLC Dannie P. Garrett, III, Baton Rouge, Louisiana, Attorney for Defendant/Appellee, West Feliciana Parish Government
Alan K. Breaud, Timothy W. Basden, Lafayette, Louisiana, Attorneys for Plaintiff/Appellant, Pointe Prospect, LLC
Dannie P. Garrett, III, Baton Rouge, Louisiana, Attorney for Defendant/Appellee, West Feliciana Parish Government
BEFORE: GUIDRY, C.J., WOLFE AND MILLER, JJ.
WOLFE, J.
This is an appeal of a summary judgment dismissing the plaintiff's claims for damages based on inverse condemnation. We affirm.
FACTS
Pointe Prospect, LLC, is a land developer that purchased land in West Feliciana Parish for the purpose of developing a planned unit development ("PUD") subdivision. Before completing the purchase, Pointe Prospect engaged engineers and other professionals to develop a PUD concept plan, which was submitted to the West Feliciana Parish Government ("WFPG") for consideration and approval in accordance with the procedures set forth in the West Feliciana Parish Land Development Code. A request for the property to be rezoned from Rural-Agricultural to PUD was also submitted to the West Feliciana Parish Planning and Zoning Commission. The concept plan was approved and the property was rezoned in February 2019. Pointe Prospect then finalized its purchase of 114.9 acres of land, including the approximately 57 acres intended for the PUD, for approximately $1.2 million. Pointe Prospect projected that it would realize at least an $8 million return on its investment after development of the PUD.
After purchasing the property, Pointe Prospect began site work to prepare for development of final construction plans, which the West Feliciana Parish Land Development Code required submission of within one year of a subdivision's preliminary plat approval. On January 22, 2020, Pointe Prospect's engineers requested a one-year extension of the deadline for submission of final construction plans for the PUD development, which WFPG granted on January 30, 2020, extending the submission deadline to February 11, 2021. However, development was halted when the West Feliciana Parish Council adopted an ordinance on August 26, 2020, which imposed a moratorium on all subdivision development within West Feliciana Parish subject to certain exceptions inapplicable here.
The enacted ordinance, numbered Section 130-1.1, explains that substantive revision of the West Feliciana Parish Code of Ordinances is needed to better protect the health, safety, and welfare of the people of the parish. The ordinance, which remains in effect, provides:
To ensure the protection of the health, safety, and welfare of the people of West Feliciana Parish, there is hereby imposed a moratorium on the acceptance of an application for and/or approval of all applications to subdivide property within the unincorporated area of West Feliciana Parish, except as otherwise provided herein. The moratorium imposed herein shall be applicable to any pending subdivision application for which construction plans have not been approved prior to the effective date of this ordinance.
As a result of its inability to develop the property as planned, Pointe Prospect instituted this suit against WFPG, seeking damages for inverse condemnation pursuant to the Louisiana Constitution. Pointe Prospect alleged that the ordinance effectively imposed "a permanent moratorium on the development of any and all subdivisions in West Feliciana Parish, including the already approved Pointe Prospect PUD development." It contended that the moratorium was imposed after WFPG induced it to purchase the property by granting preliminary approval of the PUD and further induced it to expend funds on professional fees, site preparation, and other improvements to the property. Pointe Prospect additionally contended that the purchase price of the property was increased because of the property's increased economic value based on WFPG's preliminary approval of the PUD. Pointe Prospect averred that WFPG's actions in passing the ordinance that imposed the moratorium damaged the economic value of Pointe Prospect's land and constituted a constitutional taking by inverse condemnation, which obligated WFPG to compensate Pointe Prospect for the full extent of its loss.
WFPG answered the suit and acknowledged that the application for rezoning was granted and the PUD concept plan was approved, but otherwise denied Pointe Prospect's claims. The parties then filed cross motions for summary judgment on the issue of whether WFPG's actions in imposing the moratorium constituted a constitutional taking by inverse condemnation. Finding that there were multiple outstanding genuine issues of material fact, the trial court denied the motions.
After additional discovery, WFPG filed a second motion for summary judgment, arguing that Pointe Prospect failed to establish a claim for inverse condemnation based upon the moratorium at issue. Pointe Prospect opposed the motion, contending that the factual disputes noted by the trial court in denying the prior motions remained unresolved. After considering the evidence submitted by both parties, the trial court granted the motion for summary judgment and dismissed Pointe Prospect's claims against WFPG.
Pointe Prospect now appeals.
DISCUSSION
Appellate courts review summary judgments de novo, using the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Larson v. XYZ Insurance Company, 2016-0745 (La. 5/3/17), 226 So.3d 412, 416. That is, after an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. Code Civ. P. art. 966(A)(3). A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is appropriate. Any doubt is resolved in the non-moving party's favor. The court's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but to determine if there is a genuine issue of material fact. Larson, 226 So.3d at 416.
The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden is not to negate all essential elements of the adverse party's claim, action, or defense, but rather to 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. Code Civ. P. art. 966(D)(1). The mover can meet this burden by filing supporting documentary evidence with its motion for summary judgment, consisting of pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, stipulations, and admissions. La. Code Civ. P. art. 966(A)(4). Once a motion for summary judgment is made and properly supported, the burden shifts to the non-moving party to produce factual support, through the use of proper documentary evidence attached to its opposition, which establishes the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. Code Civ. P. art. 966(D)(1).
Pointe Prospect has asserted an inverse condemnation claim pursuant to La. Const. art. 1, § 4 (B)(1), which pertinently provides, "Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit." The inverse condemnation action provides a procedural remedy to a property owner seeking compensation for corporeal or incorporeal property already taken or damaged against a governmental or private entity having the powers of eminent domain where no expropriation proceeding has been commenced. Faulk v. Union Pacific Railroad Company, 2014-1598 (La. 6/30/15), 172 So.3d 1034, 1043-44. Under the Louisiana Constitution, the inverse condemnation action is available in all cases where there has been a taking or damaging of property when just compensation has not been paid. Faulk, 172 So.3d at 1044. To establish inverse condemnation, a party must show: (1) a recognized species of property right has been affected; (2) the property has been taken or damaged in a constitutional sense; and (3) the taking or damaging was for a public purpose. Saloom v. Department of Transportation and Development, 2022-00596 (La. 12/9/22), 354 So.3d 1179, 1182.
In opposing WFPG's motion for summary judgment, Pointe Prospect confirmed that it has not asserted a due process claim or a claim under the Fifth Amendment to the U.S. Constitution.
WFPG's motion for summary judgment asserted that Pointe Prospect will be unable to prove its inverse condemnation claim because its intention to develop a PUD did not constitute a property right protected by the Louisiana Constitution. WFPG argued that subdivision development in West Feliciana Parish was subject to pervasive government control through a regulatory system that required approval of a preliminary plat by the West Feliciana Parish Council. WFPG offered evidence to show that Pointe Prospect had not submitted, much less gained approval of, a preliminary plat before the moratorium was imposed. Thus, WFPG concluded, Pointe Prospect had no right to develop a PUD and, without such a right, Pointe Prospect cannot prove its inverse condemnation claim.
Pointe Prospect countered that a landowner has a constitutionally protected right to use and enjoy its land by developing it into a subdivision and that the submission of subdivision development plans is not a constitutionally significant event. Pointe Prospect contended that although WFPG had the power to impose a moratorium on development, the resulting damage to the property's value triggered constitutional protection. Pointe Prospect argues that its claim arises solely under the "or damaged" clause of La. Const. art. 1, § 4, meaning that analysis of whether there has been a compensable "taking" is irrelevant.
Under the Louisiana Constitution, claims for the taking of private property are distinct from claims for damage to private property. See La. Const. art. 1, § 4 (B)(1). "[P]roperty is ‘taken’ when the public authority acquires the right of ownership or one of its recognized dismemberments. Property is considered ‘damaged’ when the action of the public authority results in the diminution of the value of the property." Columbia Gulf Transmission Co. v. Hoyt, 252 La. 921, 215 So.2d 114, 120 (1968) (citations omitted). However, as Justice (now Chief Justice) Weimer observed in his concurrence to Avenal v. State, 2003-3521 (La. 10/19/04), 886 So.2d 1085, 1113, "in Louisiana, taking and damage claims are treated the same for most purposes." Whether based on a taking or damage claim, to establish inverse condemnation, the plaintiff must first establish that the rights he claims were affected constitute property or a recognized species of property right within the purview of an inverse condemnation claim. See State Through Dept. of Transp. and Development v. Chambers Inv. Co., Inc., 595 So.2d 598, 602 (La. 1992).
According to the Louisiana Constitution, "Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property ... subject to reasonable statutory restrictions and the reasonable exercise of police power." La. Const. art. 1, § 4 (A). Pointe Prospect contends that its right to use and enjoy its land includes the right to develop the land into a subdivision, citing the Supreme Court's statement in Chambers that "[t]he claimant [property owner] ha[d] a recognized and constitutionally protected property right to use and enjoy its land by developing it as a residential subdivision." Chambers, 595 So.2d at 600. Pointe Prospect fails to consider that the Supreme Court's statement was qualified on the State not having contended that there were any legal limits or conditions that would prevent the claimant from subdividing its land. Chambers, 595 So.2d at 603-04.
Here, there is no dispute that property development in West Feliciana Parish is subject to regulation by WFPG. Pointe Prospect acknowledges throughout these proceedings that its right to develop the PUD subdivision was entirely dependent on WFPG's approval. Under the provisions of the West Feliciana Parish Land Code, after approval of a rezoning and concept plan by the Parish Council, PUD approval required approval of subsequent subdivision plats and site plans consistent with the PUD concept plan. Additionally, all subdivision of land in the parish required submission of a preliminary plat, construction plans, and a final plat.
In support of its motion for summary judgment and to establish that Pointe Prospect's PUD development had not been approved at the time the ordinance imposing the moratorium was passed, WFPG submitted the affidavits of several WFPG officials, Emily Cobb, secretary for the West Feliciana Parish Council and executive assistant to the West Feliciana Parish President, attested that the property at issue had been rezoned and a PUD concept plan submitted with the rezoning application had been approved; however, the West Feliciana Parish Council had not considered or approved a preliminary plat. Jim Ferguson, the Director of Public Works and the Planning and Zoning Administrator for WFPG from March 2014 until March 2019, attested that at the meeting where the rezoning application was considered, he explained to Pointe Prospect's representative that a preliminary plat would need to be submitted to the West Feliciana Parish Council in accordance with the West Feliciana Parish Land Code. He clarified that the requirements of a preliminary plat were substantially more detailed than that of a concept plan, which was known to Pointe Prospect as it had developed another subdivision in West Feliciana Parish (Cedar Pointe). Gary Mego, WFPG's Planning and Zoning Administrator, attested that no preliminary plat was filed with WFPG before the ordinance imposing the moratorium was passed. Mr. Mego additionally attested that the PUD concept plan submitted by Pointe Prospect did not meet the requirements of a preliminary plat, noting that Pointe Prospect submitted the required preliminary plat in connection with the Cedar Pointe subdivision it developed in West Feliciana Parish. John Thompson, who was a member of the West Feliciana Parish Council when the PUD rezoning and concept plan were approved, similarly attested that, with regard to the property at issue, no preliminary plat was submitted for approval before the moratorium was imposed.
In his affidavit, Mr. Ferguson uses the terms preliminary plan and preliminary plat. Section 130-8 of the West Feliciana Parish Land Code expressly provides for the submission of a preliminary "plat."
WFPG additionally submitted excerpts from the deposition of Pointe Prospect's corporate representatives, Craig Gosserand and Derek Moreau. Mr. Gosserand acknowledged that in developing the Cedar Pointe PUD in West Feliciana Parish, both a concept plan and preliminary plat were submitted as required by West Feliciana Parish's approval process. Mr. Gosserand further acknowledged that Pointe Prospect's petition stated that the preliminary plat for the development at issue was considered by the West Feliciana Parish Council; however, he indicated the statement was "[a] typo" and that there was no intention to imply that a preliminary plat had been approved. The deposition testimony of Cletus Langlois, co-owner of the engineering and land surveying firm retained by Pointe Prospect in connection with the PUD development at issue, confirmed that his firm had not produced a preliminary plat for the PUD subdivision and that none had been submitted to the Parish Council for approval.
WFPG's summary judgment evidence establishes that Pointe Prospect has no inherent right to develop a PUD subdivision (or any subdivision) on the property it owns in West Feliciana Parish. Such right was entirely contingent on WFPG's approval in accordance with the regulatory scheme enacted pursuant to its police powers, which WFPG had not granted. Although it is clear that Pointe Prospect desired and expected acquisition of such a right, it did not have a constitutionally protected property right to develop a subdivision on its property at the time the moratorium was imposed. Compare Belle Co., LLC v. State ex rel. Dept. of Environmental Quality, 2008-2382 (La. App. 1st Cir. 6/12/09), 25 So.3d 847, 857 writs denied, 2009-1582 and 2009-1684 (La. 10/9/09), 18 So.3d 1291 and 1291 ; Berry v. Volunteers of America, Inc., 15-415 (La. App. 5th Cir. 12/23/15), 182 So.3d 1252, 1265, writ denied, 2016-0162 (La. 3/24/16), 190 So.3d 1193 Thus, WFPG successfully pointed out the absence of factual support for a necessary element of Pointe Prospect's inverse condemnation claim — that a recognized species of property right has been affected. See Saloom, 354 So.3d at 1182.
In opposition to WFPG's motion for summary judgment, Pointe Prospect submitted evidence of its plans for the property and the amounts it invested in its attempt to gain the necessary approval for the PUD development. However, Pointe Prospect's summary judgment evidence did not establish a genuine issue of material fact with regard to it having a recognized species of property right that has been affected. Nor did Pointe Prospect's evidence establish that WFPG is not entitled to judgment as a matter of law. Thus, Pointe Prospect's evidence was insufficient to defeat WFPG's motion for summary judgment.
For these reasons, WFPG is entitled to summary judgment dismissing Pointe Prospect's claims against it.
CONCLUSION
The judgment of the trial court is affirmed. All costs of this appeal are assessed to the appellant, Pointe Prospect, LLC.