Opinion
2013 CA 0093
02-13-2014
ST. TAMMANY PARISH WATER WORKS DISTRICT NO. 3 v. MARILYN P. ZACKIN
Paul E. Harrison C. deShea Richardson Harrison & Richardson Mandeville, LA Attorneys for Plaintiff-Appellee St. Tammany Parish Water Works District No. 3 Clint L. Pierson, Jr. Covington, LA Attorney for Defendant-Appellant Marilyn P. Zackin
NOT DESIGNATED FOR PUBLICATION
On Appeal from the 22nd Judicial District Court
Parish of St. Tammany, Louisiana
Docket No. 2009-17127, Division "H"
Honorable Allison H. Penzato, Judge Presiding
Paul E. Harrison
C. deShea Richardson
Harrison & Richardson
Mandeville, LA
Attorneys for
Plaintiff-Appellee
St. Tammany Parish Water Works
District No. 3
Clint L. Pierson, Jr.
Covington, LA
Attorney for
Defendant-Appellant
Marilyn P. Zackin
BEFORE: PARRO, GUIDRY, AND DRAKE, JJ.
PARRO, J.
The defendant appeals a trial court judgment, which authorized the plaintiff to expropriate certain property owned by the defendant in exchange for payment of the fair market value of the property. For the reasons that follow, we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This is an expropriation suit filed by St. Tammany Parish Water Works District No. 3 (the district) in order to obtain a three-acre tract of land in St. Tammany Parish owned by Marilyn P. Zackin, individually and as the trustee of the Ada Pailet Grantor Trust No. 2 (collectively, Zackin). The district primarily encompasses the Riverwood and Country Club subdivisions in St. Tammany Parish and has more than 800 residential and commercial hookups. The district is currently served by two wells and a 50,000-gallon storage tank, which were originally constructed in 1960.
In 2003, the district's board hired Joe Harman, a civil engineer, to update the existing water system in the district, as well as to help solve the problems the district was having with its water. Mr. Harman testified that, when he was initially hired, the board was concerned about the age of the water system, as well as its storage and fire capacity. However, at the trial of this matter, Mr. Harman and Ross Lagarde, the chairman of the board of the district and a resident of Riverwood subdivision, testified concerning other problems the board had encountered with the water in the district.
Both Mr. Harman and Mr. Lagarde testified that the water in the current system is a dark color due to the presence of manganese and iron. In addition, the presence of hydrogen sulfide gas in the water causes it to smell like rotten eggs. Mr. Lagarde further testified that, for the last several years, there has not been enough water coming out of the ground to supply the system; therefore, the pumps have been drawing a vacuum, and the water pressure in the system has fallen, especially in the summer months, when water consumption is at its highest.
In order to address these issues, the district purchased a 0.24-acre tract of land in 2003 for the purpose of building a new well and storage tank. This tract is located near the maintenance barn, which is adjacent to the current elevated storage tank situated on the Covington Country Club golf course (golf course). However, Mr. Lagarde testified at trial that the district encountered various problems while attempting to develop this tract for its intended purpose. According to Mr. Lagarde, after the district purchased the 0.24-acre tract, it discovered that there was no Phase 3 power running to the site, which was necessary to operate the pump to get the water out of the ground. In order to run Phase 3 power to the 0.24-acre tract, the district would have to spend extra money to purchase or expropriate a servitude under the golf course for the necessary power lines.
The district never obtained an appraisal of the servitude under the golf course for expropriation purposes; however, the owner of the property had requested between $90,000 and $100,000 as a purchase price for the servitude.
In addition to concerns about the lack of Phase 3 power to the site, Mr. Harman testified that there were concerns about the amount of room the district needed for building its new water system. Specifically, Mr. Harman testified that there was no room to drill a new well near the existing wells, which are near residences. He further noted that the current water system is high in manganese and iron. According to Mr. Harman, if high levels of manganese and iron were to be discovered in the water supply after drilling the new well, the water system would require a filtration system to address these impurities; however, there would not be enough room on the 0.24-acre tract to construct the necessary filtration system.
Sometime in July or August 2006, because of the concerns about the lack of Phase 3 power, the lack of space for a filtration system, and other issues, the district shifted its focus away from developing the 0.24-acre site. After considering several other sites, the district settled on the three-acre Zackin tract, which is the subject of the current expropriation proceeding, and which is more fully described, as follows:
That certain portion of ground, approximately three (3) acres parcel located in Section 37[,] Township 7 South, Range 11 East, St. Tammany Parish, Louisiana[.]
From the Southwest Corner of Lot 22, Country Club Estates, St. Tammany Parish, Louisiana run South 08 degrees 56 minutes 57 seconds West, 59.6 feet; thence North 83 degrees 05 minutes 17 seconds West, 2173.74 feet;
thence North 50 degrees 27 minutes 02 seconds West, 2200.63 feet; thence South 50 degrees 27 minutes 02 seconds East, 272.68 feet; thence South 39 degrees 44 minutes 08 seconds West, 132.00 feet; thence South 58 degrees 58 minutes 27 seconds East, 81.07 feet; thence South 42 degrees 42 minutes 24 seconds East, 232.78 feet; thence South 16 degrees 25 minutes 24 seconds West, 37.18 feet; thence continue South 16 degrees 25 minutes 24 seconds West, 30.48 feet; thence South 34 degrees 30 minutes 54 seconds East, 54.10 feet; thence South 07 degrees 55 minutes 55 seconds East, 19.30 feet; thence South 15 degrees 48 minutes 05 seconds West, 37.60 feet; thence South 57 degrees 41 minutes 56 seconds East, 71.20 feet; thence South 40 degrees 28 minutes 54 seconds East, 44.30 feet; thence South 27 degrees 41 minutes 55 seconds East, 69.90 feet; thence South 09 degrees 03 minutes 09 seconds West, 19.60 feet; thence South 57 degrees 40 minutes 05 seconds West, 25.70 feet; thence North 72 degrees 26 minutes 47 seconds West, 15.20 feet; thence South 29 degrees 03 minutes 04 seconds West, 41.80 feet; thence South 08 degrees 53 minutes 53 seconds East, 46.90 feet; thence South 23 degrees 00 minutes 55 seconds East, 76.20 feet; thence South 02 degrees 12 minutes 59 seconds East, 24.70 feet; thence South 67 degrees 56 minutes 06 seconds West, 54.60 feet; thence North 74 degrees 41 minutes 57 seconds West, 17.70 feet; thence North 51 degrees 41 minutes 47 seconds West, 10.10 feet; thence North 26 degrees 14 minutes 00 seconds West, 16.00 feet; thence South 40 degrees 00 minutes 05 seconds West, 22.20 feet; thence South 87 degrees 37 minutes 13 seconds West, 15.00 feet; thence South 14 degrees 59 minutes 55 seconds East, 219.90 feet; thence South 23 degrees 04 minutes 00 seconds West, 21.00 feet to the Point of Beginning.
From the Point of Beginning continue South 23 degrees 04 minutes 00 seconds West, 361.50 feet to a point; thence North 65 degrees 16 minutes 00 seconds West, 361.50 feet to a point; thence North 23 degrees 04 minutes 00 seconds East, 361.50 feet to a point; thence South 65 degrees 16 minutes 00 seconds East, 361.50 feet back to the Point of Beginning.
This tract contains 3.00 Acres.
As shown on the survey prepared by Jeron R. Fitzmorris, registered land surveyor, Land Surveying, Inc., dated October 27, 2006, last revised on May 5, 2009.
In 2009, the district put master meters on the two existing wells to determine how much water the district was actually using. Based upon these meter readings, Mr. Harman determined that the district required a storage tank that measured 59' in diameter by 32' in height. However, a deed restriction on the 0.24 acre tract provided that the water storage tank built on the tract could be no larger than 48' feet in diameter by 32' feet in height. Therefore, the 0.24-acre tract was not suitable for the district's purposes.
After determining that the Zackin tract was appropriate for building its water system, the district attempted to negotiate a purchase price with Ms. Zackin. After Ms. Zackin rejected the offer, the district filed the underlying petition for expropriation on December 3, 2009. After a trial, the trial court rendered judgment in favor of the expropriation and determined that the fair market value for the property was $215,000. It is from this judgment that Ms. Zackin has appealed.
Ms. Zackin has not appealed the fair market value established for the property.
EXPROPRIATION
The requirements for expropriation of private property are set forth in Article I, § 4 of the Louisiana Constitution, which provides, in pertinent part:
(A) Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.
(B) (1) 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. Except as specifically authorized by Article VI, Section 21 of this Constitution property shall not be taken or damaged by the state or its political subdivisions: (a) for predominant use by any private person or entity; or (b) for transfer of ownership to any private person or entity.
(2) As used in Subparagraph (1) of this Paragraph and in Article VI, Section 23 of this Constitution, "public purpose" shall be limited to the following:
(a) A general public right to a definite use of the property.
(b) Continuous public ownership of property dedicated to one or more of the following objectives and uses:
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(v) Public utilities for the benefit of the public generally.
Prior to its amendment by 2012 La. Acts, No. 702, § 1, LSA-R.S. 19:2 provided, in pertinent part:
Where price cannot be agreed upon with the owner, any of the following may expropriate needed property:Furthermore, LSA-R.S. 33:3811, provides that "[p]olice juries may divide their respective parishes into one or more waterworks districts ... as the police jury may designate." Additionally, LSA-R.S. 33:3815(A) provides that the "waterworks district may expropriate property for any purpose that it may find necessary in the operation of its waterworks system." As such, the district had the authority to expropriate private property where a price could not be agreed upon with the owner, Ms. Zackin.
(1) The state or its political corporations or subdivisions created for the purpose of exercising any state governmental powers[.]
The district is a political subdivision created for the purpose of exercising governmental powers pursuant to LSA-R.S. 19:2(1) and was created by section 22-036.00 of the St. Tammany Parish Code of Ordinances, This ordinance was passed pursuant to the authority granted to the St. Tammany Parish Police Jury in accordance with LSA-R.S. 33:3811.
In determining whether an expropriation is proper, the initial burden of proof rests with the expropriator, who must prove a public need or interest in the expropriation by a preponderance of the evidence. See Recreation and Park Com'n for Parish of East Baton Rouge v. C & S Development Inc., 97-2652 (La. 7/8/98), 714 So.2d 706, 707. The extent and location of the property to be expropriated are within the sound discretion of the body possessing the power of eminent domain, and these determinations will not be interfered with by the courts if made in good faith. Greater Baton Rouge Port Commission v. Watson, 224 La. 136, 140, 68 So.2d 901, 902 (1953).
Once the expropriating agency has met its burden of proof with regard to public need, the burden shifts to the defendant to show that the agency has abused its discretion in selecting the site; in other words, the landowner must prove that the legislatively-authorized expropriator exercised its large discretion arbitrarily, capriciously, or in bad faith. Recreation and Park Com'n for Parish of East Baton Rouge, 714 So.2d at 707; Red River Waterway Com'n v. Fredericks, 566 So.2d 79, 83 (La. 1990). Whether the expropriator's purpose is public and necessary is a judicial determination that will not be reversed on appeal absent manifest error. See Greater Baton Rouge Port Commission, 68 So.2d at 902. Furthermore, in the context of expropriation, "necessary" refers to the necessity of the purpose for the expropriation and not the necessity for a specific location. Exxon Mobil Pipeline Co. v. Union Pacific R. Co., 09-1629 (La. 3/16/10), 35 So.3d 192, 200; see also Calcasieu-Cameron Hosp. Service Dist. v. Fontenot, 628 So.2d 75, 78 (La. App. 3rd Cir. 1993), writ denied, 94-0168 (La. 3/18/94), 634 So.2d 854.
Public Purpose
In order to carry its burden of proof with regard to demonstrating a public purpose, the district provided the testimonies of Mr. Lagarde and Zeke Galloway, the manager/operator of the current wells for the district, who stated that they believed the district needed a new well. As noted previously, the wells that currently service the district were drilled in 1960. Mr. Galloway also testified as to the complaints he received about the water from the residents in the district, in his capacity as the manager/operator of the wells, including discoloration of the water due to the presence of manganese in the water, as well as low water pressure. These complaints, along with complaints of odor in the water, were further substantiated by Mr. Lagarde, a resident of Riverwood subdivision, as well as the minutes of the board meetings of the district. In addition, water quality testing has demonstrated the presence of manganese, sulfur bacteria, iron bacteria, and slime-forming bacteria in the water. Finally, Mr. Lagarde testified that the need to provide continued, uninterrupted water service to its customers was important to the district's decision to build a new water system.
Ms. Zackin called three expert witnesses to testify on her behalf. Neither of the two civil engineers, Oscar Boudreaux and Roy Waguespack, challenged the district's assertion that it needed a new well. The third expert, Brian Mistich, an engineer employed by the Louisiana Department of Health and Hospitals, Office of Health, testified that there were no major compliance issues with the district and that the government was not requiring the district to drill a new well.
Based upon all of the evidence presented at trial, the trial court determined that the district had established a public need for a new water system. After a complete review of the record, we find no manifest error in the trial court's finding that the district had established a public need.
Abuse of Discretion
The burden of proof then shifted to Ms. Zackin to demonstrate that the district had abused its discretion in selecting the three-acre Zackin tract for expropriation. An expropriating authority abuses its discretion when it "acts in bad faith, without adequate determining principles, or without reason." Recreation and Park Com'n for Parish of East Baton Rouge, 714 So.2d at 707, citing United States v. Carmack, 329 U.S. 230, 243, 67 S.Ct. 252, 91 L.Ed. 209 (1946). The criteria by which expropriating agencies should guide themselves include the availability of alternate sites, costs, environmental factors, long-range area planning, and safety considerations. An expropriating agency abuses its discretion by acting without considering and weighing the relevant factors. Recreation and Park Comti for Parish of East Baton Rouge, 714 So.2d at 707-08.
In support of her burden of proof, Ms. Zackin first argued that a new water system has not been required by any regulatory body or compliance order. However, the testimony and evidence in the record demonstrate that the district was attempting to address the problems it had been experiencing with capacity, water pressure, odor, and discoloration before there was an immediate need brought on by a regulatory requirement. Although the amount of land and the nature of the acreage taken must be reasonably necessary for the purpose of the expropriation, it is not necessary to show actual, immediate, and impending necessity for the expropriation. Exxon Mobil Pipeline Co., 35 So.3d at 200.
Ms. Zackin next contended that the abandonment of the 0.24-acre site for the three-acre Zackin tract was arbitrary. The evidence in the record demonstrates that the district placed master meters on its two existing wells in order to determine how much water its customers were actually using. Based, in part, on the water consumption showed by these master meter readings, the district concluded that it needed a specific size storage tank and that it needed the three-acre Zackin tract.
Mr. Boudreaux, one of Ms. Zackin's experts, contended that the district should have installed individual water meters on the individual hookups in the district in order to measure each customer's actual water usage rather than relying on the master meters. According to Mr. Boudreaux, the use of the individual meters could lead the customers in the district to conserve water. Mr. Boudreaux opined that, if the customers were to conserve water, the district might not need as large a storage tank, and, as a result, the district might not need to expropriate as large a piece of property. However, according to Mr. Harman, nothing in Mr. Boudreaux's testimony guaranteed that water consumption would go down as a result of the use of individual meters, and the district would have to spend between approximately $160,000 and $240,000 simply to install the individual meters to determine whether Mr. Boudreaux's theory had merit. Such measures were not cost-effective for the district, considering that the fair market value of the three-acre Zackin tract was $215,000.
According to Mr. Boudreaux, the individual meters would cost between $200 and $300 per hookup for each of the more than 800 homes in the district.
The record further demonstrated that the district had considered the use of other sites before settling on the three-acre Zackin site. In addition, the record indicated that the district had considered the present situation and planned ahead, in that it selected a tract of land where a filtration system could be constructed if necessary. After a review of the record, we conclude that the trial court did not err in finding that Ms. Zackin failed to establish that the district did not consider the relevant factors or that the district was arbitrary or capricious in the selection of the three-acre Zackin tract as the site for expropriation.
We note that, in one of her assignments of error, Ms. Zackin also contended that the trial court erred in admitting into evidence a log of customer complaints concerning the water system pursuant to the business records exception to the hearsay rule. See LSA-C.E. art. 803(6). Ms. Zackin argued that the customer complaint log was improperly authenticated, because the person who maintained the log was never called to testify regarding its authentication or its method of compilation. In addition, Ms. Zackin noted that the list of complaints was not in chronological order, which allegedly called into question the document's trustworthiness. Nevertheless, we pretermit discussion of this evidentiary issue, because there was sufficient evidence regarding complaints about the water system from other sources, without the necessity of referring to the customer complaint log. Accordingly, under the circumstances of this case, the admissibility of the customer complaint log is irrelevant to the resolution of this case.
DECREE
For the foregoing reasons, we affirm the judgment of the trial court, which authorized the expropriation by St. Tammany Parish Water Works District No. 3 of the three-acre tract of land owned by Marilyn P. Zackin, individually and as the trustee of the Ada Pailet Grantor Trust No. 2, with the following legal description:
That certain portion of ground, approximately three (3) acres parcel located in Section 37[,] Township 7 South, Range 11 East, St. Tammany Parish, Louisiana[.]All costs of this appeal are assessed to Marilyn P. Zackin, individually and as the trustee of the Ada Pailet Grantor Trust No. 2.
From the Southwest Corner of Lot 22, Country Club Estates, St. Tammany Parish, Louisiana run South 08 degrees 56 minutes 57 seconds West, 59.6 feet; thence North 83 degrees 05 minutes 17 seconds West, 2173.74 feet; thence North 50 degrees 27 minutes 02 seconds West, 2200.63 feet; thence South 50 degrees 27 minutes 02 seconds East, 272.68 feet; thence South 39 degrees 44 minutes 08 seconds West, 132.00 feet; thence South 58 degrees 58 minutes 27 seconds East, 81.07 feet; thence South 42 degrees 42 minutes 24 seconds East, 232.78 feet; thence South 16 degrees 25 minutes 24 seconds West, 37.18 feet; thence continue South 16 degrees 25 minutes 24 seconds West, 30.48 feet; thence South 34 degrees 30 minutes 54 seconds East, 54.10 feet; thence South 07 degrees 55 minutes 55 seconds East, 19.30 feet; thence South 15 degrees 48 minutes 05 seconds West, 37.60 feet; thence South 57 degrees 41 minutes 56 seconds East, 71.20 feet; thence South 40 degrees 28 minutes 54 seconds East, 44.30 feet; thence South 27 degrees 41 minutes 55 seconds East, 69.90 feet; thence South 09 degrees 03 minutes 09 seconds West, 19.60 feet; thence South 57 degrees 40 minutes 05 seconds West, 25.70 feet; thence North 72 degrees 26 minutes 47 seconds West, 15.20 feet; thence South 29 degrees 03 minutes 04 seconds West, 41.80 feet; thence South 08 degrees 53 minutes 53 seconds East, 46.90 feet; thence South 23 degrees 00 minutes 55 seconds East, 76.20 feet; thence South 02 degrees 12 minutes 59 seconds East, 24.70 feet; thence South 67 degrees 56 minutes 06 seconds West, 54.60 feet; thence North 74 degrees 41 minutes 57 seconds West, 17.70 feet; thence North 51 degrees 41 minutes 47 seconds West, 10.10 feet; thence North 26 degrees 14 minutes 00 seconds West, 16.00 feet; thence South 40 degrees 00 minutes 05 seconds West, 22.20 feet; thence South 87 degrees 37 minutes 13 seconds West, 15.00 feet; thence South 14 degrees 59 minutes 55 seconds East, 219.90 feet; thence South 23 degrees 04 minutes 00 seconds West, 21.00 feet to the Point of Beginning.
From the Point of Beginning continue South 23 degrees 04 minutes 00 seconds West, 361.50 feet to a point; thence North 65 degrees 16 minutes 00 seconds West, 361.50 feet to a point; thence North 23 degrees 04 minutes 00 seconds East, 361.50 feet to a point; thence South 65 degrees 16 minutes 00 seconds East, 361.50 feet back to the Point of Beginning.
This tract contains 3.00 Acres.
As shown on the survey prepared by Jeron R. Fitzmorris, registered land surveyor, Land Surveying, Inc., dated October 27, 2006, last revised on May 5, 2009.
AFFIRMED.