Delaune Estates approval a foregone conclusion tonight, but it may not be over

Vote to overturn Denial of Antebellum Pointe (July 16, 2020)

Ascension’s Parish Council will go into Executive Session (again) tonight to consider settlement of the lawsuit brought by the owners of property intended for Delaune Estates (formerly Antebellum Pointe) Subdivision.  Settlement, effectively, means a council vote to approve the original preliminary plat rejected by a 4-3 vote of the Planning Commission on March 11, 2020.  Requiring a simple majority of its membership, six votes, it is safe to assume an affirmative outcome for the plaintiffs this evening.

The subject lawsuit seeks to have the court “remand” the matter back to the Parish Council with “a directive” to approve Delaune Estates’ preliminary plat; or a judgment in the amount of $7,042,985 which Lynn Levy Land Company offered to purchase the 86(+) acre tract at $81,500 per acre.  The Delaunes argue that inability to sell the family acreage for development, its best economic use, renders the property fit only for agricultural use, a severe diminution in value.

Six members of the council, convened as the Planning Commission Appeals Board, already voted to approve the subdivision on July 16, 2020 (see image above).  But an 8-vote supermajority was necessary to overturn the Planning Commission.  The Delaunes sued the Planning Commission, the Council, the Appeals Board and Parish President Clint Cointment on September 9, 2020.

Rumors flying fast and furious this week, nothing has transpired to indicate those six votes to overturn the Planning Commission have had a change of heart.  The smart money has Councilman Aaron Lawler crossing over to the winning side, back home in the Council’s pro-development caucus tonight.  Assuming he is the only defection, adding in Councilman Joel Robert’s near certain negative vote, and the final tally is 7-4 to approve Delaune Estates’ plat

Things become real interesting if President Cointment decides to exercise his veto power (and he has publicly opposed approval).  The possibility is being discussed, though not by Cointment who has not tipped his hand one way or the other (we asked).  Would a council vote to settle the suit even be subject to presidential veto?

That debate is ongoing.  If that were to happen the onus falls squarely on Councilman Dal Waguespack whose harder to read than any other member.

The council majority narrative justifying approval of Delaune Estates has already been written.  When they return from Executive Session someone, most likely one of the council’s three lawyers , will explain that the body’s legal counsel has advised approval to avoid the catastrophe of losing a lawsuit which he will lament as a foregone conclusion.  There will be no public explanation or analysis of the legal merits; just doom, gloom and perilous prophecy.

Of course, citing pertinent statutory authority or jurisprudence for the proposition will be impossible due to the council’s extraordinarily over-expansive understanding of attorney-client privilege.  Fortunately, one need look no further than initial “Petition for Judicial Review, Declaratory Relief and Monetary Damages” wherein the plaintiffs accurately state the operative standard of judicial review and burden of proof.  From Paragraph 25 of that petition:

“As a court of review, this Court should determine whether Defendants acted arbitrarily, capriciously, or with an calculated or prejudicial lack of discretion (citing a 2013 case, Zachary Housing Partners v. City of Zachary).  The test of whether an action by a local governmental body is arbitrary and capricious is whether the action is reasonable under the circumstances (citing 1995’s Papa v. City of Shreveport).”

From Paragraph 26:

“Zoning and planning regulations must be construed in favor of the use proposed by the owner (D’Argent Properties, LLC v. City of Shreveport-2009).  There must also be sufficient evidence to support the denial of a preliminary plat by a planning commission or the decision will be regarded as arbitrary and capricious (Christopher Estates v. East Baton Rouge Parish-1982).”

Each of plaintiffs’ four Causes of Action rely on the legal conclusion that Planning’s (then the Council’s acting as Planning Commission Appeals Board) decision was “arbitrary and capricious.”  Plaintiffs recognize the reason for denial by the Planning Commission (Paragraph 39):

“The primary professed basis for the Planning Commission and Council’s Decisions was a concern about the impact on traffic that may result from the development of Delaune Estates.”

But they go on to assert a legal conclusion…

“(T)he Traffic Impact Analysis performed with regard to the Delaune Estates showed that the pertinent intersections would score a ‘overall’ ‘D on the Level of Service (LOS), thereby complying with all applicable laws.  The Parish’s Traffic Impact Analysis (TIA) Policy provides, in pertinent part, that ‘The objective of the APPLICANT shall be to maintain or improve the existing LOS.  An overall LOS ‘D’ shall be considered acceptable.'”

Fair enough…but the petition omits one key element of Planning’s 4-3 denial.  It was based, in large part, on the Traffic Impact Analysis’ reliance on changing signalization at multiple Hwy 73 intersections.  There was nothing in the meeting packet to evidence Louisiana DOTD’s authorization to alter signal timing, which led Commissioner Aaron Chaisson to summarize the March 11 majority’s opposition.

“Under the new Traffic Impact policy you’re required to mitigate (adverse impact) to a (Level of Service) ‘D’ or better; and you can’t.  You’re required to, not just suggest something, but implement something; and you can’t do that either without DOTD’s approval.  And, even if they give you the approval it’s still gonna be below a ‘D’?”

Was the majority’s conclusion, that Traffic Impact Analysis requirements were not met, arbitrary and capricious?  The answer to that question is determinative of the entire litigation; or would be if the Council allowed the decision to be made by Judge Jason Verdigets whose Division A, 23rd Judicial District Court drew the short straw in the randomly-allotted case assignment.

The defendants have yet to answer plaintiffs’ petition, at least there is no indication that they have done so on Ascension Parish Clerk of Court’s website.  Not unusual when the parties agree in an attempt to resolve a litigation and avoid incurrence of exorbitant costs.  (Which is why taxpayers are having to pay for the new courthouse.  We digress).

Supposedly, Louisiana DOTD has approved, or will approve, altering signalization times at those Hwy 73 intersections.  Which is being discussed by council members.  While that would affect deliberations by the Planning Commission when/if the preliminary plat is ever re-filed for Planning Commission consideration (it is eligible now), it would not be admitted into evidence for the court to consider.  The standard of review remains, was the Commission’s denial “arbitrary and capricious” on March 11, 2020?