It’s been a long time coming, a lawsuit against Ascension Planning Commission for denial of a subdivision preliminary plat. Not since the body’s denial of a plat proposed off C Braud Road in 1996 has the commission been sued even as preemptory threats of litigation have been made, a cudgel to cow commissioners into compliance. In March a 4-3 vote by the seven-member commission denied 237-lot Antebellum Pointe anyway, and the property owners filed that lawsuit on September 9.
After a name change to Delaune Estates, the Delaune family sued the commission and the Parish Council which, in its capacity as the Planning Commission Appeals Board…
upheld the denial by a 6-4 vote on July 26 (two votes shy of the requisite supermajority to overturn a decision of the Planning Commission). Plaintiffs are seeking to have the court overturn the denial or award money damages for loss of sales proceeds by illegal “regulatory taking.”
The Delaunes’ suit alleges:
“The adverse finding by the Planning Commission and the Board of Appeals’ decision…are contrary to the facts and applicable law, are not supported by the evidence, and are arbitrary and capricious.”
As with any case, the applicable standard of review is all-important. Back in January of 2016, a month before the commission denied Brookstone Subdivision, Legal Counsel Cody Martin was asked to explain. Since the commission had approved so many suspect subdivision plats before, would it be arbitrary to deny one because Drainage/Traffic Impact Studies had not been approved?
Citing Homeowner/Contractor Consultants, Inc. v. The Ascension Parish Planning & Zoning Commission (the case referenced above), Cody Martin explained:
“No, as long as you cite your reasons for denial; general health, safety and welfare of the public. The function of the Planning Commission is to enforce existing regulations. The code does say that you have to have approved drainage and traffic studies.
So, if you want to deny on that basis, you’re okay to do it.”
Martin would elaborate, advising commissioners to provide the reasons for denial grounded in code enforcement. Unless commissioners are determined to have acted in an “arbitrary and/or capricious manner” the courts are loathe to overturn their decisions. Statistically, these are tough cases to win for plaintiffs.
Traffic and drainage impact studies required of every subdivision preliminary plat have been made more stringent by the Parish Council since Martin offered the legal analysis; a far cry from his predecessors.
Before Martin took over the office Planning Commissioners were confronted with threats of personal liability in the guise of legal advice. One prior Planning Commission attorney informed members that the parish would not pay to defend individual members against personal liability, and would not indemnify them against monetary judgments.
Four Planning Commissioners voted to deny Antebellum Pointe on March 11 based on two issues; insufficient mitigation in its Traffic Impact Study and uncertainty with regard to the proposed subdivision’s sewer treatment. The development proposed to “provide new sewer lift stations to force main influent to a parish owned treatment facility.” Unfortunately, there is no parish-owned treatment facility to accommodate the project, sewer lines along Hwy 73 are not connected to any treatment plant.
Even Ascension’s Planning Staff, normally a rubber-stamp for development, found unresolved issues. According to Staff…
“Subdivision Guidelines are met with the exception of Level of Service deficiencies noted in the traffic study and Engineering Review Agency report. Unless mitigating measures are implemented by LA DOTD the project will NOT comply with code requirements.” (Emphasis in original).
Antebellum Pointe’s Traffic Impact Study relied upon improvements to Interstate 10 and proposed, though never requested, turn signalization on Hwy 73.
1. There are approach roads operating below a LOS of D in future improved conditions for both AM and PM Peaks. Provide recommendations to bring LOS to down to D or better. A possible solution was provided but was based on signal timing options that DOTD would not recommend due to taking away green time from the higher classification roadway of La 73. (Emphasis in original).
Seizing upon Staff’s assessment four commissioners variously cited:
- Failure to meet Traffic Impact Study standards
- Level of Service at four subject intersections worse than “D” (which affords the ability to deny)
- A reduction in the Level of Service (another reason to deny)
- Uncertainty in mitigation by added capacity on I-10
- Uncertainty with regard to sewer treatment
When the Council/Appeals Board considered the matter on July 26 Councilman Chase Melancon recognized the reasons for initial denial by the Planning Commission: the intersection at Hwy 73/White Road dropped to a Level of Service “E” while Subdivision Regulations require “D” or better. Unwilling to accept that I-10 improvements would rectify the issue, Melancon proposed to defer the plat and “a new Traffic Impact Study when the third I-10 lane opens.” By that time a new school and hospital would be open too, and “we can prove, with actual cars” if the proposition is accurate.
Is the reasoning arbitrary and/or capricious?
In the Homeowner/Contractor Consultants case, won by the Planning Commission and its 11 members sued individually, federal District Court Judge Frank Polozola stated the question another way. Was there “a rational basis for the Planning Commission’s refusal to approve the plaintiff’s preliminary plat?”
Qualified immunity “may be asserted even though the official violates a person’s civil rights, provided the conduct was objectively reasonable.” Personal liability of commissioners and/or council members is an idle threat.