On April 7 counsel for the litigants in Delaune, et al. v. Ascension Planning Commission, et al. participated in a Telephone Statue Conference in anticipation of an April 15 meeting of the Parish Council. Whatever was discussed, plaintiffs offered to settle if the council approved the twice-rejected preliminary plat of Antebellum Pointe (subsequently renamed, Delaune Estates). A 6-5 council vote to accept, followed by a presidential veto, and the settlement offer rescinded; what’s next Delaune Estates?
The 237-lot subdivision preliminary plat was denied by Ascension’s Planning Commission on March 11, 2020; which withstood an appeal to the Parish Council’s (convened as the Appeals Board) when a supermajority failed to materialize on July 27, 2020…
Then, on September 10, 2020 the Delaune family sued Ascension Parish, its Council and Planning Commission, along with President Clint Cointment personally. The defendants were not served with a copy of the Petition for Judicial Review, for Declaratory Relief and for Monetary Damages until December 9, and have yet to file an answer. That is because the plaintiffs knew they had a steadfast contingent on the Parish Council sympathetic to the cause, surely something could be worked out.
One council member has even expressed the hope that they “get a boatload of damages” payable from Ascension Parish and its taxpayers. But President Cointment, who opposed the subdivision at every turn, had the veto and there were not eight council members necessary to override his veto, nor overturn the Planning Commission’s denial of the preliminary plat.
The Delaunes have a purchase agreement with land developer, Lynn Levy Land Company of Greenwell Springs, which offered to knock ten lots off the subdivision in the spirit of compromise. Once it became obvious that the Cointment veto would stand, that offer was rescinded so the parties to the lawsuit are back where they started; no answer filed by any defendant and no timetable for resolution in mind.
How vigorous will the plaintiffs pursue their Prayer for Relief? The Delaunes want a Judgment:
“…remanding this matter to the Ascension Parish Council with a directive to approve Plaintiffs’ Delaune Estates Major Subdivision Preliminary Plat, and, in the alternative, to award Plaintiffs damages including the full extent of their losses, plus attorneys’ fees, experts’ fees and costs and for all other relief available under the law and the facts.”
The problem they face…these types of cases are notoriously difficult to win. The standard, well-established in Louisiana, is to prove that the action taken by the Planning Commission on March 11, 2020 was arbitrary and capricious. That is quite a heavy lift.
When the Council considered the settlement offer on April 15, eight days ago…
a Traffic Impact Study performed several months after the Planning Commission’s preliminary plat denial was part of the six-member majority’s reasoning. Unfortunately for the Delaunes, the new traffic study is irrelevant for the factfinder tasked with determining whether or not the Commission’s decision was arbitrary and capricious 13 months ago. The new traffic study is not admissible evidence for that purpose.
That is, more than likely, why the Delaunes offered settlement in the first place.
One of their champions, Councilman Aaron Lawler has alibied his change of heart (he voted against overturning the Commission last July, then for settlement last week), explained, in part…
“The lawsuit will be removed to Federal Court. This is important because, contrary to what many have been mislead to believe, a Federal Court judgment on this issue can be satisfied without approval of the parish council, meaning that the winning party could seize tax dollars that could be used for infrastructure improvements to satisfy the judgment. The process in Federal Court is fast, but costly. The parish will spend valuable dollars, likely over 100k, defending this. Personally, I don’t think our chances for success are overwhelming, so we may be stuck with a 237 lot subdivision (not 227), legal bills and payment of damages that could be any where from $1.00 to around $8,000,000.00. (Our annual transportation budget is about 8 million). I thought, in light of the fact of the new TIA, it was more prudent approve a settlement for fewer houses, no risk and no more lawsuit.”
If the parish faces “likely over 100k” in costs, so do the Delaunes. And their burden of proof in federal court is just as heavy. Was the Planning Commission’s decision on March 11, 2020 objectively reasonable?
If the remedy is so much more advantageous in federal court, and the burden lighter, why did the Delaunes file in state court in the first case. Their attorney, Michael Clegg, surely would have advised them to forum shop where they held a better hand. If Lawler is correct, the Delaunes should be shopping for a different lawyer.
Lawler went on to add…
“Why not send this back to (the Planning Commission)? Sending this back to (the Planning Commission), where it would likely pass since it now meets all requirements, would not result in the dismissal of the lawsuit. This would likely result in the subdivision being approved, but the parish still being sued and therefore having to incur the costs of litigation and the associated risks.”
If he’s correct, then the Delaunes will have suffered little, if any, damages. Lawler’s allusions that they sell their property and recover additional amounts are delusions because, absent a showing of bad faith by the council, they are only entitled to be made whole, i.e. put back in the position they would have enjoyed had the preliminary plat been approved (which we do not mean to suggest should have happened).
What will happen (Lawler has this one right); the plat will be resubmitted to Planning as more than 12 months have elapsed since the initial denial. A consistent “NO” vote on the commission, Richard Carmouche was removed from the Commission…
so Delaune Estates probably has the votes (whether the new traffic study meets codal requirements or not).