By Ernest A. Burguières
Ernest A. Burguières is a Mandeville attorney who formerly served as District III Councilman. Mandeville Daily is honored to publish Mr. Burguières’ column with permission which is a combined reporting of the goings on in Mandeville government with his personal commentary.
This past week several citizens pooled resources and hired a New Orleans attorney, Justin Schmidt, who specialized in zoning matters. Mr. Schmidt submitted a report to the Mandeville City Council ahead of its Thursday, June 8th meeting. This 8 page report discussed many issues that most of us were familiar with and a few that we weren’t familiar with. A copy of this report is attached.
Of interest today is the attachment to this report of a recent case entitled Truitt v. West Feliciana Parish Government, 299 So3d 100 (La. App. 1 Cir. 2020) Mr. Schmidt handled this case on behalf of the plaintiffs (citizens) and against West Feliciana Parish Government.
There are several things that are interesting about this case. It is out of the First Circuit Court of Appeal which is located in Baton Rouge, Louisiana. The First Circuit includes the 22nd Judicial District Court which is in St. Tammany Parish. The First Circuit establishes case law for the First Circuit that is not otherwise governed by the Louisiana Supreme Court. The district Courts in the 22nd Judicial District Court are expected to follow the decisions of the First Circuit Court of Appeal.
The plaintiffs in Truitt owned property that abutted a parcel whose landowner sought to re-zone his property from residential agricultural to general commercial. From the description this contentious matter was not unlike what is occurring in Mandeville with Succette.
The West Feliciana Parish Planning and Zoning Commission and the West Feliciana Parish Council decided in favor of the re-zoning. A group of citizens appealed to the district court. The district court ruled against the citizens and the citizens appealed to the First Circuit Court of Appeal in Baton Rouge.
The First Circuit Court of Appeal overruled the Planning Commission, the Parish Council and the District Court finding that they had acted arbitrarily and capriciously in recommending approval of the Zoning Map Amendment.
There were numerous allegations made by the plaintiffs against the West Feliciana Parish Government through the Parish Council, the Commission and their respective staff to include:
- a select number of Commission members lacked the requisite number of training hours;
- a commissioner made a public misstatement of law at a commission meeting;
- a member of the Parish council and the Parish President made public statements in favor of the zoning map amendment;
- the Commission and Parish Council relied, inappropriately, on an oral promise from the zoning applicant about how the subject property would be used;
- a Council member worked with the zoning applicant in advance of the public hearing;
- the Commission failed to consider or suggest that a Planned Unit Development District be implemented;
- the Commission and Parish Council failed to consider review criteria relevant to the West Feliciana Parish Ordinances and a zoning map amendment; and,
- the Commission and Parish Council failed to consider the West Feliciana Parish Comprehensive Plan (“master plan”) in violation of La. R.S. 33:109(B).
The West Feliciana zoning regulations required that the Planning and Zoning Commission:
consider the recommendations of the administrator, Commission, relevant comments of all interested parties and the above-mentioned review criteria
Additionally, zoning regulations required that the Parish Council:
consider the recommendations of the administrator, Commission, relevant comments of all interested parties
The plaintiffs alleged that there was no evidence in the Planning and Zoning Department’s internal records on the proposed zoning map amendment and therefore the record was “completely devoid of any formal or informal notes, observations, written reports, minutes from internal discussions … or a more formal written preliminary staff report,” which would indicate that a good faith effort was made to comply with regulations, and that the Parish Council took action on the zoning map amendment without considering the review criteria.
When you read the 8 acts or omissions that the plaintiffs complained about you may see issues that are similar to Mandeville and Succette. Laymen (and attorneys) often have difficulty in tying a particular act or omission to arbitrary or capricious behavior. However, public statements in favor of the zoning map amendment, prior to the hearing, amount to pre-judging a matter which is a clearer example of arbitrary and capricious conduct.
If instances such as an elected official publicly proclaiming support for a project ahead of a hearing demonstrates a pre judging that constitutes arbitrary and capricious behavior in a subsequent vote, does that apply to Mandeville? See item 3 in the 8 West Feliciana issues above.
If it is arbitrary and capricious, how does the city of Mandeville deal with such an issue ahead of time to neutralize the issue? If the City Attorney is aware that a public official has made pre-judging statements that were published (https://neworleanscitybusiness.com/blog/2021/11/04/studies-underway-for-proposed-150m-mandeville-retirement-community/ ), and the City Attorney was also aware that such a pre judging public statement may have constituted arbitrary and capricious behavior on the part of the West Feliciana Parish Council in a recent case, what does the City Attorney of Mandeville advise? That the public official recuse themselves from the decision? I wonder what the city attorney’s advice would be?
Zoning issues are not something most people come into frequent contact with, even attorneys like myself. That said, all of these cases look to reasonable behavior. In looking at Mr. Schmidt’s letter to the council he points out several simple, straightforward issues that are not rocket science. They are common sense.
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