By Ernest A. Burguières
July 9, 2023
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 is an interesting case that was litigated in Federal District Court in New Orleans in 1986. Anthony P. Abraham sued the city, the city councilmen individually and the Planning and Zoning commissioners individually. The case shares similarities with the present debate regarding Sucette.
The basis of the suit was a zoning controversy triggered by Abraham’s proposal to construct a condominium project and hotel on Lake Pontchartrain in Old Golden Shores, which is on the west side of The Causeway. The site was the location of the old Golden Shores clubhouse area and it was zoned B-2 (Highway Business District) when Abraham’s building applications were submitted to the city in 1983. Shortly thereafter, the Mandeville City Council met and introduced an ordinance to re-zone the property to R-1 (Single Family Residence District).
The record reflected that the building inspector denied the application because of a failure to comply with several building requirements.
Abraham tried to cure the defects in the original building permit and re-submitted his application and requested that a permit be issued.
The chairman of the Planning and Zoning Commission recommended that the permit be denied because of questions as to whether multi family housing was permitted on property zoned B-2 which was surrounded by single family residences.
Abraham then revised his plans and submitted an application to construct a hotel complex on the site.
During this time there is a strong suggestion that the area residents were very much opposed to this development.
A new temporary building inspector, who had not been confirmed the City Council, approved the application to build a hotel along with several other permits which were pending in November of 1983.
In December, 1983 the Council ratified the appointment of the temporary building inspector, but revoked all of the permits issued by him because he had not been confirmed at the time he issued all of the permits.
At the same December meeting the Council passed a resolution declaring a moratorium on the issuance of any building permits regarding Abraham’s property until a pending ordinance to re-zone that property from B-2 to R-1 had been considered.
At a February, 1984 the Planning and Zoning Commission held a public hearing on the proposed re-zoning ordinance to Abraham’s property. The Planning and Zoning Commission recommended that the property be re-zoned from B-2 to R-1. Abraham was present at the Commission hearing. Many residents appeared and voiced support for the zoning change. Residents and city officials expressed concern about preserving and maintaining the residential character of the area.
In March, 1984 the City Council acted on the Planning and Zoning Commission’s recommendation and unanimously voted in favor of the ordinance to re-zone the property to R-1. This action killed Abraham’s project.
Uncontroverted affidavits submitted by officials of the Planning and Zoning Commission and the City Council reflected that the decision to re-zone the property was based on overwhelming support by the residents of the City of Mandeville, the general welfare of the community, the adverse impact that Abraham’s proposed hotel development would have on the residential character of the neighborhood surrounding the subject property, and the adverse impact of such commercial projects on the density, sewerage, water and roadway systems of the surrounding neighborhood.
Abraham had not sought a zoning variance or any other relief. He did file suit in Federal Court claiming constitutional violations and sought that the R-1 zoning ordinance be stricken plus damages.
The City of Mandeville and the other defendants sought a summary judgment against Abraham seeking to dismiss his lawsuit on the basis of a U.S. Court of Appeals for the Fifth Circuit decision in the case of Shelton v. City of College Station, 780 F.2d 475 (5th Cir 1986) which included a rehearing en banc. (Normally a Fifth Circuit hearing is comprised of a panel of three judges. An en banc hearing is where all of the judges of the Fifth Circuit participate.) The Shelton case involved alleged substantive and procedural due process and equal protection violations just like in Abraham. The en banc ruling was that there was a rational basis for the decision of the local College Station zoning board.
Writing for the majority, Judge Higginbottom stated that:
“[I]n the absence of invidious discrimination, suspect classifying criteria, or infringement of fundamental interests”, all of which are absent in this case, judicial review of municipal zoning decisions “is confined to whether the decisions were ‘arbitrary and capricious’ “.
“[t]his requirement of substantive due process under the Fourteenth Amendment … is met if there was any conceivable rational basis for the zoning decision”.
“federal judicial interference with a state zoning board’s quasi-legislative decisions … is proper only if the governmental body could have had no legitimate reason for its decision”.
The key inquiry”, the Court states, “is whether the question ‘is at least debatable’ … If it is, there is no denial of substantive due process as a matter of federal constitutional law.” Id. That is the test we must apply here.
The Shelton Court summarized the appropriate manner of review of a municipal zoning decision as follows:
“Entailed in the [prior] panel’s conclusion that there are in this case issues of fact for a jury, is the further conclusion that a jury might properly find that there was a rational basis for the zoning decisions. Under the legislative model, which asks whether the factual question was at least debatable, the district court’s grant of defendant’s motion for summary judgment was a fortiori proper. Detailing the record evidence is therefore an unnecessary exercise.”
As a result, the Abraham Court found no evidence to support Abraham’s contention that the denial of a permit for this project was arbitrary and capricious.
The uncontroverted testimony was that the application was rejected for failure to comply with several local building requirements. This provided a conceivable rational basis for the City’s decision. Concern over unresolved questions regarding interpretation of the local zoning ordinance articulated a recognition of the general welfare of the community and provided a rational basis for their decision.
The Abraham Court also found that:
“the Council’s decision to declare a moratorium on the issuance of any building permits regarding plaintiffs’ site until the pending ordinance to re-zone the property had been resolved one way or the other was also a fair exercise of its police power, and was indisputably related to the general welfare. Passage of an ordinance which in effect invalidates a pending building permit is an ordinary and necessary power of local zoning bodies”.
The Fifth Circuit commented that it had previously recognized that:
“[t]he power to channel growth through zoning is ‘one of the firmest and most basic of the rights of local control’ … and where a community expresses that power as part of ‘a rational and understandable effort to deal with a perceived evil’, … a federal challenge cannot be sustained in the district court”.
Local zoning officials and bodies are most familiar with the public needs and with evaluating the peculiar suitability of particular land area uses. This Court has no mandate to supplant or alter the legislative judgment. Further, interim “[i]nterim development controls such as … moratorium have been found to play an important role in municipal planning” because “[t]hey aid in ‘bridging the gap between planning and its implementation into legal measures.’”
The City of Mandeville won.
What is interesting here is that the Mandeville City administration and the Mandeville City Council united around the significant local opposition to this project. Is the state of the law the same today as it was in 1986? I don’t know, but given the detail in this decision it is certainly worth a look. I think the City’s actions in Abraham were much more egregious than any acts taken in Sucette. Some may look to the Port Marigny case, but there are a host of issues that are very different in the way that case was litigated, and its result, that make it a poor precedent for reference.
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