Kreller amendments will need to be corrected

Editorial

Something’s not quite right when it comes to the wording of the Sucette Harbor ordinance after recent amendments were added in an attempt to join together parcels D and U.

Developers had once hoped to build a sprawling hotel, events center, adult living apartments, and marina on Mandeville’s western lakefront on land donated to the LSU Health Foundation by Al Copeland Jr.

The proposal has run into staunch opposition by some on the council, who passed an amendment cutting the number of apartments roughly in half at a special meeting July 12th. This led to acting Council Chairman Councilman at Large Rick Danielson pumping the brakes on further amendments at the next meeting July 24th when the developer floated the idea of not even building the new marina if the apartment limit stays at 90 units.

Aside from all this fuss, District II Councilman Dr. Skelly Kreller’s amendments July 12th, attempting to join Parcels D and U together after developer Woodward Interests agreed to the move at the July 5th meeting, have created a bit of a technical mess in the wording of Ordinance 23-16.

Kreller used “Whereas” clauses to require or direct action by the City or Planning and Zoning Commission. A “Whereas” clause should only explain a motivation behind an ordinance or cite what gives the City the authority or reason for doing what’s in the ordinance.

Mandeville Daily believes the ordinance has the following problems:

So all in all, Ordinance 23-16 is one hot mess. Maybe things will get cleaned up at the next scheduled special meeting August 15th. But then again, maybe they won’t.

-30-

Danielson halted new amendments and conditions

Effort to ‘filter’ which amendments come to a vote

Previously wanted city attorney, planning director to approve amendments prior to meeting

Afforded developer chance to deliver marina ultimatum to Mariner’s Village residents

Updated July 27, 2023, at 5:40 a.m.: Cleans up language for clarity; Adds artwork for agendas from July 12th and July 24th.

Editorial

The surprise change of format at Monday night’s special meeting (July 24th) on Sucette Harbor was designed to do two things — to provide a filter for which amendments can make it to the floor, and to allow the developer to deliver an ominous warning to those pesky and intractable property owners in Mariner’s Village: Give us the 120 units we want, or you don’t get your marina.

The property owners in Mariner’s village, particularly those along the body of water, would naturally welcome the installation of bulkheads and dredging to stabilize the shoreline, hence protecting their investments.

Woodward Interests President Bill Hoffman seemed to be counting on that as a means hopefully to peel away at least one vote from Los Tres Amigos — council members Jason Zuckerman, Rebecca Bush and Jill McGuire, who have formed quite a beachhead against what they characterize as high density development.

“We said from the beginning we thought the marina was an amenity… We would request some consideration on this,” Hoffman said.

So it now appears that Hoffman’s highly anticipated countermove to having been pelted with conditions and a near-fatal-blow from an amendment that cut the apartment number in half, was to get Councilman at Large Rick Danielson to surreptitiously change the format of the meeting, halting all new amendments and conditions, and holding all public comments until the end.

Pushback to meeting format change

The only clue that something was going to be different this meeting may have been signaled in the subtle yet significant differences in the published agendas from July 12th versus July 24th. (See images below.)

Not everyone was peachy with the change of format. Councilman at Large Jason Zuckerman voiced his objection right away.

“I’m not in favor of sort of taking a pause and backtracking. … I’m ready to keep moving forward with discussion on amendments, so that we can send the developer on their way to get a site plan together that reflects that and can be attached to an ordinance. That’s my two cents.”

Danielson replied that he thought if there could be a meeting where they simply discussed potential amendments with the developer first so that they could come back later and let them know if they were workable, it would be a more efficient way of proceeding instead of just voting the same night.

“Part of the reason for the discussion this evening is, for possible amendments or conditions that would be proposed, that the applicant and the council and the planning department could look at those things to look at what the different impacts could be before a vote is taken on those items,” he said.

Ad hoc ‘veto’ power over bad amendments

This retort revealed that Danielson had simply found another way to accomplish a tactic he had floated at the end of the July 5th special meeting when discussing how amendments and conditions would be handled at the upcoming July 12th special meeting.

He had suggested that council members should submit their potential amendments to City Attorney Elizabeth Sconzert and Director of Planning and Development Cara Bartholomew in advance so that they could reduce the list down to only those amendments they deemed as workable. District III Councilwoman Jill McGuire shot down that idea almost immediately.

On July 5th Danielson suggested, “Any possible conditions or amendments that we want to make need to be submitted for review to make sure they can be voted on. So if we have something we need to send it through Ms. Scherer (council clerk) so it can get through Ms. Bartholomew and Ms. Sconzert before the next meeting so if it’s applicable…”

McGuire interjected: “I’d rather do it in the public.”

But Danielson kept trying: “We’d be doing it in the public, but if there are some things like, no, no, no, you can’t even talk about that, then we don’t need to bring it up.”

Thankfully, McGuire prevailed.

There’s a reason for Robert’s Rules of Order when it comes to members of a body — the elected City Council members — being able to exercise their authority to offer amendments without having them, for lack of better term, censored first.

There’s no issue with a city attorney checking amendments for legal purposes when they’re offered, but that must happen in view of the public. It is part of the deliberative process which the Louisiana Open Meetings Law says is open to the public.

Sconzert has been seen by many thus far as being very pro-developer in this case. Having all amendments go through her first — privately and before a meeting occurs — would have been beyond the pale.

Only elected council members have the authority to offer and vote on amendments. Danielson’s tactics — both what he floated at the July 5th meeting and what he ended up doing July 24th — attempted to insert a “veto” step into the process. In the case of the former, it would have given an appointed official — the city attorney — a veto over potential amendments. The latter — what happened July 24th — was intended to hand that same ad hoc veto power to the developer instead.

Tactics out of order

These tactics are out of order and there is a strong case to be made they are an outright violation of Robert’s Rules, the city charter, not to mention state law. There is no provision in state law that says an appointed official or an applicant before a municipality gets to pick and choose which amendments come to a vote. This would be a usurpation of the authority vested in these council members by the people.

At the close of the previous special meeting on July 12th, the plan was to pick right back up with more amendments and conditions. In fact the last act Danielson did during that meeting was to defer a condition Zuckerman was trying to add that night until “our next meeting on July 24th.”

The presumption was that we had entered the final phase of the process, and amendments and conditions would lead directly to a final vote. Up or down, this long nightmare of a process would finally come to an end.

Nope. Not when you’re the acting council chairman. Pick your metaphor. Standing eight-count. Moving the goalposts. Hand on the scales of justice. It happened. More accurately, nothing happened at the meeting. It was all filler to allow Hoffman to unload about the marina having always been expendable, and to hopefully pare down potential amendments to only those favorable to the developer.

Adding insult to injury was Danielson at times stepping on his fellow council members, stopping them mid-sentence to allow an already filibustering project attorney Paul Harrison to continue. Danielson never seems to cut off Harrison when he interrupts Zuckerman or McGuire.

He never seems to show frustration when Sconzert or Bartholomew roll their eyes and make faces at elected council members when forced to answer contentious questions.

Danielson never showed any angst at the May 25th meeting when Harrison threatened to sue anyone and everyone “the next day” if they make an “insinuation” about his integrity. Not a peep. Just a sheepish “Thank you, Mr. Harrison.”

Keeping the rowdy folks in check

We wish Danielson would keep in mind that the “rowdy” people in the back of the room are the important ones. They are some of Mandeville’s most successful, most established, best and brightest. It’s not a good look when he snaps at them like a seventh-grade math teacher — “No clapping!” — or lectures them on social media civility or has a Mandeville police officer threaten and warn them.

And the final blow — at least to the spirits of those who thought this was nearing an end — came when Danielson announced the next scheduled meeting wouldn’t be until August 15th, more than three weeks away. Maybe they’re hoping that the extra time will soften the aforementioned beachhead of resistance.

Will Danielson allow any amendments or conditions from fellow council members at the next meeting?

Will we get another surprise announcement as the meeting starts, perhaps that the public won’t be allowed to speak at all? Remember, according to state law, they are not obligated to let the public speak unless there is an actual vote on the agenda item in question. Just saying.

So who knows. Stay tuned. It’s bound to get worse.

-30-

Sucette meeting #147?

By Ernest A. Burguières

July 25, 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 starting to seem like the movie “Groundhog Day.” It seems like week after week it is the same story.

There was one citizen comment that neatly summarized what was happening in a joke that I will try to paraphrase:

A man was going to have a party in which he requested that his guests bring a dish. One guest brought a beautiful roasted turkey. Unfortunately the host was a vegetarian and explained this to the guest. The guest responded that it was one of the finest turkeys around. But the host said he was a vegetarian. The guest then said the turkey was prepared by one of the city’s most famous chefs. But the host said he was a vegetarian. The guest then said he had sliced off a small portion of the turkey to make it all right. But the host said he was a vegetarian.

It does not matter how you dress it up or how you cut it, it is still a turkey and it is unacceptable.

Indeed.

What got us here?

Discussions of how and why the city should try to jam a highway zoning designation into a residential area that is hidden in a labyrinth of narrow streets far away from a highway.

The usual legal and intellectual gymnastics proliferated from the city attorney and director or planning. They were talking a different language and were apparently immune to the fear and loathing that has become a regular feature of citizen comments about this project.

An attempt was made to equate the 4,000-square-foot or 10,000-square-foot Sucette “event center” or “ballroom” (I don’t know what the functional difference is.) with the less than 2,000-square-foot Maison Lafitte on Lafitte St. How does this compare?

Then Sucette attorney, Paul Harrison, tried to equate local one or two bedroom B&B / VRBO short term rentals in the old town with Sucette’s 80-room hotel. Why, it’s almost identical! What’s the fuss?

Councilwoman Rebecca Bush then lamented how the magical (my word) traffic studies did not seem to take in to account the effect of frequent weddings or other events that could bring 100-200 cars into this tight area all at one time. The traffic study is an academic tool that amortizes traffic over a large period of time, years, which minimizes the effects of potentially frequent big events. It is a flaw in the study that because it is an unknown methodology we are likely powerless to criticize, despite the reality of events.

When asked by Councilman Jason Zuckerman if the reduction of the apartment units from 178 to 90 would correspondingly reduce the height of the building Sucette responded, “we don’t know”. Really? A 50-percent reduction in the number of apartments might not affect the height of a building that is almost twice as high as anything for miles around. Oh, and then what appeared to be a veiled threat that if Sucette is frustrated on height they may have to pull the marina portion of the project. That threat almost sounds like a virtue.

Sucette appears to want to view each component of its project separately when it suits their analysis involving density and scale but falls back to the big picture when they want to talk about the need to look at the big picture that they have divined through the CLURO.

The room was packed as usual and while there were many familiar faces there were also many new ones. Many were wearing red in solidarity with the No Sucette movement. I only counted one citizen that I know was a Sucette proponent although she made no comments. In fact no one but Sucette representatives spoke in favor of Sucette.

Another citizen rhetorically wondered how anyone could sit in judgment over this issue week after week and watch scores of citizens plead with their elected officials to protect them, and not do anything to hurt them.

The vice president of the New Golden Shores neighborhood association who lived on Dona Dr. (a neighbor of Councilman Skelly Kreller) shared the results of a poll on Sucette in which there was a ratio of 12-to-1 against Sucette. I wonder if Kreller participated in the poll?

The public comments wrapped up with citizen Pat Rosenow commenting on the difficulty in being a judge (which he is or was) and how delaying a difficult decision is death by a 1000 cuts. He, like several others, implored the council to separate the re-zoning issue from the conditional use and vote on the re-zoning. Very logical. Re-zoning would be forever. If you think re-zoning is in the best interest of the health, safety and welfare of the citizens of Mandeville, then vote to re-zone. If you cannot honestly say that re-zoning helps anyone but the developer, then vote no.

For a reason that is not clear Councilman Rick Danielson announced that there would be at least two more meetings on Sucette, August 15th and August 23rd. To discuss what that we haven’t heard already? A turkey is still a turkey.

-30-

By Ernest A. Burguières

July 23, 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.

---

Residents of Mandeville were treated to a new salvo being hurled in the battle over Sucette. Beyond the retort that the opposition represents only a few disgruntled people is evidence of a slick mail-out piece opposing Sucette. I can tell you from personal experience that the artwork, printing and mailing represents several thousand dollars of disgruntlement. That citizens in a small town should have to expend such resources to get the attention of their elected officials is in itself remarkable. It make me wonder how an elected official can seriously ignore this effort.

Rumors are swirling about what to expect. Will Sucette succeed in trying to get a do-over of the 90 apartment limit? Will Sucette make substantial concessions on height? Will the event center survive? Will we be forced to tear up tiny little Antibes St. so the Sysco tractor trailer trucks can lumber back to the Sucette pavilion? What will be the tipping point to get that third council vote to approve? Will the out of town interests prevail in ripping the heart out of the quaint coastal village that has endured so far without any high-rise packed apartments or hotels in the middle of their sleepy lakefront enclave? Remember, once you re-zone this to commercial (Planned Development Multi Use in Planner speak), it will forever be commercial.

The money quote on the mailer by Nicole Stanley of Old Golden Shores (Councilman Skelly Kreller’s district and neighborhood):

We bought our property in Mandeville for the ambiance and the quality of life. This project would set a precedent for us becoming exactly what we moved away from in New Orleans. Mandeville has nothing to gain and everything to lose if this development goes through.

— Nicole Stanley, Old Golden Shores

Will we all be able to lay our heads on our pillows if we allow this to go through? Would this be fair to the hundreds of people that would be affected?

If you oppose this, the least you can do is email your elected official. Their names and email addresses are on the flyer. The next meeting is tomorrow night, Monday, July 24th at 6:00pm at the Spitzfaden Center.

Make a difference, it is worth it, if not just for yourself, then for your neighbors.

-30-

Where is the real line in the sand for the developer, council members?

Editorial

And just like that, the once ambitious plan for a hotel, events center, apartments and marina at the west end of the Mandeville lakefront came crashing down to the reality that three of the five City Council members are having nothing to do with a development with the density proposed by the Sucette Harbor team.

The revised site plan presented at the July 5th special meeting signaled what was in the eyes of Woodward Interests President Bill Hoffman and many others a monumental concession that just weeks earlier he had insisted was not viable.

However, to their credit, Hoffman and his team scaled back their proposal to address concerns expressed by Councilman at Large Jason Zuckerman, District I Councilwoman Rebecca Bush and District III Councilwoman Jill McGuire. Bush had even directly appealed to Hoffman to cut the number of apartment units, which he did, from 201 down to 178, along with other modifications.

---

We’re back to the blank slate. I’ve seen all of this. If you don’t like my analysis, I’m sorry. I don’t like yours.

— Councilman at Large Jason Zuckerman to Sucette Attorney Paul Harrison

---

But everything changed in one fell swoop at the July 12th special meeting. An amendment proffered by Zuckerman to limit the number of apartment units to an astonishingly modest 90 actually passed when swing vote Bush sided with project skeptics Zuckerman and McGuire.

Surely Hoffman didn’t see that coming.

Most observers in the room were confident that Bush’s concerns had been allayed by Hoffman’s July 5th concessions where he found a way to cut 23 units. Just two weeks earlier, he winced and bemoaned Bush’s repeated queries about a reduction in units, making it sound like such a request bordered on the impossible:

“So we struggle with some of the same things you do. From day one we feel like we played by the rules as has been written by the CLURO. We did it with density. We did it with all the other issues. And I’m certainly hearing that there’s questions about what the CLURO meant of is it still valid today, but it kind of leaves us hanging because we were presented with ’these are the rules you have to follow’ and that’s what we’re following… We will look at size (density question) but it does have an impact on everything else because we look at the whole development as one, not by pieces.”

Audible gasps could be heard in the Paul Spitzfaden Community Center July 12th when those in attendance suddenly realized Bush had voted in the affirmative, in effect choking down a major feature of the current site plan to half of what it was.

This was a watershed moment as it signaled Bush’s true position. It also revealed that two other council members — Councilman at Large Rick Danielson and District II Councilman Dr. Skelly Kreller — have no problem with a high-density development on Mandeville’s lakefront and south of Monroe Street.

And it was Kreller himself who during his election campaign promised to be the vanguard against a high-density development on the LSU Health Foundation land. “I’m going to be in there controlling it… I don’t want any high-density stuff,” he told the Times-Picayune/Nola.com in 2020.

It’s worth noting that Danielson and Kreller have remained mostly silent when it comes to asking the developer critical or probing questions throughout any of these special meetings.

If Bush had only hinted at her position on June 20th, she spelled it out in no uncertain terms July 12th by voting for the Zuckerman amendment.

Before the vote, Zuckerman explained that his amendment came out of his frustration with the density calculation from the CLURO being used by the developer, which merely says the calculation is based on the total parcel size, regardless of what else is planned to be built on it. In this case, there would be a hotel, restaurant, events center, parking and more.

City Attorney Elizabeth Sconzert backed up Zuckerman’s position by saying, “Because this is a ‘planned district’ you are allowed to make modifications to it, and what I’m hearing from Mr. Zuckerman … is that he’s wanting to potentially modify the site plan to address some of his concerns about the density under that, and then he’s comparing it with the applicable regulations of R3 but that he feels that it’s not appropriate there.”

According to the Sucette team, using the R3 calculation, the density is only about 12 units per acre. Zuckerman said he agrees the density should be 12 units per acre, but the calculation should be based on roughly 7.5 acres and not 15, which is what he claims is all that’s left after you exclude everything related to the other buildings and facilities.

This was how Zuckerman came up with his 90-unit figure. To say Sucette attorney Paul Harrison did not agree would be putting it extremely mildly as the two men had an often heated exchange before the amendment was adopted 3-2.

“We comply with your laws. So you personally had an opinion and you used this forum to make a motion which has not been voted on. You asked if the developer was in favor of it… No! For reasons I articulated,” Harrison insisted.

Zuckerman concluded by telling Harrison, “Was it not discussed during the entire — and this is a question for the planning director and I guess the city attorney — planned district. Planned district. It’s a blank slate. We get to set the rules for what’s appropriate. That was discussed every step of the way. I hear ya. You’re wanting to apply B3, B1, R3, R-this… this is planned district. We’re back to the blank slate. I’ve seen all of this. If you don’t like my analysis, I’m sorry. I don’t like yours.”

So was 178 units really Hoffman’s line-in-the-sand, so to speak? How far is the developer really willing to bend without breaking?

It’s hard to believe that an organization like Woodward Interests doesn’t have contingencies for the curveballs they surely knew they would encounter during this process.

Is the developer really tied to any of the four components of this proposal — hotel, events center, apartments or marina — so tightly that the Zuckerman amendment would cause them to pack up and head straight to court?

Doubtful.

Don’t be surprised if at the next meeting the developer pushes forward with the 90-unit limit as if it were part of the plan all along but then floats some poison pill as a way to force the Council to reconsider the Zuckerman amendment and bring that number up to somewhere in the middle.

Even though it’s entirely possible the developer will accept a steady chipping away of the once ambitious project until it’s a shell of its former self, don’t bet on it. The next special meeting scheduled for July 24th is sure to see more amendments intended to reduce and set conditions on Sucette Harbor. How will the developer react this time?

Stay tuned.

-30-

By Ernest A. Burguières

July 13, 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.

---

Another wild night. A packed house. Two TV cameras. These events really deserve popcorn and wine. And maybe a cigar.

There were several big issues.

First, there will be another Sucette meeting on Monday, July 24th, at 6:00 p.m. at the Spitzfaden Center.

The drama: A night for amendments and conditions

The chair told us that we would discuss amendments to the ordinance and conditions on the property. The Sucette representative provided a few new slides that purported to clarify certain features. For example, we saw a new slide that revealed that the absolute height would be 72′, a figure that some still disagree with. But at 72′ this makes it about double the height of surrounding buildings. Zuckerman believes it might be more.

Sucette made a request that Parcel U, the defunct former marina, be re-subdivided and incorporated into Parcel D, the main Sucette focus.

In what would be a harbinger of future actions Councilman Kreller made a motion that the Sucette Ordinance 23-16 be amended to re-subdivided the property and incorporate Parcel U into Parcel D. Despite a citizen’s question regarding how the addition might affect all of the various previous calculations that only focused on Parcel D, which was kind of sloughed off. It was approved 5-0 by the council despite the fact that Planning and Zoning never looked at Parcel U, I believe because they were told not to.

So now, we have Parcel U in the mix and something called a “Planned Marina District” which I assume brings a host of new issues.

Then Councilman Jason Zuckerman made what at first appeared to be a motion, but upon reflection, was an invitation for a motion. Zuckerman noted that the prior ordinance that governs Parcel D was Ordinance 98-40 wherein Al Copeland Sr. obtained approval for a Planned District Residential zoning for 10 single family homes on the 15 acre plot. In that ordinance was language about how and why the residential designation was in the best interest of the city and its residents. Zuckerman asked if any of the other councilmen wanted to offer a “Whereas” statement in Ordinance 23-16 (the current Sucette ordinance) to the effect that a commercial focused multi use was now in the best interest of the city and its residents. There were no takers. I wonder why (he said rhetorically)? Nobody wanted to openly admit that they supported changing this zoning from residential to commercial. No surprise here.

So, implicit in the fact that there were no takers to Zuckerman’s request was the fact that there was no one on the council willing to openly admit that they favored to endorse an emphasis on the commercial desirability of Parcel D.

The attorney for Sucette, Paul Harrison, commented that such a move by Zuckerman was somehow unfair, that it was pre judging the project and that the 1998 ordinance was flawed. Somehow the desire to maintain a residential zoning and atmosphere is now unfair. I will have more to say on this later.

Councilman Zuckerman then offered a slew of conditions that he wanted placed on the project should it be approved:

• no boat or trailer storage in the marina
• sunken vessels would have to be moved within 10 days
• provisions for an effluence pump out for the boats in the marina
• lighting on the dock at dock level in an effort to minimize the effects of the light on nearby residences
• disallow living on a boat
• violations if not resolved could result in the loss of their conditional use permit which would shut down the operation
  

Local citizen Terri Hamilton made a few additional suggestions:

• all electrical work related to the marina would have to be marine grade
• Dockside electrical connections would have to be between 2′ and 4′ above BFE flood level
• the marina would have 90 days to remove a sunken boat
  

These were all new ideas, much of which was foreign to those not involved in active boating activities. One citizen asked if anyone passing through Mandeville on a boat stayed a few days, a week or a month was violating the living on board idea. No one knew. Another citizen asked in commercial fishing boats like shrimp boats could use the marina. No one knew. What about in-slip boat repairs? No one knew. What about noise? I reminded people that Al Copeland, Sr. was a devotee of offshore power boat racing in boats that used to be called cigarettes. These boats often had one or more large V-8 engines with open exhaust. Very, very loud. Another resident, who was a sailor, shared his experience with the silting problems this marina has always suffered from which may have contributed to its lack of success in what ought to have been a prime area.

Tops’l resident, Tom Whalen, questioned the proximity of a dozen feet or less to a residential area and asked, “why re-zone this property”?

At this point Councilman Kreller made a kind of incredible statement to the effect that if Sucette was going to invest $100 million into this marina project we should trust them to do the right thing. An astute comment I guess,…not.

In somewhat of a surprise to me the council voted 5-0 in favor of these marina conditions.

Then Zuckerman moved onto his next set of motions. Density.

Zuckerman opined that half the property was residential (that is if rent paying apartments is residential as opposed to commercial) and half the property was commercial (hotel, restaurant, marina, event center, restaurant). He then proposed that the 200 unit apartments (which were voluntarily reduced to 180 last time be Sucette) be further reduced to 90 units. This resulted in another round of spirited discussions. The director of planning said the CLURO designation R-3 covered this, but that the council could put any condition they wanted. Sucette objected to the analysis and muttered under his breath that they were told they complied with all the requirements. WHAT? Who told you that? Which prompted Zuckerman to remind everyone that this high density was not in the spirit of the CLURO or what Mandeville has consistently promoted with respect to its residential atmosphere. Local landscaper and former professor, Buck Abby (who was a consultant for Sucette) appeared to try and support Sucette by asking that the whole project be looked at and not just components. This was not a popular opinion.

During this discussion on the 90 apartment unit reduction one citizen asked what the mix would be (1 bedroom, 2 bedroom, 3 bedroom). Another resident, Ralph Whalen, stated that he lived in the Tops’l apartment complex which had 37 units which would still be half the size of the proposed 90 units. A little variance in the scale?

This prompted Paul Harrison, local attorney for Sucette who by this point was visibly angry, to make what appeared to be a veiled threat of litigation by accusing the city of being “arbitrary”.

The vote on the reduction to 90 apartment unit limit was approved by a vote of 3-2 with Chairman Danielson and Councilman Keller being the lone votes to maintain the high density.

Councilwoman Jill McGuire then stepped up to the plate with a motion to limit the gross square footage of the hotel (excluding the square footage of the rooms) to 8,900 square feet. This sought to limit the size of the event center / ballroom. McGuire also made a motion that the impervious portion (that water could not flow through like concrete) would be limited to 61%.

These were both approved by a 5-0 vote.

Councilman Zuckerman then got into the location of the event center which was presently sited on the edge of the entrance jetty to the marina which was about 100’+ from the Mariners Island condos. Thoughts of loud music and wedding revelers filled people’s minds. This prompted the Sucette representative to again object to the notion that this was a “blank slate” project that the council could impose any conditions they wanted because they (Sucette) were told that the plan complied with everything. What? Who told them that?

Another citizen stated that she moved to Mandeville in 1966 when the population was less than 2,000. She asked, why do we have to appease Sucette? Indeed, why?

The architect hired by Sucette then got into a discussion with Zuckerman about why the event center was on the west side of the property so close to Mariners Island and why it should not be moved closer to the lake. Interestingly, she looked visibly shaken and upset.

The vote on this motion to move the event center failed 1-4 with Zuckerman casting the only vote to move it.

Then Councilwoman McGuire made a motion to revise Table 1 in the ordinance which listed all of the limits to apartments, rooms, square footage, boat slips and parking spaces which would bring it in to conformity with changes Sucette had previously made but which did not reflect the changes made by the council that evening.

This vote passed 5-0.

This again prompted the Sucette representative to disapprovingly mutter, rules don’t mean much.

At this point you should be getting a sense that not only did things not go well for Sucette, they were also getting visibly angry. There was a sense that they felt betrayed in their comments.

The final issue was traffic and who would bear the cost of any road projects that might be required as a result of the operation of Sucette. Councilman Zuckerman moved to require that Sucette pay for any required road work. Sucette responded by saying that The Traffic Study (with words written in gold) did not contemplate road work for 20+ years. This prompted me to remind everyone that on day one of operation there were going to be Sysco Foods tractor trailer trucks that would have to make the right turn from Monroe onto Antibes West to service the restaurant, hotel. The turn is too small to accommodate a 60′ long vehicle. This prompted the mayor to state that (I believe) the city could not force Sucette to pay for road reconstruction like was done in the Port Marigny case. In Port Marigny the owner offered to pay for the road work, they could not be required to may for it. This issue was put off for the next meeting.

The conclusion: What happened and why?

Wisdom is a thing that involves time and experience. We see the issue of wisdom crop in the Titanic submarine tragedy. There were reports that the Ocean Gate CEO, Stockton Rush (who died in the accident) once explained how he didn’t hire “50-year-old white guys” with military experience to captain his vessels because they weren’t “inspirational.”

Unbelievable. Does anybody think that is an astute statement?

Talk about ignoring the value of experience and wisdom.

In the case of Mandeville, it has been involved in three prior controversial real estate projects that resulted in litigation; Abraham v. City of Mandeville (1986), et al; Our Lady of the Lake v. City of Mandeville (2011); Port Marigny, et al v. City of Mandeville, et al (2017). All three involved an applicant who tried to push the envelope with a development that caused the community to rise up in an uproar. Port Marigny is an anomaly for reasons that have to do with the details of that case. The common thread with these cases is the consistent resistance by the community to out of scale developments. Al Copeland, Sr. should be added to this as well because Copeland’s original application, Ordinance 95-36 in 1995 was denied. Look at why. It took Copeland three years to gain approval of Ordinance 98-40 in which the city, and the public, fought every inch of the way. Copeland is an example of how the process should work.

This brings up the question; what institutional knowledge do our city attorney and director of planning have with respect to projects like this? Do they know about these historical matters? What did the city learn from these past experiences? Was that experience passed on to our city attorney and director of planning? I don’t know.

Looking over the past 35 years should we as citizens hope that our government officials have a sense for what is possible in this community? Has the City learned anything from these experiences? Should our government officials encourage applicants with projects that might be popular with planners, but not with the citizens and are therefore risky? If Sucette was encouraged to believe that his application was all in order and would be approved, but ignored the known will of the people and the desire of our elected officials to represent what the citizens want, is that a good thing?

Sucette keeps stating that they were misled and that the opposition is only a handful of people. I can’t disagree with this statement because I don’t know what they were told and by whom. What I do know is that the city attorney and the director planning repeatedly told Planning and Zoning and the Council that they had discretion to approve, disapprove or approve with conditions, that they had choices and yet in the next breath they said you must approve this because that is the law. This is a non sequitur. If you have a choice, then, you have a choice. As Councilman Zuckerman said in response to Paul Harrison’s similar admonition, if we don’t have a choice, then why are we here? And the emperor has no clothes.

-30-

By Ernest A. Burguières

July 11, 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 whole discussion about planned development is a red herring. A red herring is a misleading statement, question, or argument meant to redirect a conversation away from its original topic.

Over the past few months the discussion has been sometimes heated and always exhausting.

How big will the hotel be? How many parking spaces? What is included in a marina? How big is the restaurant? All questions that involve a commercial zoned area.

The problem with all of these discussions is that they assume the property is already zoned commercial. It is not. It is zoned residential. It has to be zoned commercial first before you can discuss the details of a conditional use permit for a commercial operation. That is why Ord. 23-16 contains a provision to re-zone this property to commercial.

The terms planned development residential and planned development multi use still boil down to zoned residential and zoned commercial. Planned development is merely a term that provides different rules for executing, but the zoning is either residential or commercial.

So, somebody combined two issues; zoning and conditional use. The Mandeville rules may ALLOW these two items to be combined into one ordinance, but the rules do not REQUIRE them to be combined.

CLURO rule 4.3.3.3. Concurrent Applications:

Application for a Conditional Use Permit and for Rezoning or Planned District zoning for the same property may be made concurrently, subject to the fees applicable to a rezoning or Planned District zoning only. The Planning Commission and Zoning Commission may hold the public hearing on the Rezoning and the Conditional Use Permit at the same meeting and may combine the two hearings. The City Council likewise may hold the two public hearings in combination and may approve both the Conditional Use and rezoning or Planned District zoning by one ordinance.

Clearly, 4.3.3.3. contemplates that a Conditional Use Permit and a Rezoning are two different matters, except it states that they can be made concurrently. In fact, it further states that the City Council likewise may hold the two public hearings in combination and may approve both the Conditional Use and re-zoning or Planned District zoning by one ordinance. No where does it say that you MUST combine these two issues. It is just for the convenience of the person seeking approval, e.g. Sucette.

Combining the two confuses a big issue. Our discussions have focused on the ramifications of the different conditional use issues. What has not been discussed is how re-zoning this property from residential to commercial benefits the health, safety and welfare of this community. Whenever someone applies for a zoning change there is increased scrutiny and a reluctance to change the zoning, especially if it appears to result in spot zoning (a different zoning designation than the surrounding area which is what is occurring in Sucette).

In this instance there has been virtually no discussion of the desirability of changing the zoning from residential to commercial. There has been a great deal of citizen angst and criticism about the various commercial uses, but we have lost sight of the fact that the reason for this angst is it does not fit in a residential area.

Additionally, once you zone this property commercial, it will always be commercial for any project that comes along after this one fails. I do not believe this has ever been discussed. Why not? Plus, it certainly sets a precedent for surrounding properties to request a zoning change to commercial. Are we not allowed to look at the potential consequences of each aspect of a decision? This is certainly foreseeable.

Our brains are geared to a “truth bias:” We automatically tag incoming information as true and must exert extra effort to remain uncertain or to re-label it as false. This bias is not a bug, but a feature. Truth bias turns seeing into believing, so it is a prerequisite for any act of deception. To overcome this tendency we need to curb our enthusiasm and ask ourselves, “what’s missing?’

Our tendency to focus on the information we already have can be amplified further by our preference for consistency. Smoothness and simplicity appeal to us because perfect patterns sometimes do reflect insight.

We are given all sorts of reasons why the specifics of the conditional use are beyond discussion, but that is because it presumes that the property is already zoned commercial. It is not. Implicit in our discussions is that the property is zoned commercial and we do not question this. Why is that? This is the first question that we decide whether we realize it or not. By hiding the decision process with the focus on conditional use with its controversial aspects we do not make the case for why it does, or does not, benefit the community to re-zone to commercial.

Was it sneaky to quietly incorporate the zoning issue into Ordinance 23-16? Possibly. We can certainly see the problem once we start to dissect the decision making process.

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.

-30-

July 5, 2023: Coverage of the City Council’s special meeting to discuss the Sucette Harbor project

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.

---

The Sucette Spectacle of Fear continued its plod toward a resolution of some sort. The Sucette people made what they consider to be substantial changes to their plan. They reduced the number of apartments by about 10% by converting some three bedroom units to two bedroom units. (Last week they said they could not reduce the number of apartments, what changed?) They increased parking by cutting out buildings or moving footprints. It is difficult to say because there were no real final renderings of what they want or where exactly they want it. Overlays of different colors would have been helpful. But no change on the height. It kind of looks like they are dialing back on the buildings or services associated with the marina.

The discussion then slipped into the marina that was not being considered but was nonetheless part of the project. (How do you consider and discuss a marina that is on a different piece of property that is not being considered in this application? This may be one of those mysteries of life.) Terri Hamilton commented on the fact that it was merely a body of water at this time and had no clues that it was a marina. Then came the legal gymnastics. The City Attorney proclaimed that it used to be a marina and therefore basically, it will always be a marina under the CLURO. To this a question and comment by Bill Kropog: CLURO Section 8.2.3.9, 2b states that you can maintain a marina by Repair of Non-Conforming Docking Structures. The problem is that there are no docking structures, they were all removed around 2018. The City Attorney disagreed and maintained that potential repair of imaginary docking structures was sufficient to maintain marina status. This is the kind of stuff that gives the law a bad name. Only special shamans can tell us lowly peasants that the true meaning Repair of Non-Conforming Docking Structures obviously refers to docking structures that only shamans can see.

Then another invaluable shaman interpretation occurred when Van Mayhal asked about CLURO 4.3.3.8, this is the section that states:

4.3.3.8. Review and Evaluation Criteria.

The Planning Director, the Planning Commission and the City Council shall review and evaluate and make the following findings before granting a Conditional Use Permit or Planned District zoning using the following criteria:

There are 12 criteria that are listed which are below, but Mr. Mayhal, an attorney but apparently not a shaman, stated that in the law when the word “shall’ is used in a statute you must do whatever follows. (A shaman is a member of certain traditional societies, who acts as a medium between the visible world and an invisible spirit world and who practices magic or sorcery for purposes of healing, divination, and control over natural events.) The simple conclusion to be drawn from the introductory statement above is that all three entities; The Planning Director, the Planning Commission and the City Council must review and evaluate Sucette by answering the following:

1. Comparison with applicable regulations and standards established by the Comprehensive Land Use Regulations applicable to the proposed use and site.
   
2. Compatibility with existing or permitted uses on abutting sites, in terms of building height, bulk and scale, setbacks and open spaces, landscaping and site development, and access and circulation features.
   
3. Potentially unfavorable effects or impacts on other existing conforming or permitted uses on abutting sites, to the extent such impacts exceed these which reasonably may result from use of the site by a permitted use.
   
4. Modifications to the site plan which would result in increased compatibility, or would mitigate potentially unfavorable impacts, or would be necessary to conform to applicable regulations and standards and to protect the public health, safety, morals, and general welfare.
   
5. Safety and convenience of vehicular and pedestrian circulation in the vicinity, including traffic reasonably expected to be generated by the proposed use and other uses reasonable and anticipated in the area considering existing zoning and land uses in the area.
   
6. Protection of persons and property from erosion, flood or water damage, fire, noise, glare, and similar hazards or impacts.
   
7. Location, lighting, and type of signs; and relation of signs to traffic control and adverse effect on adjacent properties.
   
8. Adequacy and convenience of off-street parking and loading facilities and protection of adjacent property from glare of site lighting.
   
9. Conformity with the objectives of these regulations and the purposes of the zone in which the site is located.
   
10. Compatibility of the proposed use and site development, together with any modifications applicable thereto, with existing or permitted uses in the vicinity.
    
11. That any conditions applicable to approval are the minimum necessary to minimize potentially unfavorable impacts on nearby uses and to ensure compatibility of the proposed use with existing or permitted uses in the same district and the surrounding area.
    
12. That the proposed use, together with the conditions applicable thereto, will not be detrimental to the public health, safety, or welfare, or community aesthetics, or materially injurious to properties or improvements in the vicinity.
    

There are meaty subjects in these 12 items. We don’t know what the Planning Director did except that she did not deviate from the Sucette plan. However, there is no evidence that Planning and Zoning reviewed, evaluated or made any findings involving these individual 12 items so we don’t know specifically what they decided, or why. All that we can infer is that because they voted (4-3) to move this on to council that they must have considered these criteria. What? Can an inference be a finding? Is that what is contemplated by 4.3.3.8? If this matter goes before a judge, what can he determine about the review and evaluation process and why a certain decision was made. You really can’t without more information hence the need for a finding on each issue. Maybe nobody thinks this will ever get to court and therefore the City of Mandeville does not need to worry about it? Why wouldn’t you want to be clear about what you did, and why? Maybe I have answered my own question.

Larry Grundman, a persistent critic, lamented the fact that all of the questions mostly raised by citizens in the Planning and Zoning hearings and to some extent, the council hearings, appeared to have fallen off into the ether. Were the questions ever answered? How can anyone tell? If you cannot find the questions or the answers what have you learned? Nothing. Does that mean that the protestations of the unwashed masses (e.g. the citizens) is merely an irritation to those in charge who are on a mission?

I can really understand how citizen questions can be repetitive, tedious and off the mark. But the citizens in a democracy have always been the theoretical owners, the client. Now when you throw in an educated populace, one that is motivated, the questions become more pointed and considered. Especially when their lifestyle is jeopardized.

At this point I made a comment suggesting that some of the responses, or lack of responses by some council people suggested that they may have had a hard time actually visualizing the basis for all of this citizen angst. I implored them to do a field trip to the site and bring the City Attorney and Director of Planning so that the questions and comments of citizens would be less abstract. How will that Sysco tractor trailer truck make that right turn from Monroe on to W. Antibes? The Mariners Island is only 100′ from the event center? How will several hundred more cars and trucks shuffle in and out of this small peninsula of land every day?

The conversation then drifted off with a pronouncement by the Director of Planning that the City of Mandeville of Mandeville could prohibit the sale of Parcel U in order to maintain its tie to the Parcel D development. What?

Then the question of how or why this could be done landed in the City Attorney’s lap who asked Councilman Jason Zuckerman if he wanted to waive attorney client privilege since he was the client. Now attorney client privilege is in place so your adversaries don’t discover your attorney’s confidential communication. Oh, and in this case, in case you didn’t know, you and I are the adversaries.

Local attorney Kevin Vogeltanz tried to remind the council that this property is currently zoned residential, albeit planned development residential which is why in 1998 it was approved for 10 single family homes, which was specifically supported by that council at that time because it maintained the residential atmosphere of the Old Town. No more. We apparently cannot afford to maintain that residential quality. It disappeared not in a specific change in the law or Comprehensive Plan but rather through a lawyer’s interpretation of what should be.

Does anyone get the feeling that all of this planning stuff, and the legal interpretations that support it, might as well be a foreign language that somehow loses sight of the fact that it is supposed to represent the will of the people?

Moving on. Larry Grundman, Brian Rhinehart and Kevin Vogeltanz got up and again asked why nobody was even considering going item by item through the 12 criteria in 4.3.3.8. Crickets.

Then the discussion moved to height. We all might think this is a cut and dried issue. How tall is it? Well, no. Do you measure from the ground, the first floor of a garage, the first floor where people live and walk? Now Councilman Jason Zuckerman is an architect and he works for a big contractor. He has done a few buildings. Mr. Hoffman and Mr. Zuckerman got into a discussion about whether the buildings are 60′, 70′ or 80′. Hoffman talked about “architectural features” at the top. Zuckerman called that a roof. Part of the problem is that the ground is not flat. The elevation may change by many feet in a very small area. If you have to have the first floor above a certain elevation for flood purposes then that can add to the total height of the structure. And so it went.

Then Terri Hamilton got up and shared a photo an engineer friend did that imagined Sucette in place surrounded by Mariners Island and Tops’l, the immediate adjacent condos that are I believe around 35′ high. Well, the depiction envisioned a 60′ Sucette (instead of 70′ or 80″) which literally made it twice as high. It dwarfed its neighbors. Will there be a finding that this is compatible?

The evening finished up with Councilwoman Jill McGuire expressing frustration that she was either getting no advice or conflicting advice from the City Attorney or the Director of Planning. Are we at a point where the Council should hire its own attorney? We may be past that time.

Councilman Jason Zuckerman finished by questioning the vague and over inclusive language of the ordinance. The ordinance purports to “re-zone to the extent necessary”. What does that mean? “All variances are granted”. What variances? They said they weren’t required to get any variances, why are they asking for a blank check on variances?

The next episode will be Wednesday, July 12th Spitzfaden Center at 6:00pm.

-30-

The case for a conditional use permit for the ‘marina’

Editorial

During the last few City Council meetings where the Sucette Harbor project was debated, the City Attorney repeatedly insisted that the parcel of land where the marina will lie, does not need the City Council to approve a conditional use permit as is required for the rest of the property.

But some on the council – specifically Councilman at Large Jason Zuckerman and District III Councilwoman Jill McGuire – seem to disagree with this interpretation based on their lines of questioning.

The crux of the matter is the working interpretation by City Attorney Elizabeth Sconzert of a section of Mandeville’s Comprehensive Land Use Regulation Ordinance, or CLURO.

Steel Man Argument: Sconzert’s case

Sconzert, along with Director of Planning and Development Cara Bartholomew, have maintained since the very beginning that a conditional use permit is not required for the marina parcel, but only for the parcel of land where the hotel, events center and apartment structures will lie.

The current ordinance only contains a conditional use permit for Parcel D, not Parcel U where the marina lies. The CLURO has a table of designated uses and procedures that apply to each according to their respective zoning districts.

CLURO Section 7.7 — Table Of Permitted Uses By Zoning District — is a big deal, and anyone who plans to build something in Mandeville is well aware of its implications.

According to the table, each designated use might require a procedure or special approval based on its zoning district in order to have something built.

---

See also:
Sucette Harbor plans revised to reduce scale, density, plus fix property line issues

---

For example, Parcel U is currently zoned “Planned District” or “PD” in the table, and the designated use “Marine Service *Marinas” (line 6.4.53) with that zoning requires a conditional use permit, so says Section 7.7.

However — and this is Sconzert’s contention — there is an asterisk after that designated use, which she says means a conditional use permit is not in fact required because there’s an exception for the designated use of marina.

According to the legend for the table (Section 7.7.2 – Use of Symbols in Table of Permitted Uses), the asterisk (*) means “Special Development Criteria” which directs the reader to Article 8 of the CLURO to see if there is a matching criterion.

Sconzert says there is indeed a matching condition at Section 8.2.3.9 “Special Marina Use Criteria” and she even quoted it verbatim at the last meeting on June 20th. In full, it reads:

“8.2.3.9(2b) – Repair of Non-Conforming Docking Structures. Provisions of section 4.2 Non-Conforming Provisions do not apply.”

There we have it. Section 4.2 does not apply. But what is 4.2?

Section 4.2 defines what legally non-conforming is. Basically, it lists a whole slew of conditions that allow a legally non-conforming parcel to be brought up to compliance and in such cases, they lose their permit to operate and generally need to reapply.

This is made clear in 4.2.3(9): “Abandonment or Discontinuance. When the use of a non-conforming development site has been abandoned for a period of six (6) months, regardless of any reservation of intent not to abandon use of the site, such site shall not thereafter be used, developed or improved until it is brought into conformance with the provisions of this Ordinance…”

And “provisions of this Ordinance” would simply mean they have to start over and apply for their use permit, according to the aforementioned Table of Permitted Uses at 7.7.3.

But remember, Sconzert is saying nothing in 4.2 matters. She is asserting that the “Special Development Criteria” of Article 8, as specified by the Table of Permitted Uses at Section 7.7.3, line item 6.4.53 “Marine Service *Marinas” renders 4.2 moot, because the developer is merely repairing existing docking structures.

Everything we’ve laid out here in this piece is Sconzert’s “steel man” argument, as if she were here making the case herself. No trickery.

But it is the opinion of Mandeville Daily that she is just plain wrong, and here’s why:

What does it mean to be a non-conforming marina?

Section 8.2.3.9(2b) — the linchpin of Sconzert’s argument — is only a valid condition for marinas whose “docking structures” have fallen into disrepair, not marinas that had their slips and docks removed before being transferred from one party to another as Al Copeland Jr. did with Parcel U in 2018, giving it to the LSU Health Foundation.

Copeland willfully and voluntarily took Parcel U out of commerce in 2018, when he demolished and removed the slips, hence making it subject to 4.2 “Non-Conforming Provisions,” or more specifically 4.2.3(9): “Abandonment or Discontinuance.”

Section 8.2.3.9(2b) very specifically refers to “docking structures” and not a marina as a whole. And besides, “marina” in the eyes of the CLURO is just a designated use and not an actual thing.

“Repair of Non-Conforming Docking Structures. Provisions of section 4.2 Non-Conforming Provisions do not apply.”

But this section or the CLURO was only intended to allow the owner/operator of an otherwise working marina repair his docking structures without having to get a new conditional use permit.

On which planet can you take what is effectively an empty body of water and build a new marina infrastructure — including docks, slips, bulkheads, fueling stations, etc. — and call it “Repair of Non-Conforming Docking Structures” and get away with it?

Words have meaning.

Parcel U is non-conforming and the Table of Permitted Uses at Section 7.7.3 says a conditional use permit is required to build a new marina infrastructure. Unfortunately, we have a City Attorney who seems to be ignoring the obvious.

Bonus: Parcel U never again has to come before the Council… ever

Sconzert and Bartholomew keep saying that Parcel U has always been a “marina” since before the CLURO was enacted, and its designated use is not changing, therefore there is no need for a conditional use permit.

The only problem with that is, the property changed hands or ownership when Al Copeland Jr. donated it to the LSU Health Foundation. What’s more, as emphasized earlier, the slip and docking structures were removed.

According to Sconzert, it doesn’t matter that the property changed owners, as long as it remains a “marina” by designated use, it does not have to come before the City Council.

Based on this interpretation, if the LSU Health Foundation and Woodward Interests decided next month that they have changed their plans and no longer need Parcel U, they could immediately sell it to someone else, who could then build however many boat slips, docks or whatever they wanted, without a conditional use permit, without an ordinance, without even telling anyone what they were doing.

From here to eternity, it would never have to come before the City Council again… as long as it keeps the designated use of “marina.”

To that, we’ll just agree with McGuire: “That’s crazy talk.”

Past the point of no return

Mandeville Daily believes that Sconzert and Bartholomew feel they are past the point of no return to admit there might be an issue anywhere that could throw a wrench into the works.

Maybe it’s just as simple as this: They honestly and wholeheartedly believe the project is good for Mandeville and it must be adopted at all costs, despite all of us dummies out here who don’t know any better.

If they were to change their position at this late stage of the game, then surely we could expect a lawsuit from the developer.

Until this thing is hopefully voted down by the City Council or perhaps vetoed by Mayor Clay Madden, Sconzert and Bartholomew will continue to make awkward faces, weird contortions, and seemingly impossible leaps in logic during council meetings when confronted with even the most basic observations of fact or contradiction.

-30-

---

Related Links:

OPINION: Conflicting statements by city official revealing, troubling

Sparks fly over property lines, conditional use permit details as council members tangle with city officials at special meeting

Sucette Harbor special meeting rescheduled after delay in updated plans

ERNEST BURGUIÈRES: The circus does not fail to amuse

---

City Attorney admission that building, structures on Parcel U means amendment required to avoid conditional use permit

Planning director contradicts City Attorney with denial that buildings on Parcel U

Site plan shows restaurant building, outdoor seating on Parcel U

Editorial

The Sucette Harbor ordinance as written, including its latest exhibits, would require amendment in order to pass legal muster, so says City Attorney Elizabeth Sconzert.

Yes. She said that.

Not in so many words, but she said it all the same. It was the kind of revelation whose significance might have slipped by the casual observer. Mandeville Daily didn’t catch it until after watching the video from the June 20th special meeting for the third time.

What’s more astonishing is that minutes later, Director of Planning and Development Cara Bartholomew would state the exact opposite — on the record. And she and Sconzert sit right next to each other.

Sconzert and Bartholomew have maintained throughout this process of public meetings that Parcel U is “off the table” when it comes to requiring a conditional use permit, even though some council members and others have been jumping up and down in frustration because the latest site plans clearly show buildings on Parcel U. (Critics also allege that Parcel U was taken out of commerce years ago, having its boat slips and bulkheads demolished, hence requiring a conditional use permit for that reason as well. Sconzert has a different legal argument to combat that complaint.)

Until June 20th, anyone who questioned the proposal was told that Parcel U is just a marina, and doesn’t require a conditional use permit. As if they were willfully ignoring the property line between Parcels D and U as well as the developer’s drawings clearly showing buildings on Parcel U.

Nothing to see here, we were told.

But with what Sconzert said on June 20th, everything has changed. So much so that mysteriously, Woodward Interests, the Sucette Harbor developer, abruptly asked for more time to revise something which triggered a previously scheduled meeting for June 29th to be canceled, er, rescheduled, that is.

Sconzert didn’t come right out and say that there is a legal issue with Ordinance 23-16, mind you. She is an attorney after all.

What she actually said was, there are two “issues” at present.

Sconzert said the first issue was that there are indeed structures planned for Parcel U (which would require a conditional use permit) but that this is a minor glitch because it can easily be remedied by the City Council, presumably with an amendment specifying that all building structures must be contained within Parcel D and not on Parcel U. (Parcel D has a conditional use permit as part of the ordinance.)

Really? Then why didn’t they draw it that way from the beginning? These facts admitted to by Sconzert were just as true five months ago as they are now.

This means that the ordinance as written with its current exhibits and site plan, would indeed require a conditional use permit for Parcel U.

And if you take that to its logical conclusion, the ordinance needs to be amended one way or the other: either to specify that no buildings can be on Parcel U, or to add a conditional use permit for Parcel U.

The latter would in effect throw the whole thing back to the Planning and Zoning Commission. Rest assured, they don’t want that to happen.

Here are Sconzert’s exact words:

“There’s a little tiny parcel of land that goes along the wedding garden, and there’s a little tiny diagonal corner where the restaurant is set to be. The question is, is because the restaurant is sitting on — as in the conceptual site plan — because that restaurant is sitting on possibly Parcel U and Parcel D, should Parcel U be here (and require a conditional use permit)? And I think that’s just kind of a, that’s a situation where you guys can ask that. Like are you… does it intend to stay on Parcel D and it’s probably, because it’s conceptual, it could be moved and limited to Parcel D (via amendment).”

She’s clearly saying Ordinance 23-16 has a problem, and it must be fixed, one way or the other, if it is to be adopted. There is no other way to parse her statements.

Sconzert even reiterated this assertion in an exchange with Councilman at Large Jason Zuckerman moments later when he cross-examined her, probably because he too was astonished at what he had just heard:

Sconzert: “There is a little part of Parcel D and Parcel U, that there’s a restaurant sitting on it.”

Zuckerman: “In the site plan we are being asked to approve, there is a restaurant shown that is over the property line in another parcel (Parcel U), that’s correct, along with outdoor seating?”

Sconzert: “Yes.”

Wow. And if that wasn’t enough, about five minutes later Bartholomew threw out a real head-scratcher.

Zuckerman asked Bartholomew if the city would require a conditional use permit for Parcel U (because previous statements by Sconzert implied such an action is at the discretion of the planning department head).

Bartholomew responded: “So at this point, all the plans that we have seen are only showing the docks on Parcel U. I haven’t seen a plan or anything that shows anything else other than the slips on parcel U and the bulkheads.”

Is she kidding? Did she not hear Sconzert moments earlier say the exact opposite and admit to buildings being in Parcel U on the current site plan? Had Bartholomew not seen the site plan by now?

And why would the developer — if they were working with Sconzert and Bartholomew from the get-go — submit an ordinance and site plan that has such significant problems baked into it, that they are now quite literally having to go back to the drawing board to fix it with only weeks to go before a vote?

In baseball this is called the unforced error. The only question is, whose error?

-30-

---

Related Links:

Sparks fly over property lines, conditional use permit details as council members tangle with city officials at special meeting

Sucette Harbor special meeting rescheduled after delay in updated plans

ERNEST BURGUIÈRES: The circus does not fail to amuse

---

June 20, 2023: Coverage of the City Council’s special meeting to discuss the Sucette Harbor project

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.

---

I think these events are getting more interesting. People are starting to reveal themselves in ways that I don’t think they imagined.

The evening started with Cara Bartholomew, Director of Planning for the City of Mandeville reiterating something that her later comments show that she does not believe; the Council can accept, reject or modify Sucette.

First problem, which ought to be a big problem that only Jason Zuckerman and Jill McGuire seem to be aware of; the exhibits, plans and drawings they have are not current. How can you possibly consider a proposal in which the variables are constantly changing? This should have been finalized at the Planning and Zoning stage where Council would be reviewing a finished product. There was no finished product to review. Whose fault is that? This project went through the Planning Dept. and then to Planning and Zoning for months. What was accomplished? What questions were answered? What questions weren’t answered? Does anyone even realize how bush league this is?

Then Chairman Rick Danielson outlined the Succette topics for the evening: outlined the Sucette topics for the evening:

1. Marina use
2. Location of hotel
3. Density
4. Height
5. Parking
6. Traffic
   

The Marina

The Marina property is not under consideration but the design, build and operation of the marina on a separate parcel is part of the current proposal. Huh?

In response to Jason Zuckerman’s question about lapsed use (of the marina) Liz Sconzert, the City Attorney, unequivocally stated that once it was a marina it will always be a marina. Period. What about lapse of use? Sconzert maintains it was used as a marina last in 2018. My recollection is that it had not been used as a marina since Hurricane Katrina almost 20 years ago. Just a because a boat may have been parked in the water in Parcel U does not mean it was operating as a marina. Did it have any occupational licenses? Did it pay any sales tax? Did it have a utilities? Did it sell any fuel? Did it remove and effluence? Did it have any paying tenants? Most everyone knows that this harbor had a silting problem before Katrina and lack of maintenance made it virtually unusable.

The bottom line is that even though Parcel D and Parcel U are owned by the same entity only Parcel D (the land) was before the Council. This despite the fact that pretty much all of the drawings and plans submitted to the city are so imprecise that each parcel overflows into the other. Some of Parcel U is on land and contains pieces of Sucette and vice versa. How can the city make decisions on one parcel that have an effect on another parcel that is not under consideration? How can the Council make a decision with such imprecise drawings? Why didn’t Planning and Zoning take this up? Should it be referred back to Planning and Zoning?

Then, a bit of a bombshell. Jason Zuckerman was asking why Parcel U just wasn’t included? He also asked why the marina aspects of Parcel U would not require the review of a conditional use permit? Parcel D includes a lot of features and functions for a marina that is not part of the project and doesn’t really exist anymore. Apparently Cara Bartholomew, Director of Planning has the discretion to require that it go through a conditional use review instead of just applying for an administrative permit with no public hearing. So, Jason asked her if she would require them to go through a conditional use review. Silence. Why? Are you not aware of how controversial this project is and the City’s track record with managing marinas in the east part of town?

There is no information in the conceptual plans about what business the marina office will and will not do. There was vagueness about boat sales and boat repairs. We were initially told that there would be no fuel dock and no effluence removal facilities. Now, there might be both, especially since the CLURO kind of requires it. We also now learn Sucette expect only maybe eight (8) slips to be rented by Sucette residents, the rest (close to 100) would be rented to Mandeville area residents. Wouldn’t this add to the parking pressure? Kind of makes you question what Sucette is trying to do, and why.

The Hotel

The 80+ room, 108,000 square foot hotel that would be bigger than anything between Mandeville and Covington.

Jill McGuire opened the questioning regarding the event center. I, like many people, believed that the event center was a separate building from the hotel that would also entertain weddings with a capacity of over 200-plus people. Confusion reigned. It turns out, or maybe it doesn’t, that the hotel would have a ballroom in its primary building. Or maybe it was a separate structure near the hotel. I do not recall that the question was ever answered. Well in all fairness to Sucette it was not fair for the Council to try and rely on their current drawings.

Then Jason Zuckerman brought up the issue of compatibility. Mariner’s Island, the single family condos across from the 100′ marina entrance was maybe 150′ from the event center. How is this compatible, or fair, to the Mariner’s Island residents, many who are older, who sought out the location because it was peaceful? And, how is it compatible funneling all of this through the narrow Antibes streets?

The Right of Passage/Servitude

This is a feature that is tied to the land that pre dates Copeland’s ownership. When the manmade marina was dug out one of the conditions was that there had to be unfettered access by the public from Mariners Blvd. to the Lake. This is a strip of land that was surveyed and recorded with the Clerk of Court in Covington so that everyone would be on notice of its existence and location. Up until the prior council meeting no one, including Planning and Zoning in their hearings mentioned it. In fact, Planning and Zoning member Nixon Adams, its longest serving member, must have thought he was being generous and enlightened by persuading Planning and Zoning to include a public right of way to the Lake on the eastern border of the property. Nixon, it already existed on the western side. In any event, it was such a significant feature back in the 1998 case study and permit for Al Copeland, sr. that the Planning Department at the time objected to part of Copeland’s plans that showed encroachment on the right of way by some parking spots. Back then their plans were more complete or definite. The Planning Department was not so diligent today.

Density

The elephant in the room. We are told to just whistle past the graveyard.

In a surprise move Councilwoman Rebecca Bush asked Sucette if they could pull back just a little on the number of apartments. NO. According to Sucette, there economic model was so tightly would that it could not tolerate any reduction or change in the plans. Well, there you go. Sucette just admitted that their economic model could not tolerate a 10 unit reduction in apartments which means that it is not compatible with the area.

And then another bombshell. Jason Zuckerman read from an email that local architect, Vaughan Sollberger sent to the council with images showing that the Sucette density was exponentially greater than anything in the City of Mandeville. Then the bombshell. Cara Bartholomew, Director of Planning stated that the only use that is factored into her density calculation is the 200 unit apartment. The hotel is ignored. The event center is ignored. The marina is ignored. The restaurant is ignored. The Byzantine Mandeville CLURO ignores a majority of the people and uses to make you believe that this is a “low density” project that Sucette claimed in their mailer. How stupid are you? We shall see.

Citizen Terri Hamilton asked why a moratorium could not be issued on this project until all of these inconsistencies are resolved involving current dilemmas with marinas. Not going to happen. The train has left the station.

Local attorney Kevin Vogeltanz asked why the Sucette matter was not broken up in to two matters; the re-zoning and the conditional use permit. Cara Bartholomew, Director of Planning and Liz Sconzert, the City Attorney both agreed that the property was already properly zoned and therefore did not need to be re-zoned, despite the fact that the Ordinance 23-16 specifically requests that the property be re-zoned. Who you gonna believe, me or your lyin’ eyes?

Conclusion

This brings us to our conclusion. I can remember when I started highschool there was an extracurricular called debate. In debate you would take one side of an argument one day, and then be expected to take the opposite side the next day. Law school was similar. You learned that there are virtually no cases that are so black And white that the opposition doesn’t have some merit. With Sucette I am afraid that Cara Bartholomew, Director of Planning and Liz Sconzert, the City Attorney have talked themselves into believing, beyond any reasonable doubt, there is only one answer to this Sucette issue. This despite the fact that almost everyone is aware of numerous inconsistencies in the Mandeville CLURO. Last night more of the public started voicing their sentiment about Bartholomew and Sconzert by openly criticizing, mocking and deriding them for their comments that would have been expected from the Sucette attorney, Paul Harrison. In a way I feel bad for Bartholomew and Sconzert. They are so absolutely convinced that their position is the ONLY answer that any attempt to contradict that position is taken as a personal attack. They are stuck in the weeds and can’t figure how to get out.

As city agents they should not take a position on this project. But by insisting that this project is 100-percent appropriate and that no opposition is legitimate they are taking a position, they are advocating, for Sucette.

Maybe the City Council ought to hire independent counsel?

Developer mails out flyer to Mandeville citizens

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.

---

When I first received the Sucette Mailer I immediately thought that it was the product of citizens who were opposed to the project.

Wrong.

Although it brings attention to some dubious claims as well as the unsuitability and incompatibility of the project for Old Mandeville, Sucette’s mailing may help promote the opposition to this project.

For example:

1. (LSU Medical School) will receive significant dedicated revenues for cancer research

• I thought this idea had been abandoned some time ago. The last figures I saw suggest that in a perfect world there might be a few hundred thousand per year for cancer research, almost the cost of one doctor.
  

2. This low impact, low density development on property already properly zoned,…

• The tallest building in Old Mandeville
• The highest density in Old Mandeville
• The largest parking lot in Old Mandeville
• The most healthy live oak trees cut in Old Mandeville in decades
• The current ordinance before the Council, Ordinance 23-16, seeks to re-zone the property
• Up to 600+ more cars introduced to Old Mandeville on any given day
  These revelations are not in dispute and do not reflect a low impact, low density development on property already properly zoned.
  

3. Age restricted active adult apartments (average resident age 72-74)

• Wow, they told Planning and Zoning that the age restriction was 55+. Why the change? Is that to try and externally adjust some of the traffic analysis assumptions?
  

4. A waterfront restaurant open to the public

• Wow, they told Planning and Zoning that the restaurant was for residents inside Sucette so it would not add to the area traffic problem.
• Which is it? Just insiders, or market the restaurant to everybody?
• Is this one story for Planning and Zoning and one for the public?
  

5. Isolated from Old Mandeville and the Sanctuary

• Is it part of Old Mandeville or is set apart?
• Does it fit in with the fabric of Old Mandeville, or is it separate?
• Are Old Mandeville and the Sanctuary somehow “negative” features of Mandeville?
  

6. Businesses will benefit from increased patronage from Sucette residents

• An increased benefit would always be expected regardless of what they built or where they put it. But in a city that historically has run multi-million dollar surpluses, it is not in the same condition as other area communities that do not have the benefit of the same largess. The big question, at what cost?
  

7. No line-of-sight intrusion for local residents

• Does this mean that the dreaded residents of “Old Mandeville” will not notice the largest glob of concrete and wood for miles? Why not just put up a sign that says Welcome to the Beau Rivage Casino!
  

8. $500,000 in new annual property taxes

• Of which 10% or less goes to the City of Mandeville
• The information on the City’s website presumably supplied by Sucette states that the annual property tax benefit for the City of Mandeville would be $27,000 – $34,000. Who to believe? What is the justification for paying with the numbers?
• It is only the City of Mandeville that will be burdened by the presence of Sucette
  

9. $736,000 in new annual sales taxes

• It is not known how this figure was derived, but again, less than 10% would go to the City of Mandeville.
• The information on the City’s website presumably supplied by Sucette states that the annual property tax benefit for the City of Mandeville would be $40,000. A far cry from $736,000/ year. Who to believe? What is the justification for paying with the numbers?
  

10. Full time employment for 80 people

• 80 new maids and waiters! Hasn’t anybody noticed that local restaurants are still struggling with staffing shortages? Where will they come from? Where will they park? How does it help to add to a manual / service labor shortage?
  

This does not include any details on compatibility, say for example, how that Sysco tractor trailer food supply truck (or any other commercial truck that would be expected to come in) would get up either Antibes (east or west) street without tearing up the curbs and grounds. Hint: there is no other way than Antibes.

Oh, and how does that wedding venue with 100-200 guests plus live music situated 100′ from Mariner’s Island residents fit into the residential environment? It doesn’t because it is the insertion of a loud commercial venture into a residential area. That is not a compatible use. This is not a mystery or a subtle conclusion, and more importantly, it is not fair to the residents of Mariner’s Island.

No, upon reflection, this mail out is a gift by Sucette to the beleaguered residents of that “Old Mandeville”. It highlights to a wider group of citizens all of the problems with this ill-conceived project. Take it to Slidell, Gulfport or Biloxi where it fits.

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:

1. a select number of Commission members lacked the requisite number of training hours;
2. a commissioner made a public misstatement of law at a commission meeting;
3. a member of the Parish council and the Parish President made public statements in favor of the zoning map amendment;
4. the Commission and Parish Council relied, inappropriately, on an oral promise from the zoning applicant about how the subject property would be used;
5. a Council member worked with the zoning applicant in advance of the public hearing;
6. the Commission failed to consider or suggest that a Planned Unit Development District be implemented;
7. the Commission and Parish Council failed to consider review criteria relevant to the West Feliciana Parish Ordinances and a zoning map amendment; and,
8. 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.