STEWART, J.
At issue in this appeal is whether the trial court erred in denying a request for a preliminary injunction to enjoin the construction of a road located in the City of Shreveport on the grounds that neither the approval of the governing authority nor the necessary permits have been obtained. For the reasons set forth in this opinion, we find that the trial court did not abuse its discretion in denying the preliminary injunction, and we affirm the trial court's judgment.
This matter is enmeshed in the controversy surrounding the possible future extension of Louisiana Highway 3132 ("3132") south of its present terminus at Louisiana Highway 523, which is also known as Flournoy-Lucas Road in the City of Shreveport and will be referred to as such in this opinion. The road at issue, designated as Forbing Ridge Road, is being constructed south of Flournoy-Lucas near its intersection with 3132 in an area that is within the corridor for the extension of 3132. As discussed infra, the road is being constructed to satisfy a stipulation included in ordinances that rezoned property for the development of the Esplanade Subdivision ("Esplanade").
The future route of the 3132 extension is at the heart of a suit for declaratory and injunctive relief filed on September 4, 2012, by Willis-Knighton Health System, Inc., a/k/a Willis-Knighton Medical Center ("Willis-Knighton") and the Finish 3132 Coalition, L.L.C., under Docket No. 562,337. Defendants named in the suit include the Northwest Louisiana Council of Governments ("NLCOG"); the Shreveport Metropolitan Planning Commission of Caddo Parish ("MPC"); the Louisiana Department of Transportation and Development ("DOTD"); the Shreveport City Council ("City Council"); Buchart-Horn, Inc., a consulting firm that prepared the Stage "O" Study concerning feasible alternative routes for the 3132 extension; Cedric Glover ("Mayor Glover"), individually and as mayor of the City of Shreveport; Ron Norwood ("Norwood"), individually and as city engineer for the City of Shreveport; J. Kent Rogers, individually and as the executive director of the NLCOG; Timothy A. Larkin ("Larkin");
On November 19, 2012, Willis-Knighton filed a second suit under Docket No. 564,141 against Mayor Glover and Norwood, in their individual and official capacities, the City of Shreveport, and the Larkin defendants. The petition alleges that the Larkin defendants are proceeding with construction without approval of the MPC and without having applied for and obtained the permit and City Council approval required under Sections 78-55 et seq., of the Shreveport Code of Ordinances, for construction of a driveway, approach or entrance in a residential area of the city or upon or to property zoned for residential use. The petition alleges that Mayor Glover and Norwood committed ultra vires acts to aid the Larkin defendants to proceed without proper authorization. The petition prays for a temporary restraining order as well as preliminary and permanent injunctions to prohibit further ultra vires acts and to prohibit the Larkin defendants from conducting, performing, or carrying out construction of the road until they secure the necessary permits and approvals.
The trial court set both matters for a hearing to determine whether they should be consolidated or whether the filing of the second suit rendered the first moot. The defendants filed various exceptions, including an exception of lis pendens by the Larkin defendants in response to the second suit. On December 19, 2012, the trial court, in lieu of granting the exception of lis pendens, ordered the two cases consolidated and directed Willis-Knighton to amend and supplement its pleadings in Docket No. 562,337. The trial court also allowed Willis-Knighton to proceed immediately with its request for injunctive relief under Docket No. 564,141. An evidentiary hearing began that day and concluded on December 21, 2012, at which time the trial court denied Willis-Knighton's request for a preliminary injunction. This devolutive appeal followed.
The facts related here are taken from the testimony presented and documents introduced into evidence at the preliminary injunction hearing.
Larkin Railsback owns approximately 100 acres of land that lies to the north of Railsback Road at its intersection with Ellerbe Road and south of Bayou Pierre, which generally lies on an east to west axis north of Railsback Road and south of Flournoy-Lucas. Larkin North owns approximately 37 acres of land located between Bayou Pierre and Flournoy-Lucas.
By Ordinance No. 4724 of 2007, enacted by the Caddo Parish Commission as recommended by the MPC, the Larkin Railsback property was rezoned from R-A, Residence-Agriculture District, to R-1B, Suburban, One-Family Residence,
The record indicates that the requirement for a Flournoy-Lucas access was an effort to appease Railsback Road property owners who had concerns about increased traffic generated by the Esplanade. The initial plan was for a joint or shared access with The Glen Retirement System ("The Glen"), the owner of the property adjacent to that owned by Larkin North on Flournoy-Lucas.
After The Glen's decision, Larkin North began implementing plans to construct Forbing Ridge Road through its property from a bridge constructed over Bayou Pierre to Flournoy-Lucas near its intersection with 3132.
Also on April 12, 2012, Larkin wrote to Charles Kirkland ("Kirkland"), executive director of the MPC, to inform him of the planned improvements for roadway access between the Bayou Pierre bridge and Flournoy-Lucas. The letter states:
Larkin testified that he first asked Kirkland to verify that the road would satisfy the stipulation. Kirkland advised him to make his request to the MPC. In his testimony, Kirkland agreed that Larkin's letter was not an application for the MPC's approval of construction of the road. Rather, Larkin was looking for some guarantee or assurance that he would be able to proceed with building houses in Esplanade once the road was constructed. Kirkland's testimony was somewhat contradictory on the issues of whether the road is private or public and whether its construction required MPC approval. He explained that the MPC's subdivision regulations are not applicable because the road is not located on the property platted and approved for the Esplanade development and is not part of the master plan. Rather, it is located south of the subdivision property on raw, undeveloped land that is zoned residential.
Larkin North's request was denied by the MPC at a public hearing on May 2, 2012. A number of speakers voiced opposition, which mostly concerned the impact of the road on the corridor for the extension of 3132. There were also concerns about the effect of traffic on retirement homes and other residential developments along Flournoy-Lucas. The MPC adopted a motion "to deny the proposed roadway alignment for the primary and permanent access to Flournoy-Lucas Road for the Esplanade Development." The MPC indicated that it would consider at its next public hearing stipulation changes to Ordinance 4724 of 2007 regarding building permits and access. It appears no such changes were made.
Larkin appealed the MPC's denial to the City Council, which took up the matter on May 22, 2012. The City Council adopted a motion to remand the matter to the MPC with the request that it work with the property owner to reach some agreement that would allow for use of the "temporary unapproved construction road" and the issuance of building permits, with any residents using the Railsback Road entrance.
Again, Larkin appealed the MPC's decision to the City Council, which took up the matter on October 9, 2012. At this meeting, Larkin informed the council that he had obtained from DOTD a permanent access connection permit for the road to connect at Flournoy-Lucas; prior to this he had a temporary permit only. There was discussion among the council members as to whether Larkin was seeking permission to build the road or merely advice as to whether it would satisfy the stipulation. When asked whether the council could prohibit construction of the road, the city attorney opined that it could not because the road was required by Stipulation No. 3. Council members offered competing motions to uphold the MPC's decision, to modify it to state that the request presented an administrative question that must be decided by the planning director upon completion of the road, or to dismiss because the council does not provide advisory opinions. The City Council approved the latter and dismissed the appeal. It provided no definitive answer in response to Larkin's request.
As stated above, Larkin had by this time obtained from DOTD the access connection permit for connection of the road to Flournoy-Lucas. By letter dated October 10, 2012, Larkin informed Norwood that he intended to proceed with construction, and he submitted the construction plans, the construction contract, and a check from Larkin Railsback for an inspection fee equal to 5% of the contract amount ($51,904.78), as required by Sec. 78-42 of the Shreveport Code of Ordinances, discussed infra.
By letter dated October 26, 2012, Norwood informed Larkin that the items he submitted were acceptable and that the city engineer's office would provide the necessary inspection. The letter also informed Larkin that future dedication of the roadway would require approval of the plans by the director of the MPC and city engineer, as well as approval of the dedication by the City Council. That same day, the City of Shreveport issued Larkin North a land altering permit for clearing
Construction of Forbing Ridge Road began soon thereafter. At the preliminary injunction hearing, Ronald Carlson, the owner of the company constructing the road, testified that it was 70 percent complete and would be substantially complete by the end of January 2013. As explained by Craig, the road is constructed as a boulevard from its connection with the bridge at Bayou Pierre. The boulevard section has 14-foot concrete lanes that converge to two 12-foot asphalt lanes as the road nears Flournoy-Lucas, where it then flares to approximately 45 feet at the connection. The asphalt construction will accommodate any future need to change the roadway alignment at DOTD's direction. Because there is a median between the lanes on Flournoy-Lucas where the road connects, the road has right-in, right-out access only, in accordance with DOTD policy. According to the construction contract, the total construction cost is $1,052,095.00.
Willis-Knighton asserts that the trial court erred in denying its application for a preliminary injunction to enjoin and prohibit the Larkin defendants from proceeding with construction of the road.
Injunctive relief is a harsh, drastic, and extraordinary remedy that is typically available only where the moving party is threatened with irreparable injury or loss and is without an adequate remedy at law. Louisiana Granite v. LA Granite Countertops, L.L.C., 45,482 (La.App.2d Cir.8/18/10), 47 So.3d 573, writ denied, 2010-2354 (La.12/10/10), 51 So.3d 733; Concerned Citizens for Proper Planning, LLC v. Parish of Tangipahoa, 04-0270 (La.App. 1st Cir.03/24/05), 906 So.2d 660. The preliminary injunction is an interlocutory procedural device that is designed to
Willis-Knighton argues that it is not required to prove irreparable injury because the construction of the road is unlawful. Before addressing the alleged unlawfulness of the conduct sought to be enjoined, we find that there is no prima facie showing of irreparable injury, or any injury to Willis-Knighton or Wells. Wells did not testify at the hearing; thus, there is no evidence of what, if any, injury she has allegedly suffered from construction of the road. Willis-Knighton sought to show through the testimony of its employee, Marian Dehan ("Dehan"), manager of community outreach for its retirement community, The Oaks, that construction of the road has adversely affected its business and residents. At most, Dehan's testimony suggests that there has been an increase in traffic on Flournoy-Lucas in recent years. This increase predates construction of the road during the past few months. Dehan admitted that Flournoy-Lucas had been a two-lane road when The Oaks began operating but that it is now a four-lane highway in the vicinity of 3132. Dehan also testified that The Oaks is located about a quarter of a mile from Forbing Ridge Road and that there are two traffic lights between them. Traffic concerns on the part of residents of The Oaks and the speculative effect of increased traffic on its occupancy rate are easily attributable to the widening of Flournoy-Lucas in the vicinity of 3132, not the construction of Forbing Ridge Road during the last few months. There is no evidence of injury to Willis-Knighton from the construction of Forbing Ridge Road.
In the absence of irreparable injury, we now examine whether the construction of Forbing Ridge Road is proceeding in violation of some prohibitory law. Willis-Knighton asserts that the Larkin defendants are proceeding without the permit and City Council approval required by Sections 78-51 and 78-56 of the Shreveport Code of Ordinances, which provide in relevant part as follows:
Under these provisions, the City of Shreveport authorizes by permit and /or City Council approval connections of driveways, approaches, or entrances to the streets of the city. Willis-Knighton contends that Larkin North cannot proceed with construction of the road and its connection to Flournoy-Lucas without the City Council's approval of the permit required by these ordinances. As pointed out by Willis-Knighton, the City of Shreveport, pursuant to its home rule charter, has broad police powers to regulate and control the roads and streets within its municipal limits and may make reasonable regulations for their use. Wes-T-Erre Dev. Corp. v. Terrebonne Parish, through Police Jury of Terrebonne Parish, 416 So.2d 209 (La.App. 1st Cir.1982), writ denied, 421 So.2d 251 (La.1982); Scott v. City of West Monroe, 95 So.2d 343 (La. App. 2d Cir.1957). A municipality under home rule charter is authorized to exercise any power and perform any function necessary, requisite, or proper for the management of its affairs that is not denied by law. La. Const. Art. 6, § 5(E); La. R.S. 33:361(A).
However, the power of local governments is limited in that "the police power of the state shall never be abridged." La. Const. Art. 6, § 9; City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170 (La.3/2/99), 739 So.2d 748; City of Baton Rouge v. Williams, 95-0308 (La.10/16/95), 661 So.2d 445.
As previously noted, Flournoy-Lucas is a state highway. The DOTD, as an exercise of the police power of the state, is authorized to supervise and regulate all traffic on highways in the state highway system. La. R.S. 32:2(A)(1). Pursuant to this broad authorization, the state through DOTD has the authority to prohibit entrance and exit from private property adjacent to the state highway right of ways. Lambert Development Co. Inc. v. State, 482 So.2d 859 (La.App. 2d Cir.1986), writ denied, 487 So.2d 432 (La.1986). This authorization is set forth by La. R.S. 48:344, which reads:
Pursuant to its authority to prohibit entrances and exits from private property adjacent to state highways, the DOTD issued
As noted by Willis-Knighton, the regulations governing issuance of access connection permits by DOTD provide that additional permits may be required by local governing authorities and that issuance of a DOTD access connection permit does not guarantee that the applicant will receive other required state or local permits. LAC 70:I.1501. In fact, Larkin North was required to obtain and did obtain a land altering permit. Norwood testified that this was the only permit required. No one testified otherwise. Additionally, Larkin Railsback, as the developer of Esplanade, paid $51,904.78 in inspection fees for the project to comply with Shreveport Code of Ordinances Sec. 78-42.
Now, we turn to Willis-Knighton's argument that the MPC's approval was required prior to commencement of construction. Willis-Knighton bases this argument on stipulations included in the zoning ordinances, No. 4724 and No. 5070. According to Willis-Knighton, the ordinances include a stipulation providing for development of the property in substantial accord with the site plan and any significant changes requiring further review and approval by the MPC. They assert that the road is a significant change from the initial plan for joint access with The Glen that requires MPC approval.
Enforcement of zoning ordinances enacted by the City Council upon recommendation of the MPC is governed by La. R.S. 33:140.33
Under this provision, only adjacent or neighboring property owners who would be specifically damaged by a violation of a zoning ordinance may seek injunctive relief. As previously addressed, the record does not establish any injury to Willis-Knighton or Wells resulting from construction of the road. There is no prima facie showing that either Willis-Knighton or Wells, if considered adjacent or neighboring property owners, would be specifically damaged by construction of the road. For this reason, neither Willis-Knighton nor Wells is entitled to injunctive relief based on any alleged violation of the zoning ordinances in this matter.
Lastly, Willis-Knighton asserts that Forbing Ridge Road is a public road by virtue of a formal dedication and, that as a public road, it must approved by the MPC as provided under La. R.S. 33:140.14. This provision pertains to the legal status of the plan, meaning the master plan for the physical development of the City of Shreveport and its environs. In relevant part, La. R.S. 33:140.14 states:
The italicized language shows that La. R.S. 33:140.14 applies to public ways, places, or spaces, including schools and utilities, that are constructed, authorized, or financed by some city or parish body or other governmental board or official that
For these reasons, we find no abuse of discretion by the trial court in denying the preliminary injunction sought by Willis-Knighton and Wells.
We affirm the trial court's judgment with costs of appeal assessed to the appellants, Willis-Knighton and Karen Wells.
AFFIRMED.
DREW, J., dissents with written reasons.
DREW, J., dissenting.
The Shreveport City Council declined to grant a permit for the construction of Forbing Ridge Road, as required by Section 78-56 of the city ordinances.
The phrase "any streets of the city" properly pertains to all streets
Surely the defendants sought a permit from the council for a valid reason. If council approval was not necessary, why go through a meaningless theatrical process?
The permit was required, but not granted. For whatever reason, the council declined to act on the requested approval.
Accordingly, I respectfully dissent, as I would reverse the decision
APPLICATION FOR REHEARING
Before BROWN, STEWART, DREW, MOORE and LOLLEY, JJ.
Rehearing denied.
DREW, J., would grant rehearing.