JUDE G. GRAVOIS, Judge.
Plaintiffs, Thelma and Richard Berry, appeal a judgment in favor of defendant, the Parish of Jefferson, finding that the Parish's action in calling for a zoning and land use study of a 23-acre area in Terrytown, Louisiana, that included the Berrys' immovable property, which ultimately resulted in rezoning of the Berrys' property, was not arbitrary and capricious, and thus did not constitute a regulatory taking of the Berrys' property. For the following reasons, we affirm the trial court's judgment.
This matter, and the Berrys' related suit against Volunteers of America, Inc. ("the VOA"), have been the subject to two prior appeals to this Court. Pertinent facts were summarized by this Court in the second appeal in Berry v. Volunteers of Am., Inc., 10-832 (La.App. 5 Cir. 4/26/11), 64 So.3d 347, 348-349 ("Berry II"), to-wit:
(Footnotes added.)
In Berry II, this Court reversed the grant of summary judgment in favor of the Parish, finding that the matter was inappropriate for summary judgment because it required judicial determination of subjective facts, such as the Parish's motive, intent, good faith, and/or knowledge. Berry II, 64 So.3d at 350. Therein, this Court found that the Berrys' opposition to the Parish's motion for summary judgment alleged facts to sufficiently meet their burden under La. C.C.P. art. 967 and properly placed at issue whether the Parish's action in calling for the zoning and land use study in 2007, and the resultant rezoning of the Berrys' property, was a proper exercise of the Parish's zoning authority or was in bad faith.
Trial on the merits of the matter was held on January 26 and 27, 2015. The trial court rendered judgment on March 2, 2015, dismissing the Berrys' suit against the Parish. In its reasons for judgment, the trial court stated:
The Berrys moved for a devolutive appeal, which was granted. On appeal, in their first assignment of error, the Berrys argue that the trial court erred in failing to find that the Parish's action in calling for the zoning and land use study, and the resultant rezoning of their property, was arbitrary and capricious. In their second assignment of error, the Berrys argue that the trial court erred in failing to award monetary damages in their favor.
The testimony adduced at trial reveals the following:
Mr. Berry testified that he was a real estate broker, and that he and his wife purchased the properties in 1998 and 2000 with the intent to build an office building for his company's use on the front parcel and perhaps a walking trail on the rear parcel. However, he later decided to keep the property for investment purposes. He testified that no one from the Planning Commission or the Parish ever sent him a letter or other notification regarding the zoning study of his property. However, on cross-examination, he admitted that he filed his first lawsuit in the matter within a week of the time the zoning study was called, thus indicating that he had actual notice of the proceedings. He testified that he did not appear before the Planning Commission, nor did his expert witness or his attorney, because he was not personally notified by letter of the proceedings, and additionally he felt that the process was already "rigged" against him.
Jefferson Parish Councilman Chris Roberts testified that he was the councilman for the district that included Terrytown and the study area in 2006, when he first learned of the proposed VOA project. Mr. Roberts testified that he learned of the project through the media. He said the VOA had a housing development in Algiers similar to the one planned for Terrytown and that this development had serious issues with crime, including the rape of an elderly resident. He said that he had asked the VOA how they had responded to the problems in the Algiers development,
Mr. Roberts testified that at the time in question, the west bank of Jefferson Parish had a disproportionate share of high density subsidized housing and that his district in particular had a disproportionate share of that. As councilman, he considered it his duty and responsibility to learn about the facts of the proposed VOA project and to consider his constituents' concerns about the project as well. He testified that after Hurricane Katrina, he studied the subsidized housing in his and other areas of the Parish and was concerned about crime, diminished quality of life therein, and low academic scores of children residing in high density subsidized housing. He said that high density housing developments experience a disproportionate share of criminal activity compared to low density housing. He also knew that some civic organizations in his area were against the project and additional high density subsidized housing.
Mr. Roberts testified that he called for a zoning and land use study of the Berry property and the surrounding area in order to properly study the Parish's zoning and the Land Use Plan. The proposed high density development was inconsistent with the Land Use Plan for the property, which was designated as low to medium density residential. The current zoning, multi-use corridor district ("MUCD"), allowed for building of a high density residential development. He stated that his actions were consistent with the Parish's land use policy of the preservation of existing residential neighborhoods.
Mr. Roberts testified that he also sponsored an action of the Council to limit the ability of the Louisiana Housing Finance Agency to give tax credits to projects such as this without local approval. His motivation for this action was one of timely notice to the Jefferson Parish Council of such proposed projects, as he first learned of the VOA project through the newspaper.
The Berrys' expert witness in planning and zoning, Steven Villavaso, testified that
Mr. Villavaso also felt that the study area was too small and tended to view the Berry property in isolation. He felt the study area should have included more of the Behrman Highway corridor to the north, as well as the Belle Chasse Highway corridor south of the property, which is heavy commercial, in order to properly capture the "zone of influence" surrounding the Berry tracts. He noted other commercial uses on properties within the study area fronting on Behrman Highway, including a day care center, a bar, and a dialysis center, as well as a children's group home.
On cross-examination, Mr. Villavaso agreed that electric substations and schools were permitted uses within R1-A zoning. He acknowledged that MUCD zoning permitted other such land uses as all night fast food locations, car washes, and bars. He also agreed that if the study area had been "expanded," it would have included more R1-A zoning located nearby, including an abandoned golf course on the other side of Behrman Highway that was likely zoned R1-A, and a subdivision located west across the canal from the Berry tract.
Mr. Villavaso agreed that the rezoning of the Berrys' front tract to C-1 would still permit the building on that tract of a high density residential development like the one proposed by the VOA. He also agreed that the Land Use Plan of low/medium density and the prior zoning of MUCD were inconsistent and that calling for a study in an attempt to reconcile the two was good planning practice.
The zoning study was introduced into evidence through the testimony of Juliette Cassagne, assistant director of the Jefferson Parish Planning Department, who performed the zoning and land use study for Parish Planning Department in 2007 while she was a staff planner. She testified that she received the assignment in January of 2007, and the matter went to the Planning Advisory Board in November of that year. Ms. Cassagne testified that she was not told by anyone in the department specifically about the proposed VOA housing development, though she had read about it in the papers. When conducting the study, Ms. Cassagne said that she had to consider all potential uses of the property, and thus did not conduct the study with any objective with respect to the proposed VOA project. The study did not consider the Berry properties in isolation, but rather considered them in the context of the entire
To conduct the study, Ms. Cassagne researched the history of the property in the study area, including previous subdivisions and zoning efforts, in the geographic information system, a database maintained by the department. After conducting this research, she made several site visits to the area and surrounding property. She evaluated future land use, and then conducted a technical analysis to determine whether various proposed zoning changes would result in non-conforming land use, and what those possible consequences might be. Ms. Cassagne said that after a study is called, signs are posted on the property to alert the public that a zoning study is in progress and to invite the public's questions and input. She also said she received numerous phone calls from people who had seen the sign and wanted to know about the study. As the planner in charge, she was responsible for responding to these calls.
Ms. Cassagne explained that the study included having her work vetted by supervisors, after which the director of the planning department would make the final recommendation. After the final report is compiled, the matter is advertised for public hearing with the Planning Advisory Board. At the public hearing, citizens of the Parish may appear and speak for or against the recommended changes. As the planner who conducted the study, Ms. Cassagne was responsible for presenting the report to the Board. After a proposal is passed by the Board, the matter is presented to the Parish Council by the planning department's director, which happened in this case.
Ms. Cassagne testified that in conducting a study, planners are not limited to considering only the requested change, which in this case was from MUCD to R1-B. She was able to evaluate the existing zoning as well as potential zonings. The study's results rejected the proposed zoning of R1-B across the study area because the study revealed that such zoning would result in 57 percent nonconforming use, and instead adopted zoning that resulted in only 7 percent nonconforming use with the new zoning. The study recommended that properties in the study area with direct frontage on Behrman Highway be rezoned to C-1, which is neighborhood commercial with the commercial parkway zone overlay on top of that. Properties that fronted on Peter Street and the unbuilt Alto Street were recommended to be zoned R1-A, and a small triangular piece of property closest to the intersection of Behrman Highway and Belle Chasse Highway, where a bar was located, was kept MUCD. Thus, the Berry tract fronting on Behrman Highway (the front tract) received C-1 neighborhood commercial zoning, and the tract fronting on Alto Street (the rear tract) received R1-A zoning.
Ms. Cassagne testified that with the new zoning, there was no longer a conflict between
The Parish called Michael Lauer as an expert witness in land use and planning. Like Mr. Villavaso, the Berrys' expert witness in planning, Mr. Lauer agreed that there was conflict between the Parish's zoning classification of the Berry properties and the Land Use Plan designation. He also opined that in those circumstances, "best planning practices" called for a zoning and land use study to be conducted. He felt that the Parish's action in calling for the study, as well as the resultant rezoning, met the stated goals in the comprehensive zoning plan of promoting the public health, safety and welfare by preserving the character of surrounding residential neighborhoods.
A property owner holds property subject to the police power of the Parish, and does not have a vested property interest in the existing zoning of property. Glickman v. Parish of Jefferson, 224 So.2d 141 (La.App. 4th Cir.1969). The Fifth Amendment prohibition against taking private property for public use without just compensation does not guarantee the most profitable use of property, Goldblatt v. Town of Hempstead, 369 U.S. 590, 592, 82 S.Ct. 987, 989, 8 L.Ed.2d 130 (1962), and a diminution in value, standing alone, does not establish a taking and neither is being deprived of a parcel's most profitable use ("highest and best use"), without more, a taking. Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 131, 98 S.Ct. 2646, 2663, 57 L.Ed.2d 631 (1978).
In order to prove that the Parish acted in an arbitrary and capricious manner, the Berrys must demonstrate that the result of the actions taken by the Parish have no substantial relationship to the public health, safety, and welfare. Palermo, 561 So.2d at 493.
In their first assignment of error, the Berrys argue that the Parish's zoning and land use study that included the Berrys' property, which resulted in a moratorium on the issuance of building permits in the study area, and which ultimately resulted in rezoning of the Berrys' property, was done in bad faith by the Parish because it was done specifically to thwart and prevent the VOA's proposed high density, low income housing development for the elderly on the Berrys' property; and thus, the zoning change on the Berrys' property was arbitrary and capricious and constituted a regulatory taking of their property.
Upon review of the evidence presented in this case, we find that the Berrys failed to bear their burden of proof, and accordingly, the trial court did not err in finding that the Parish was not arbitrary and capricious in requesting the zoning and land use study, and that the result of the action taken by the Parish had a substantial relationship to the public health, safety,
The Berrys also argue that the zoning and land use study was of a "drive by" nature, stating that the study was not thorough. Ms. Cassagne's testimony refutes that charge. Her testimony showed that the study was thorough and considered, and included research into the zoning and land use history of the study area, as well as several site visits. Ms. Cassagne was also knowledgeable about the land uses and zoning in the areas immediately surrounding the study area and considered such in making her recommendations.
The Berrys also argue that imposition of the moratorium on new building permits was arbitrary and capricious. As the testimony and evidence revealed, both the Berrys' and the Parish's expert witnesses testified that the old zoning of MUCD was incompatible and at odds with the Land Use Plan designation of low/medium density residential, and when that situation occurs, good planning practices support the calling for a zoning and land use study. Therefore, under these facts, the evidence shows that the calling for the zoning and land use study was not arbitrary and capricious. The moratorium on the issuance of building permits is an automatic legal consequence of the imposition of a zoning and land use study. Given the fact that calling for the land use study was proper and not arbitrary and capricious, the resulting moratorium cannot be arbitrary and capricious either. It is settled that temporary moratoria imposed pending zoning decisions do not constitute takings requiring just compensation. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 337, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002).
The Berrys also argue that the study area of just over 23 acres was unreasonably small. They argue that the study
The Berrys also argue that the new zoning is arbitrary and capricious. However, whenever the propriety of a zoning decision is debatable, it will be upheld. Palermo, 561 So.2d at 493. The Berrys' own expert testified that determining the proper zoning in a transitional area, such as where the Berrys' property is located, is "debatable." And, it has further been shown that the new zoning bears a substantial relationship to the public health, safety, and welfare. Accordingly, the Berrys have not shown that the new zoning is arbitrary and capricious.
The Berrys also argue that their property was reverse spot-zoned, citing Monte v. Parish of Jefferson, 04-1059 (La. App. 5 Cir. 2/15/05), 898 So.2d 506. However, that case is distinguishable. Spot-zoning is defined therein as:
Id. at 511.
Here, however, the Berrys' properties were not rezoned in isolation from surrounding properties, but they and other properties within the study area were rezoned in harmony with each other. The Berrys argue that it was spot-zoning because theirs was almost the only undeveloped property to be rezoned and that the other properties were relatively unaffected by the rezoning because they were already developed as commercial enterprises. However, this is not the aforementioned definition of spot-zoning. The Berrys also cite Four States Realty Co. v. City of Baton Rouge, 309 So.2d 659 (La.1974), but this case is inapposite. The Berrys' properties are not an "island" of special zoning surrounded by zoning of another classification.
Upon review, we find that the evidence presented in this case is quite clear and convincing that the new zoning—which applies not only to the Berrys' properties, but also to other properties in the study area—was rationally related to the
For the foregoing reasons, we find that the Parish's action in calling for the zoning and land use study, the resulting moratorium, and the ultimate rezoning, was not arbitrary and capricious, but was shown to be rationally related to the public safety, health, and welfare. Accordingly, the Berrys' assignment of error that the trial court erred in failing to find that the Parish's action in calling for the zoning study, and the resultant rezoning of their property, was arbitrary and capricious is without merit.
In their second assignment of error, the Berrys argue that the trial court erred in failing to award monetary damages in their favor. Because we have found that the Parish's action in calling for the zoning and land use study, and the resultant rezoning of their property, was not arbitrary and capricious, we likewise find that the trial court did not err is failing to award monetary damages in favor of the Berrys. This assignment of error is likewise without error.
For the foregoing reasons, we affirm the trial court's judgment in favor of Jefferson Parish and against the Berrys.