Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana. Trial Court Nos. 130,698 & 130,699. Honorable Parker Self, Judge.
THE SMITH LAW OFFICES, L.L.C., By: Eskridge E. Smith, Jr., Linda Lea Smith, Counsel for Appellants.
DUNLAP FIORE, L.L.C., By: John B. Dunlap, III, Jennifer A. Fiore, Susan N. Eccles, Hunter R. Bertrand, Counsel for Appellees.
Before DREW, LOLLEY & PITMAN, JJ.
[49,471-CA La.App. 2 Cir. 1]
In these consolidated cases, Plaintiffs Sharon Anderson and Carl Anderson, et al., and James Waggoner and Colleen Waggoner, et al., appeal the trial court's granting of an exception of no cause of action filed by Defendants Bossier Parish Police Jury, Office of the Bossier Parish Engineer, Joseph " Butch" Ford, Jr., in his capacity as Bossier Parish Engineer, and Owen & White, Inc. For the following reasons, we affirm.
This case previously came before this court on an exception of prescription in Anderson v. Bossier Parish Police Jury, 45,639 (La.App.2d Cir. 12/15/10), 56 So.3d 275. In that case, this court set forth the facts of this case and the arguments in Plaintiffs' petitions as follows:
The plaintiffs in docket number 45,639 [49,471] are residents of Pecan Grove, a manufactured housing subdivision. The plaintiffs in docket number 45,829 [49,472]
are residents of Shadow Ridge Estates, a housing subdivision. Both subdivisions are located in Bossier Parish close to Red Chute Bayou. These cases arise from the enactment by the Bossier Parish Police Jury of an ordinance which became effective on September 3, 2008, adopting recommendations by the Federal Emergency Management Agency (" FEMA" ) and placing portions of the plaintiffs' property in the floodway of Red Chute Bayou rather than in the flood zone as they were previously classified. In a flood zone, the foundations of buildings must be placed a certain distance above the base flood elevation. However, because the property is now classified as being in the floodway, encroachments are prohibited, including fill, new construction, substantial improvements, and other developments unless the owners obtain a costly " No Rise" certificate from the parish stating that the proposed work on the property will not result in any increase in the flood levels within the community during the occurrence of the base flood discharge. The plaintiffs in both suits filed their claims in the trial court on August 28, 2009, within one year of the passage of the Bossier Parish ordinance, alleging that they did not receive proper notice of the change in [49,471-CA La.App. 2 Cir. 2] classification affecting their property and that they have suffered damages as a result of the reclassification of their property.
The Pecan Grove plaintiffs' suit was filed individually and on behalf of a class of similarly situated persons. They alleged that Bossier Parish commissioned a study in 2000 by the engineering firm of Owen & White, Inc. to comply with a FEMA request for redrawing or remapping of flood zones and floodways, in order to meet FEMA regulations regarding the purchase by landowners of flood insurance through the National Flood Insurance Program (" NFIP" ). In March 2004, FEMA gave the Flood Insurance Study (" FIS" ) and the Flood Insurance Rate Map (" FIRM" ) to the Bossier Parish engineer. In May 2004, the parish engineer presented the documents to the Bossier Parish Police Jury. . . .
FEMA placed notices of the proposed changes in the base flood elevation affecting areas including Red Chute Bayou in the Bossier Press Tribune on April 28, 2006, and May 5, 2006. FEMA provided information to the Bossier Parish Police Jury that a 90--day appeal period was in effect after the second publication in which any owner or lessee of property in the community who believed his or her property rights would be adversely affected by the base flood elevation determinations could appeal to the Bossier Parish Police Jury. No appeals were taken.
As required by federal regulations in order to qualify for flood insurance, the Bossier Parish Police Jury enacted ordinance number 4241(A) which became effective on September 3, 2008, adopting the FIS and FIRM submitted by FEMA. The effect of the ordinance was to place the Pecan Grove and Shadow Ridge Estates in the floodway instead of the flood zone. The Pecan Grove plaintiffs filed suit on August 28, 2009, claiming that they were deprived of their due process rights because they were not given proper notice of the FIS or FIRM and were not informed of the 90--day period to appeal the adoption of the FIRM in 2006. They sought damages for the taking of their property without just compensation, diminution in value of the property, increase in the cost of flood insurance, if available, expenses of moving manufactured homes, loss of the value of improvements, loss of mortgage
loans, increase in interest rates, loss of insurable value of property, loss of use and/or enjoyment of property and general damages including mental and emotional distress, embarrassment and humiliation.
The Shadow Ridge plaintiffs also filed suit on August 28, 2009, for damages and for certification as a class action, essentially [49,471-CA La.App. 2 Cir. 3] pleading the same facts as the Pecan Grove plaintiffs. Additionally, they alleged that in July 1993, James Bruce Waggoner and Colleen Waggoner bought a lot in Shadow Ridge, built a house, and have lived there since that time. In October 2004, the Waggoners purchased additional lots with the intention of developing the subdivision. Beforehand, in May 2004, Mr. Waggoner inquired of the parish engineer, Mr. Ford, regarding the requirements for developing the lots. He was not given any information about the new FIS report, the proposed FIRM, or the changes that would occur with the adoption of the FIRM. Mr. Waggoner began selling lots in December 2004. Permits were issued and new construction and improvements were made until the adoption of the ordinance which became effective September 3, 2008.
The Shadow Ridge plaintiffs claimed that the FEMA announcement published in the Bossier Press Tribune did not provide notice of the change in the status of the property being placed in the floodway. They alleged that after the passage of the ordinance, it had been shown that some or all of Shadow Ridge is above the base flood elevation for the 100--year flood and should not have been included in the floodway.
The Shadow Ridge plaintiffs also alleged that they were deprived of their due process rights under the United States and Louisiana constitutions in that they did not receive due process and proper notification of the proposed change in the status of the property and they did not have the proper opportunities to appeal the proposed change. Further, they claimed that the defendants negligently failed to determine whether Shadow Ridge and/or any and all parts thereof should actually be placed in the floodway by failing to make a proper investigation by survey, field study, or other means. They sought damages for the taking of their property without just compensation, diminution in value of the property, increase in the cost of flood insurance, if available, loss of mortgage loans, ...