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G&H Development, LLC v. Penwell

United States District Court, W.D. Louisiana, Shreveport Division

May 27, 2015

G&H DEVELOPMENT, LLC,
v.
NANCY PENWELL, ET AL

MEMORANDUM RULING

S. MAURICE HICKS, Jr., District Judge.

Before the Court are three dispositive motions (Record Documents 88, 89 & 92) filed by Defendants, the Benton-Parish Metropolitan Board of Adjustment ("Board of Adjustment"), the Benton-Parish Metropolitan Planning Commission ("Benton-Parish MPC"), the Bossier Parish Police Jury ("Police Jury"), and the Parish of Bossier ("the Parish").[1] The motions seek dismissal of Plaintiff G&H Development, LLC's ("G&H") federal substantive due process claims related to Subdivision Plat Applications 1 and 2. Defendants also address G&H's claims under the Louisiana Constitution and its state law claims, including a request for this Court to decline supplemental jurisdiction over any remaining state law claims. G&H has opposed all three motions. See Record Documents 106, 107 & 110.

For the reasons set forth below, the defense motions (Record Documents 88, 89 & 92) are GRANTED. G&H's federal and state substantive due process claims relating to the Subdivision Plat Applications are DISMISSED and all remaining state law claims are DISMISSED WITHOUT PREJUDICE.

I. BACKGROUND.[2]

G&H is the owner of certain property comprising 55 acres, more or less, located in Section 24, Township 20 North, Range 14 West, Bossier Parish, Louisiana, (the "Property") within the jurisdiction of the Benton-Parish MPC. On June 10, 2012, G&H filed an application with the Office of the Benton-Parish MPC (the "Office") for rezoning of the Property from its current classification of Residence-Agriculture R-A ("R-A") to the One-Family Residence R-1 ("R-1") classification (the "Rezoning Application"). This Rezoning Application was filed in order for G&H to subdivide and develop the Property into an urban type development of 154 individual, small lots each containing single family dwellings. At the same time G&H filed the Rezoning Application, G&H also filed with the Office an application for approval of a subdivision plat ("Subdivision Plat Application 1").

Hearings were held by the Benton-Parish MPC on G&H's Rezoning Application and Subdivision Plat Application 1. There was considerable opposition by local residents to rezoning of the Property. (Rec. Doc. 1, ¶¶ 40-46); (Rec. Doc. 36, ¶¶ 42-52). At the public hearing, after G&H's presentation and subsequent discussion and review, the Benton-Parish MPC recommended denial of the Rezoning Application, and therefore and thereafter, declared Subdivision Plat Application 1 moot.

G&H appealed the Benton-Parish MPC's decision recommending denial of G&H's Rezoning Application and Subdivision Plat Application 1 to the Police Jury. On October 3, 2012, a hearing was held by the Police Jury in which members of the public opposed the Rezoning Application. During this hearing, G&H's attorney "stated that he believe[d] that Section 126-1161.4 of the Bossier Parish Code of Ordinances clearly applies to the proposed development in that it provides that the subdivision or imminent subdivision of open land into urban building sites makes reclassification necessary and desirable.'" Record Document 86, Exhibit 86 at 6. After G&H's presentation and subsequent discussion and review, the Police Jury upheld the Benton-Parish MPC's recommendation to deny the Rezoning Application. Because the Rezoning Application was denied, the Police Jury considered Subdivision Plat Application 1 moot, as the Police Jury believed the Property was not zoned correctly for a residential subdivision. G&H did not seek state judicial review of the adverse decision as permitted under La. R.S. § 33:4780.40.[3]

On November 9, 2012, Mr. J.D. Gill ("Gill"), on behalf of G&H, and G&H's attorneys attempted to submit a new subdivision application for the Property ("Subdivision Plat Application 2") to the Office. See Record Document 1 at ¶¶ 53-54); Record Document 36 at ¶¶ 59-60. The difference between Subdivision Plat Application 1 and Subdivision Plat Application 2 is the removal of only 11 lots from the original 154 lots. G&H agrees that the two subdivision plat applications are substantially similar. Defendants contend that because Subdivision Plat Application 2 was not accompanied by an application for rezoning, Ms. Nancy Penwell ("Penwell"), the Zoning Administrator of the Office, did not submit Subdivision Plat Application 2 to the Benton-Parish MPC. Penwell based this decision on an administrative interpretation of the applicable zoning ordinances. See Record Document 86, Exhibit 80 (Affidavit of Nancy Penwell Regarding Subdivision Application 2); see also Record Documents 50 & 51.[4] Penwell instructed G&H and its attorneys to direct any questions to the Parish Attorney, Mr. Patrick Jackson ("Jackson"). It does not appear that G&H and its attorneys consulted Jackson. Rather, they left Subdivision Plat Application 2 on Penwell's desk.[5] Defendants contend that Penwell rejected Subdivision Plat Application 2 and never submitted it to the Benton-Parish MPC. Rather, she forwarded Subdivision Plat Application 2 to Jackson.

Pursuant to a letter dated December 4, 2012, Jackson returned Subdivision Plat Application 2 to G&H based on Penwell's administrative interpretation of the applicable zoning ordinances. In his letter, Jackson informed G&H that it could file an appeal with the Board of Adjustment under Bossier Parish Code of Ordinances, Section 126-1139 (a)(1), if it disagreed with the administrative interpretation of Penwell.

G&H then filed an appeal to the Board of Adjustment. A public hearing of the Board of Adjustment was set for January 17, 2013. After the public hearing on January 17, 2013, the Board of Adjustment voted to deny the appeal, upholding Penwell's administrative interpretation of the zoning ordinances that Subdivision Plat Application 2 could not be accepted without an accompanying application for rezoning of the Property from R-A to R-1.

G&H subsequently requested an appeal of the Benton-Parish MPC and the Board of Adjustment's denial of a proposed subdivision plat before the Police Jury pursuant to a letter dated January 31, 2013. The Police Jury held a public hearing on March 6, 2013. At the public hearing on March 6, 2013, the Police Jury declined jurisdiction to decide the appeal and advised G&H that its appeal of the decision of the Board of Adjustment was to state district court pursuant to La. R.S. 33:4780.47(A), [6] not the Police Jury. G&H did not seek judicial review in the state court system, but rather filed the instant federal lawsuit on February 4, 2013.

II. LAW AND ANALYSIS.

A. Summary Judgment Standard.

Summary judgment is proper pursuant to Rule 56 of the Federal Rules of Civil Procedure when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Quality Infusion Care, Inc. v. Health Care Serv. Corp., 628 F.3d 725, 728 (5th Cir.2010).[7] "Rule 56[(a)] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir.2004).

"A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986). If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response. See Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir.1995).

If the movant demonstrates the absence of a genuine dispute of material fact, "the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine [dispute] for trial." Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141 (5th Cir.2004). Where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant, then summary judgment should be granted. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005). Where the parties dispute the facts, the Court must view the facts and draw reasonable inferences in the light most favorable to the plaintiff. See Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769 (2007). In sum, the motion for summary judgment "should be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied." Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2553.

B. Legal Analysis.

"Deprivation by the state of a protected interest in life, liberty, or property is prerequisite to a claim for denial of [substantive] due process." Shelton v. City of Coll. Station, 780 F.2d 475, 479 (5th Cir. 1986). If the plaintiff can establish an infringement upon a protected interest in life, liberty, or property, then he must also demonstrate that the defendant's infringement was arbitrary and capricious. See FM Properties Operating Co. v. City of Austin, 93 F.3d 167, 174 (5th Cir. 1996).[8] Additionally, "when challenges to... land-use decisions aspire to constitutional stature, [courts] view those decisions as quasi-legislative' in nature, and thus sustainable against a substantive due process challenge if there exists therefor any conceivable rational basis.'" Id . "In other words, such government action comports with substantive due process if the action is rationally related to a legitimate government interest." Id . Such government action will be declared unconstitutional only if it "is clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare." Id.

Defendants argue that G&H waived any potential protected interest it may have had in Subdivision Plat Applications 1 and 2 because it failed to appeal/seek judicial review pursuant to La. R.S. 33:4780.40 and 4780.47(A). Additionally, Defendants contend that G&H did not have a protected property right in approval of Subdivision Plat Applications 1 and 2. For the limited purpose of the instant ruling, this Court will assume there was no waiver and that G&H has established a protected property right. Thus, the Court will proceed to whether Defendants' actions in relation to Subdivision Plat Applications 1 and 2 were arbitrary and capricious and without any conceivable rational basis.

Federal Substantive Due Process Claim Against the Benton-Parish MPC

G&H argues that the Benton-Parish MPC "acted arbitrarily and capriciously for two reasons: (1) because the Benton-Parish Metropolitan Planning Commission lacked authority to zone (or rezone) G&H's property, thus giving a G&H a use by right, defendant's failure to approve the subdivision plat was arbitrary and capricious as a matter of law, and (2) because, even if the relevant zoning ordinances were applicable, G&H had a right to subdivide the property without a zoning change, making defendant's denial of the first subdivision plat arbitrary and capricious as a matter of law." Record Document 106. As to G&H's first argument, this Court has previously held that the Benton-Parish MPC had the authority to zone (or rezone) G&H's property. See Record Documents 155 & 156 (emphasis added). G&H's first argument is, therefore, foreclosed. Next, G&H argues that ...


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