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Welch v. Planning & Zoning Commission of East Baton Rouge Parish & 2590 Associates, LLC

Court of Appeals of Louisiana, First Circuit

April 26, 2017

BOB WELCH & DANIEL HOOVER
v.
PLANNING & ZONING COMMISSION OF EAST BATON ROUGE PARISH & 2590 ASSOCIATES, LLC

         Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge, State of Louisiana Docket Number C608569 Honorable Janice Clark, Judge Presiding

          Alexis A. St. Amant, Baton Rouge, LA Counsel for Plaintiffs /Appellants, Bob Welch and Daniel Hoover

          Gwendolyn K. Brown Frank Gremillion Baton Rouge, LA Counsel for Defendant /Appellee, City of Baton Rouge & Parish of East Baton Rouge

          Brian L. McCullough Baton Rouge, LA Counsel for Defendant /Appellee, 2590 Associates, LLC

          Thomas E. Balhoff Judith R. Atkinson Carlton Jones, III Baton Rouge, LA Counsel for Intervenor /Appellee, Glasgow Partners, LLC

          BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ.

          WHIPPLE, C.J.

         Plaintiffs, Bob Welch and Daniel Hoover, appeal a March 2, 2016 judgment of the trial court, dismissing, with prejudice, plaintiffs' claims against the East Baton Rouge Parish Planning and Zoning Commission ("the City/Parish"). For the following reasons, in the instant matter, which we refer to as "Welch II, " we reverse the judgment of the trial court and remand the matter to the trial court.

         A full recitation of the pertinent facts and procedural history related to this litigation arising from the development of the Rouzan Traditional Neighborhood Development ("TND) is set forth in the companion cases of Welch and Hoover v. Planning and Zoning Commission of East Baton Rouge, 2016-0253 (La.App. 1st Cir. __/__/__) ("Welch I") and Welch and Hoover v. Planning and Zoning Commission of East Baton Rouge, 2016-0751 (La.App. 1st Cir. _/_/__) ("Welch III"), both also handed down this date.

         In Welch I, plaintiffs appealed an October 1, 2015 judgment of the trial court that dismissed plaintiffs' claims against a defendant, 2590 Associates, L.L.C. ("2590"). Finding merit to plaintiffs' arguments, we reversed the judgment of the trial court, granted plaintiffs' requests for injunctive relief and damages, and remanded the matter to the trial court to fix the specific amount of damages due to plaintiffs, based upon our finding that 2590 had disturbed plaintiffs' rights to a conventional predial servitude of passage.

         In Welch III, plaintiffs sought review of a March 21, 2016 judgment of the trial court, wherein the trial court declared that: (1) intervenor, Glasgow Partners, L.L.C, was entitled to temporarily relocate the servitude; (2) intervenor had permanently relocated the servitude in accordance with LSA-C.C. art. 748; and (3) plaintiffs were obligated to pay intervenor $6, 650.48 for property damage to Glasgow Partners' property. On review, we affirmed the trial court's damage award in favor of Glasgow Partners but reversed the judgment of the trial court in all other respects.

         In this appeal, plaintiffs seek review of a March 2, 2016 judgment of the trial court that dismissed plaintiffs' claims against the City/Parish. Plaintiffs' assignments of error are identical to those raised by plaintiffs in Welch III, involving claims against Glasgow Partners. However, in plaintiffs' reply brief, plaintiffs contend that the trial court also erred in dismissing their claims against the City/Parish because plaintiffs introduced evidence at trial showing that there was "a legal disturbance by the City[/]Parish by virtue of the Planning Commission's granting of defendants' [rezoning request for the Rouzan TND] and then making it a public record."

         While the trial court did not provide written reasons for the judgment dismissing plaintiffs' claims against the City/Parish, a minute entry detailing the reasons for the ruling states that plaintiffs' claims were dismissed based on the trial court's finding that:

the City/Parish acting within the scope of powers relative delegated to the Planning and Zoning Commission ... was well within its appropriate procedure and ... has not caused a disturbance of the plaintiff[s'] servitude...[further plaintiffs'] [s]ervitude of passages is not necessary inasmuch as public streets are ...

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