United States District Court, W.D. Louisiana, Shreveport Division
GAP FARMS, L.L.C.
TOWN OF ARCADIA, ET AL.
MAURICE HICKS, JR., CHIEF JUDQE UNITED STATES DISTRICT COURT
the Court are Defendants', Jesse Eugene Smith, Jr., in
his capacity as mayor, Arcadia Town Council, and Town of
Arcadia (collectively the “Defendants”), Motion
to Dismiss (Record Document 7) Plaintiff Gap Farms,
L.L.C.'s (“Plaintiff” or “Gap
Farms”) Complaint (Record Document 1) pursuant to
Federal Rule of Civil Procedure 12(b)(1) on the ground that
this Court does not have subject matter jurisdiction.
Plaintiff has opposed Defendants' Motion (Record Document
11). For the reasons set forth in the instant Memorandum
Ruling, Defendants' Motion to Dismiss is hereby
AND PROCEDURAL BACKGROUND
suit arises out of certain actions taken by the Mayor of
Arcadia, Jesse Eugene Smith, Jr. (the “Mayor”),
on behalf of the Town of Arcadia (“Arcadia”) and
as authorized by the Arcadia Town Council. The Mayor has
refused to grant a permit to Gap Farms to erect a fence or
barrier on its property. The property in question is located
north of Interstate 20 and adjacent to Highway 151.
See Record Document 1 at 3. In 2009, Gap Farms
applied for and was granted permission by the Town of Arcadia
to construct a road traversing its property; the plat and
road dedication were approved by the Mayor and recorded in
the conveyance records in late December that same year.
See id. at 2-3. In 2010, Gap Farms constructed a
road (“Gap Farms Road”) that runs parallel to
Interstate 20 and intersected Highway 151. See id.
at 3. There was a thirty foot road servitude from the center
of the road. See id. Outside of the road servitude
there was a ten foot utility servitude, it is this area that
is at issue. See id. The utility servitude is at the
center of the instant case.
a tract of property located to the north of the Gap Farms
property has been developed by Kiran of Monroe, L.L.C.
(“Kiran”). See id. Sometime in 2015,
Plaintiff alleges the Mayor, acting in his capacity as the
chief executive officer of the Town of Arcadia, granted a
“verbal permit” for Kiran to construct a large
concrete driveway across the property of Gap Farms to connect
to Gap Farms Road. See id. Significant efforts were
undertaken to construct a driveway across the private
property owned by Gap Farms. See id. When Gap Farms
objected to this construction, the Mayor allegedly instructed
the contractor to fill in the driveway. See id. at
4. Plaintiff also alleges employees of Arcadia performed work
on its property at the direction of the Mayor. See
on the dispute, expert surveyors were retained by the both
Gap Farms and Kiran. See id. It was ultimately
determined that neither the edge of the road nor the road
servitude overlaps, encroaches, or abuts in any way the
property of Kiran to the north. See id. Despite this
fact, Plaintiff alleges the Mayor has continually denied a
permit for Gap Farms to erect the fence or to place barriers
to stop damaging trespass of customers of Kiran who are
driving over Gap Farms' property to access nearby Gap
Farms Road. See id. The Mayor has put Gap Farms on
notice that any fence or barrier it places will be removed,
and has since removed a fence built by Gap Farms and more
recently removed curb stops on the property. See
Record Document 11 at 5.
December 23, 2015, Gap Farms was sued by Kiran in state court
who asked the court to issue a preliminary injunction and
declaratory judgment allowing Kiran to construct a driveway
connecting Kiran's property to the Gap Farms Road.
See Record Document 7-2 at 7. Kiran asserted the Gap
Farms Road utility servitude encroaches onto Kiran's
land, and, accordingly, the public is entitled to access
Kiran's property from the Gap Farms Road via the
servitude. See id. (This is the area at issue in the
present case.) In a consent judgment rendered on December 2,
2016, the Second Judicial District Court issued the following
FURTHER ORDERED, ADJUDGED, AND DECREED that the area
described and shown in red on Exhibit "A" attached
hereto as "Utility Servitude within Lot No. 5" is
owned exclusively by Gap Farms, L.L.C., subject to a utility
servitude pursuant to that Dedication made a pan of the
Subdivision Plat recorded in the Conveyance Records of
Bienville Parish, Louisiana on December 29, 2009, at Plat
Book "A", Page 180, Registry Number 2009-5396.
FURTHER ORDERED, ADJUDGED, AND DECREED that the area
described and shown in red on Exhibit 'A" attached
hereto as "Utility Servitude within Lot No. 5"
contains a minimum of .89 feet of immovable property, owned
exclusively by Gap Farms, L.L.C., that is located in the area
south of the Property Line but north of the Road Right of
Document 7-2 at 41.
15, 2017, Kiran submitted a supplemental petition in which it
stated Arcadia executed a permit for the use of the utility
servitude, which Arcadia then gave Kiran authority to build
the driveway. See Record Document 7-1 at 7. Kiran
argued Arcadia has possession of the utility servitude and
Gap Farms has no right to control the use of the surface
after dedicating it to the public for public use. See
id. The state court has not yet rendered a decision
regarding the legal and real rights to use the utility
servitude in question. See id.
Farms filed this action on May 3, 2017. See Record
Document 1. The original complaint included allegations that
this Court had subject matter jurisdiction under 28 U.S.C.
§ 1331, 42 U.S.C. § 1983 and 42 U.S.C. § 1988,
as well as supplemental jurisdiction under 28 U.S.C. §
1367. See id. In particular, Plaintiff alleged
causes of action pursuant to federal law for abuse of the
permitting process, including an unconstitutional granting of
a building permit to a non-owner and withholding of permit
issuance for Gap Farms to erect a fence or barrier on its
property. See id. at 5. It submitted these actions
constitute a violation of Plaintiff's substantive due
process guarantees of the Fourteenth Amendment. See
id. In the alternative, Plaintiff alleged that
Defendants' actions in limiting Plaintiff's right to
erect a fence or barrier and block trespassing traffic
constituted a "taking" within the meaning of
Article 1 § 4 of the Louisiana Constitution. See
id. at 8. The complaint filed by Plaintiff then
expressly denied asserting a taking under the Fifth Amendment
of the United States Constitution at the time of filing.