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River Street Ventures, L.L.C. v. The City of New Orleans

Court of Appeals of Louisiana, Fourth Circuit

September 25, 2019

RIVER STREET VENTURES, L.L.C.
v.
THE CITY OF NEW ORLEANS AND THE NEW ORLEANS CITY COUNCIL

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-07160, DIVISION "J" Honorable D. Nicole Sheppard,

          Madro Bandaries MADRO BANDARIES, P.L.C. COUNSEL FOR PLAINTIFF/APPELLEE

          Michael J. Laughlin ASSISTANT CITY ATTORNEY Shawn Lindsay DEPUTY CITY ATTORNEY Donesia D. Turner SR. CHIEF DEPUTY CITY ATTORNEY Churita H. Hansell CHIEF DEPUTY CITY ATTORNEY Sunni J. LeBeouf CITY ATTORNEY COUNSEL FOR DEFENDANTS/APPELLANTS

          Court composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge Dale N. Atkins

          Rosemary Ledet, Judge

          This case involves the denial of a conditional use permit. From the trial court's November 14, 2019 judgment granting a writ of certiorari and ordering the City Council to hold a final vote and to adopt a proposed ordinance issuing the conditional use permit, the City of New Orleans (the "City") and the City Council (the "Council") appeal. On appeal, the City and the Council also request costs. For the reasons that follow, we reverse the trial court's judgment and remand the request for costs.

         FACTUAL AND PROCEDURAL BACKGROUND

         The facts of this appeal are not disputed. River Street Ventures, L.L.C. ("River Street") seeks to construct apartment buildings on three vacant properties located on the riverfront in Algiers, Louisiana (collectively, the "Properties").[1] The planned apartments, due to the location of the Properties, are subject to height and density restrictions under the City's Comprehensive Zoning Ordinance ("CZO").[2] The height and density restrictions may be exceeded, but only by obtaining a conditional use permit.[3]

         To obtain a conditional use permit, the property owner (or an authorized agent) generally must apply first to the City Planning Commission (the "CPC").[4] The CPC, after considering the application, will forward it with a recommendation to the Council.[5] The Council will then determine whether to adopt an ordinance authorizing issuance of the permit.[6]

         Because River Street's planned apartment buildings exceed the CZO's height and density restrictions, River Street applied to the CPC for a conditional use permit. No majority of the CPC members, however, could agree as to a recommendation. Accordingly, the CPC forwarded the application to the Council with a "no legal majority" recommendation.[7]

         River Street's application was presented to the Council on April 19, 2018. The same day, the Council adopted a motion of modified approval of River Street's application (the "Motion").[8] Accordingly, River Street's application was referred the City's Law Department for the drafting of a proposed ordinance (the "Ordinance").[9]

         The Ordinance was subsequently introduced at a Council meeting on May 3, 2018.[10] After the required delay, the Ordinance was, on several occasions, placed on the Council's agenda; on each occasion, however, a vote on the Ordinance was deferred. Ultimately, the Council did not vote on the Ordinance within the statutory time period-effectively denying River Street's application.

         On July 20, 2018, River Street filed in Orleans Parish Civil District Court a "Petition for Writ of Mandamus, or Alternatively, Petition for Writ of Certiorari and for Judicial Review of the Action Taken by the City Council in Deferring the Ordinance, " naming as defendants the City and the Council. In the petition, River Street contended that the Council, having adopted the Motion, was required, under CZO, Art. 4, § 4.3.D.4(c), to adopt the Ordinance. River Street further contended that the Council's failure to adopt the Ordinance constituted a violation of a ministerial duty required by law and was, thus, arbitrary and capricious. The City and the Council opposed the petition, arguing that, notwithstanding adoption of the Motion, the Council retained legislative discretion as to the Ordinance and, thus, was not required to adopt, or even vote on, the Ordinance.

         On November 14, 2018, the trial court, reasoning that "the Council by its own law was required to vote and vote affirmatively to ratify [the] Ordinance, " found that "the Council acted arbitrarily and capriciously by both failing to pass the proposed ordinance and refusing to even vote on it." Accordingly, the trial court ordered the Council to "hold a final vote on [the Ordinance] [and] to adopt and ...


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