A Louisiana Appeals Court overturned a trial court’s grant of summary judgment to the Parish of Jefferson dismissing a claim by residents that their property had been arbitrarily and capriciously rezoned to prevent the construction of a high-density, multi-unit housing development for the elderly.
Plaintiffs, Mr. and Mrs. Richard Berry, owned two contiguous parcels of property, totaling 4.4 acres, which were zoned part of a Multiple Use Corridor District where mixed commercial uses were allowed. The Berrys were approached by Volunteers of America, Inc. (VOA) about purchasing the property to build a senior housing complex, a use that was in line with the parcels’ zoning at that time. The parties entered into a purchase agreement for the property in October 2006 and the VOA began the process of developing site plans and other required steps to construct the housing complex. Two letters, written by the Parish Planning Department to the project finance group, the Louisiana Housing Finance Agency, confirmed that the Berry property was properly zoned for VOA’s proposed use.
In March 2007, the Parish Council passed a resolution calling for a zoning and land use area study, with the intent of eventually reclassifying the existing zoning for the area around the Berry property, and imposed a one year moratorium on the issuance of building permits in that area, halting the VOA project. The study concluded with a zoning change, in December 2007, making zoning on a portion of the Berrys’ lot Neighborhood Commercial, and the remainder Single-Family Residential. The changes were found to be partially consistent with the Parish’s 2003 Comprehensive Land Use plan, but were inconsistent with the VOA’s proposed use there, and effectively killed the project.
The Berrys filed two separate suits relating to the zoning change. The first suit, filed in February 2007, sought enforcement of the Berrys’ purchase agreement with the VOA, as well as an injunction preventing the Parish from using the moratorium and land use study to effectively delay the VOA project. The trial court in that suit initially sustained an exception of prematurity, filed by the Parish, but that exception was overturned by the Louisiana Court of Appeals and the Berrys were permitted to proceed with their suit. Once the zoning change was finalized, the Berrys filed a second suit against the parish challenging the moratorium and rezoning of their property on the grounds that the action violated their constitutional right to contract, affected a taking of their property without just compensation, and violated Louisiana’s constitutional prohibition on age discrimination. The cases were consolidated, and were the basis of the appeal in question. Defendants in the consolidated case included the VOA and the Parish of Jefferson.
In their petition for damages, the Berrys cited several specific incidents which they believed demonstrated the Parish’s bad faith in dealing with their situation. The alleged incidents ranged from on-the-record comments by Council members that the project would draw “poor New Orleanians” from “public housing complexes” to the parish, open criticism of the project by Parish officials before the VOA was able to make its presentation to the board, and actions taken by the board “contrary to customary procedure” to “block” the project because it would provide housing to “low income, minority, elderly, and disabled” residents. The Berrys filed a Memorandum opposing the Parish’s motion for summary judgment, attaching twenty-four exhibits intended to demonstrate specific instances of Parish officials acting in bad faith, including letters, resolutions, reports, and affidavits. Despite the Berrys extensive submissions, the trial court granted summary judgment in favor of the Parish, dismissing the Berrys case. The Berrys appealed.
On appeal, the Berrys argued that the trial court improperly granted summary judgment in favor of the Parish despite the fact that the Berrys had made allegations of bad faith and abuse of power, which presented genuine issues of fact for the court to consider. The Berrys argued, and the appellate court agreed, that resolving the question of whether the Parish Council had abused its power with the intent of thwarting the VOA project or whether the Council had validly exercised its power, required determining “the credibility of witnesses” and “subjective facts,” making the issue unsuited to resolution through summary judgment. Further, the appellate court found that the trial court “was to a certain extent considering the eventual merits of the Berrys’ suit” when making the summary judgment decision, which was improper.
The appellate court reversed the trial court’s grant of summary judgment and remanded the case to the trial court for further action.
Berry v. Volunteers of America, 2011 WL 1565967 (La. Ct. App., 5th Cir. 4/26/11)
The opinion can be accessed at: http://caselaw.findlaw.com/la-court-of-appeal/1565030.html
