Posted by: Patricia Salkin | September 17, 2011

LA appeals Court Remands Case to Determine Whether Moratorium was Improperly Imposed

Plaintiffs entered into a purchase agreement for their property with a buyer desiring to develop a high-density, multi-unit housing facility for the elderly.  At the time of the purchase agreement, the property was zoned for mixed commercial use.  However, the Parish Council subsequently adopted a resolution calling for a zoning and land use study of plaintiffs’ property and surrounding properties, with the stated intent to rezone the properties as a suburban residential district.  Pursuant to the Parish Code, a moratorium was imposed for one year on the issuance of building permits in the area covered by the study, eventually resulting in rezoning most of plaintiffs’ property into single-family residential use.  Although these changes were consistent with the Parish’s 2003 Comprehensive Land Use Plan, they killed the buyer’s project.  Plaintiffs sued buyer Volunteers of America to enforce the purchase agreement and challenged Jefferson Parish’s moratorium and rezoning as a taking without just compensation.

The court reversed the grand of summary judgment and remanded for further proceedings to determine the credibility of witnesses and subjective facts in order to resolve whether the Parish Council’s actions were an abuse of discretion or excessive use of power. Plaintiffs asserted specific facts, including (1) the moratorium was imposed in response to announced development plans by the buyer; (2) the final zoning imposed by the Parish Council was inconsistent with prior zoning actions calling for mixed commercial use of the property for over twenty years; (3) the ordinance providing for the moratorium was introduced without prior notice and in bad faith, so much so that the Parish Council subsequently advertised and readopted the same ordinance; (4) one councilman introduced the ordinances and zoning studies with specific intent to block the development of the property, including statements that occupants of such developments are “ignorant or lazy” and that he did not desire Orleans Parish residents moving into Jefferson Parish; (5) written notice for the rezoning was not provided to plaintiffs except for a zoning change sign posted on the vacant property; and (6) the proposed development complied with mixed commercial use of the property based on letters from the Parish Planning Department to the financer.  In addition to these asserted facts, the trial judge improperly indicated in his oral ruling that he was considering the eventual merits of plaintiffs’ suit.  Therefore, summary judgment was not appropriate.

Berry v. Volunteers of Am., Inc., No. 10-CA-832, 2011 La. App. Lexis 487 (La. Ct. App. 4/26/2011)

The opinion can be accessed at: http://scholar.google.com/scholar_case?case=1998814795856650048&hl=en&as_sdt=2&as_vis=1&oi=scholarr

Special thanks to Gus B. Bauman & Aron H. Schnur of Beveridge and Diamond for providing this summary for the 2011 ALI-ABA Land Use Institute.


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