Posted by: Patricia Salkin | January 8, 2016

LA Appeals Court Upholds City’s Discretion to Deny Site Plan Approval for Proposed Use as of Right

Editor’s Note: This case is reprinted with permission from Bond Case Briefs. Special thanks to the new editor who is maintaining the legacy of founders Charles and Rita Carlson.

Property developers brought action against city for wrongful denial of its site plan to build a thrift store, the construction and operation of which was a “use by right” within the property’s zoning classification, after city’s decision was overturned. The District Court entered judgment in favor of city. Developers appealed.

The Court of Appeal held that:

City retained discretion to deny plan but denial was subject to strict scrutiny, and

Denial of plan was a discretionary act that was genuinely based in city’s attempt to ensure that use of property comported with the public interest, and thus city was immune from suit.

A municipality retains the discretion to deny a site or subdivision plan submitted in accordance with “use by right” zoning, but that denial is subject to strict scrutiny and the zoning ordinances and actions will be construed in favor of the use proposed by the owner.

City’s action in denying developers’ site plan to build a thrift store, construction and operation of which was a “use by right” within property’s zoning classification, was a discretionary act that was genuinely based in its attempt to ensure that use of property comported with the public interest, and thus immunity applied to shield city from liability for claim of wrongful denial of plan, even though city’s action was ultimately overturned. City’s decision was based in part upon plan’s provision for access into and out of store and the detrimental effect on traffic that the proposed access allowed, and store tenant did not approve plan after it was ultimately approved by trial court and instead asked developers to change plan’s proposed access to property.

GBT Realty Corp. v. City of Shreveport, 2015 WL 5717200 50104 (La.App. 2 Cir. 9/30/15)


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