Posted by: Patricia Salkin | January 19, 2016

LA Appeals Court Holds Parish’s Calling for a Zoning and Land Use Study, Which Resulted in Rezoning of the Plaintiffs’ Property, was Not Arbitrary and Capricious nor did it Constitute a Regulatory Taking

Plaintiffs, Thelma and Richard Berry, owned two contiguous parcels of property known as Lot 2 of Block 15 and Lot 2 of Block 16 of Elmwood Subdivision, Section “D”, on Behrman Highway on the west bank of Jefferson Parish. Volunteers of America, Inc. (“the VOA”) approached the Berrys about purchasing their property for development of a high density, multi-unit housing facility for the elderly. On October 13, 2006, the Berrys and the VOA entered into a purchase agreement for the property. However, on March 28, 2007, the Parish Council adopted a resolution calling for the implementation of a zoning and land use area study of “those properties generally bounded by Behrman Highway, Peter Street, Industry Canal and Oakwood Canal; with the intent of reclassifying the properties in these areas from their existing zoning and Future Land Use Map categories to R–1B Suburban Residential District”. The study concluded with the Parish Council adopting an ordinance on December 12, 2007 changing the zoning applicable to the Berry property from MUCD to C–1 (Neighborhood Commercial District) for the front portion of the Berry property along Behrman Highway, which was inconsistent with the VOA’s planned use of the property, and effectively killed the project.

The Berrys then sought to enforce their purchase agreement with the VOA, and to enjoin the Parish from using the moratorium imposed in conjunction with the study to prevent the issuance of a building permit for the Berry property. The trial court granted Parish’s Motion for Summary Judgement, which was reversed in Berry II. The trial court then heard the case on the merits and found the Council’s decision was not arbitrary or capricious. The Berrys moved for a devolutive appeal, which was granted. At the outset of the case, the court noted that a property owner holds property subject to the police power of the Parish, and does not have a vested property interest in the existing zoning of property. Moreover, in order to prove that the Parish acted in an arbitrary and capricious manner, the Berrys were required to show that the result of the actions taken by the Parish had no substantial relationship to the public health, safety, and welfare.

In support of its decision, the Parish introduced testimony that claimed the actions were consistent with the Parish’s land use policy of preservation of existing residential neighborhoods. Even the Berrys’ land use expert, Mr. Villavaso, acknowledged on cross-examination that calling for a study in an attempt to reconcile inconsistencies between the then-current zoning of the property and the Parish’s Land Use Plan for the property was good planning practice. The court agreed that the evidence favored the conclusion that the resultant rezoning met the stated goals in the comprehensive zoning plan of promoting the public health, safety and welfare by preserving the character of surrounding residential neighborhoods. Additionally, the moratorium on the issuance of building permits was an automatic legal consequence of the imposition of a zoning and land use study. Lastly, the court rejected that the rezoning constituted illegal spot-zoning because the Berrys’ properties were not rezoned in isolation from surrounding properties, but were rezoned in harmony with each other. Accordingly, the court affirmed the trial court’s finding that the Parish’s action in calling for the zoning and land use study, the resulting moratorium, and the ultimate rezoning, was not arbitrary and capricious.
Berry v Volunteers of America, Inc., 2015 WL 9436179 (LA App. 12/23/2015)

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