30-822 La.App. 2 Cir. 8/19/98, Bailey v. Parish of Caddo

• Decision Date: 19 August 1998
• Citation: 716 So.2d 523
• Parties: 30-822 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 523

716 So.2d 523

30-822 La.App. 2 Cir. 8/19/98

Jack Moore BAILEY, Sr., et al., Plaintiffs-Appellants, v. The PARISH OF CADDO, Defendants-Appellees.

No. 30822-CA.

Court of Appeal of Louisiana, Second Circuit.

Aug. 19, 1998.

Rehearing Denied Sept. 17, 1998.

Dannye W. Malone, Office of the Parish Attorney, Judi Milke, Assistant Parish Attorney, Wilkinson, Carmody & Gilliam by Mark E. Gilliam, Shreveport, for Defendants-Appellees.

Law Office of Jack M. Bailey, Jr. by Jack M. Bailey, Jr. and J. Allen Cooper, Jr., Shreveport, for Plaintiffs-Appellants.

Before NORRIS, BROWN and WILLIAMS, JJ.

[30-822 La.App. 2 Cir. 1] NORRIS, Judge.

This is a zoning case. The plaintiff, Jack Bailey Sr., owns a residential lot next to one owned by the defendants, Catherine Reed, her parents, grandmother and aunt (collectively, "the Reeds"). Bailey appeals a judgment which affirmed the actions of the Metropolitan Planning Commission ("MPC") and the Caddo Parish Commission ("CPC") granting the Reeds' request to subdivide their lot. For the reasons expressed, we affirm. Factual background

Jack and Dorothy Bailey Sr. own Lot 11, Moss Point, a small subdivision with large lots on Cross Lake. Their next door neighbors, the Reeds, own Lot 10; a plain "camp house" had stood on Lot 10 for years. In 1993 the Catherine Reed and her husband moved an existing house onto Lot 10 and improved it.

The controversy began, according to Mr. Bailey, in August 1994 when the Reeds cut down a stand of bamboo and shrubbery that separated the lots, moved construction materials onto Lot 10, and apparently prepared to build there. Mr. Bailey testified that he asked some questions and learned that the Reeds planned to have three houses on the single lot. He was incensed that this could happen next to his retirement home. He also learned that the Reeds had obtained a zoning certificate to build a house. Bailey immediately complained to the MPC which, after some investigation, revoked the zoning certificate.

Mrs. Reed asked the MPC's executive director, Mr. Kirkland, why their certificate had been withdrawn. He explained that apart from tax assessor records, he could find nothing to indicate that the property was multiple lots on which two houses could be built. Mrs. Reed replied that the property had been in her family for nearly 50 years and, since her childhood, she always understood that it had been partitioned into a north half, which she had purchased and was using as her [30-822 La.App. 2 Cir. 2] home, and a south half on which her parents intended to build. She added that since 1981 her family had paid taxes on two separate tracts; the assessor's office showed Lot 10 as resubdivided into Tracts 26 and 27, each consisting of slightly over one acre. Mr. Kirkland testified that at first it seemed that the Reeds intended to build a multi-family dwelling on the south half, but ultimately decided on one single-family house. They discussed the Reeds' options and he advised her to apply to the MPC for a formal resubdivision of Lot 10. She did so on August 30, in accord with Caddo Code of Ordinances, § 51-242(b).

The MPC examined the application, visited the site and prepared a Land Use Report which recommended granting the resubdivision. ¹ A hearing was held on September 7, at which Mr. Bailey and his son, attorney Jack Bailey Jr., spoke in opposition to the request. The MPC unanimously approved the resubdivision; Bailey now contends this occurred in an illegal executive session.

Mr. Bailey appealed the MPC's decision to the CPC, in accord with Caddo Ord. § 51-50. The matter was noticed in The Times; the CPC took it up at a work session on October 24 and at its regular meeting on October 27. At this meeting Mr. Bailey again spoke against the application, but Mr. Kirkland spoke in its favor. He defended the MPC's decision on the basis that of the original 13 lots in Moss Point Subdivision, seven had already been subdivided in one manner or another; he also stated that customarily people have come to rely on assessor's actions as a legal basis for building. The CPC approved the MPC's action by a vote of 8-1. ²

Mr. Bailey filed the instant suit in November 1994. He named as defendants the CPC, MPC, and the Reeds. He prayed for sundry relief: (1) an [30-822 La.App. 2 Cir. 3] order declaring Lot 10 re-zoned back into one lot; (2) removal of all but one single-family residence from Lot 10; (3) damages for diminution of the value of Lot 11; (4) attorney fees and costs; (5) civil rights damages for the commission of unconstitutional acts, under 42 U.S.C. § 1983; and (6) general and equitable relief. After long and contentious discovery, and numerous pretrial motions, trial was held in February 1997.

The trial testimony was essentially that outlined above. Mrs. Reed testified that in 1981 her grandmother and great aunt saw a lawyer about having Lot 10 formally partitioned; they executed an act of partition and prepared a plat which were filed in the conveyance records in January 1981, but they never pursued formal resubdivision with the MPC. Nevertheless the assessor had treated the tract as two lots since 1981. Mrs. Reed obtained two building permits and Hibernia National Bank had approved her prior construction loan, so she assumed the lot was properly subdivided. She admitted that Mr. Kirkland of the MPC had suggested she apply for resubdivision, but denied that she "conspired" with commission members to approve her request.

Mr. Bailey testified that his own house actually stood on a resubdivided one-acre lot. ³ Some years earlier, his brother had attempted to resubdivide this partial lot into two half-acre lots (thus creating three lots from the original two-acre tract), but someone from the MPC told him it was not possible.

Several other lots in Moss Point were also split or subdivided, although some of these occurred before the Caddo zoning ordinances took effect in 1958. Finally, there was much digressive, hearsay testimony about other residents' requests for resubdivision between 1981 and the present.

By written ruling, the District Court referred to Mr. Bailey's petition as a [30-822 La.App. 2 Cir. 4] "smorgasbord of complaints" but found no evidence to support them. It specifically rejected the arguments that the MPC and CPC were arbitrary and capricious in granting the Reeds' application and that the ordinances were unconstitutional. The court further noted that over one-third of the original lots were resubdivided, including Mr. Bailey's, so granting the Reeds' request was "consistent and compatible with the history and character of the neighborhood." The court also rejected the civil rights claims. Finally the court took under advisement whether the Baileys had properly pled and proved damages for "trespass and taking," viz. removing the bamboo fence. The court gave Mr. Bailey until June 10 to brief the issue, but he filed no brief. The court therefore concluded that the issue was not properly pled, and there was no evidence to support it. Judgment was rendered rejecting all of Mr. Bailey's claims.

Mr. Bailey has appealed, advancing 23 assignments of error.

Applicable law

Zoning regulation flows from the police power of governmental bodies and is valid if it bears a rational relation to the health, safety and welfare of the public. La. Const. Art. 6 § 17; Morton v. Jefferson Parish Council, 419 So.2d 431 (La.1982), and citations therein. A prima facie presumption of validity attaches to a zoning body's actions. The reviewing court cannot substitute its own judgment, absent a showing that the Board was arbitrary and capricious or abused its discretion. Papa v. City of Shreveport, 27,045 (La.App. 2 Cir. 9/29/95), 661 So.2d 1100, writ denied 95-2544 (La.1/5/96), 666 So.2d 295, and citations therein. The test of whether an action is arbitrary or capricious is whether the action is reasonable under the circumstances. Clark v. City of Shreveport, 26,638 (La.App. 2 Cir. 5/10/95), 655 So.2d 617, and citations therein. When applications are granted in similar situations and refused in others, the refusal to [30-822 La.App. 2 Cir. 5] grant one may constitute non-uniform application of zoning ordinances that is arbitrary and capricious. Id.

Judicial review of a zoning board action is de novo. Papa v. City of Shreveport, supra. Nevertheless, when the propriety of a zoning decision is debatable, it will be upheld. Palermo Land Co. v. Planning Comm'n of Calcasieu Parish, 561 So.2d 482 (La.1990); Papa v. City of Shreveport, supra.

Claims of unconstitutionality are regulated by La. C.C.P. art. 1880: "If the statute, ordinance or franchise is alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the proceeding and entitled to be heard." Without such prayer and service on the Attorney General, the issue is not properly raised. Brown v. Williams, 587 So.2d 732 (La.App. 2 Cir.1991), and citations therein.

Resubdivision of the lot involved in this case is regulated by Caddo Ord. § 51-242(b):

(1) In substantially developed neighborhoods which contain building sites in excess of the minimum standards for R-1D districts [7,200 square feet], resubdivision so as to create smaller building sites constitute[s] a change in the character of such neighborhoods.

(2) Where a subdivided lot of record exceeds the minimum building site area, resubdivision of that lot shall be permitted only when each proposed resubdivided lot is not less than the average of surrounding contiguous residential building sites, in the same subdivision filing, including the existing open spaces, yards, and off-street parking facilities in conjunction therewith. Contiguous sites shall include those directly across any residential service streets. Waiver of this restriction may be granted by the [MPC] through the subdivision process only upon a specific finding of good cause therefor, provided such relief may be granted only if there will...