Belle Company, LLC v. Deq

• Decision Date: 12 June 2009
• Docket Number: No. 2008 CA 2382.,2008 CA 2382.
• Citation: 25 So.3d 847
• Parties: BELLE COMPANY, LLC v. STATE of Louisiana, through the DEPARTMENT OF ENVIRONMENTAL QUALITY, Assumption Parish, Mike McDaniel and Chuck Carr Brown.
• Court: Court of Appeal of Louisiana — District of US

25 So.3d 847

BELLE COMPANY, LLC v. STATE of Louisiana, through the DEPARTMENT OF ENVIRONMENTAL QUALITY, Assumption Parish, Mike McDaniel and Chuck Carr Brown.

No. 2008 CA 2382.

Court of Appeal of Louisiana, First Circuit.

June 12, 2009.

Writ Denied October 9, 2009.

Ross A. Brupbacher, Robert R. Broussard, Lafayette, LA, for Plaintiff/Appellant, Belle Company, LLC.

James P. Doré, Alan J. Berteau, Baton Rouge, LA, for Defendant/Appellee, Assumption Parish Police Jury.

Stephen J. Oats, Patrick B. McIntire, Gordon Square, Lafayette, LA, Elliott Vega, Roger K. Ward Baton, Rouge, LA, for Defendants/Appellees, State of Louisiana, through the Department of Environmental Quality, Mike McDaniel, and Chuck Carr Brown.

Before CARTER, C.J., WHIPPLE and DOWNING, JJ.

WHIPPLE, J.

This matter involves a suit by Belle Company, LLC, (Belle) against the Louisiana Department of Environmental Quality (DEQ), seeking declaratory judgment and damages for inverse condemnation pursuant to LSA-Const. art. I, sec. IV, based on the DEQ's alleged wrongful refusal to grant Belle's solid waste permit application through which Belle sought to operate a solid waste landfill on its property in Assumption Parish. The DEQ filed exceptions of lis pendens, lack of subject matter jurisdiction, no cause of action, and prescription. From the trial court's judgment granting the exception of lis pendens with regard to the actions for declaratory judgment, granting the exception of no cause of action with regard to the action for damages, and alternatively granting the exception of prescription with regard to the action for damages, Belle appeals. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In October 1994, Belle filed an application with the DEQ for a permit to construct and operate a Type I and Type II non-hazardous solid waste landfill in Assumption Parish.¹ On August 15, 1997, the DEQ granted Belle's permit application. Assumption Parish People's Environmental Action League (APPEAL) filed a petition for review with the district court, naming the DEQ as a defendant and raising various assignments of error. The district court concluded that the DEQ had satisfied its duties as the public trustee in issuing Belle's permit, but determined that the DEQ had erred in granting a permit to Belle without ensuring prior compliance with LSA-R.S. 30:2157.² Accordingly, by judgment dated September 14, 1998, the district court reversed the DEQ's decision to issue the permit and remanded the matter to the DEQ for further proceedings on the issue of compliance with LSA-R.S. 30:2157.

On appeal to this court by APPEAL, this court concluded that the DEQ's decision was supported by its factual findings and its articulation of a rational connection between the facts found and the permit issued. Thus, this court concluded that the DEQ had performed its duty as protector of the environment, and APPEAL'S assignments of error were found to lack merit. In re Belle Company, 2000-0504 (La.App. 1st Cir.6/27/01), 809 So.2d 225, 239 & 242. However, Belle filed an answer to the appeal, challenging the district court's finding regarding failure to comply with LSA-R.S. 30:2157. In response to the answer to the appeal, this court found no error in the district court's reversal of the DEQ's decision to grant the permit, for failure to require compliance with LSA-R.S. 30:2157 prior to issuance of the permit, and remanded this matter for further proceedings on the issue of compliance with the emergency response statute, LSA-R.S. 30:2157. In re Belle Company, 809 So.2d at 245.

After the matter was remanded to the DEQ, Belle submitted an update to the revised emergency response plan that had been submitted to the DEQ during the pendency of the appeal, and public hearings were conducted on the revised contingency plan for hazardous materials emergencies. However, the DEQ also requested that Belle update and supplement some of the data contained in its application that was unrelated to the emergency response issue.

On June 29, 2005, a notice of deficiency was issued, which contained a request that Belle provide a wetlands determination pursuant to LAC 33:VII.521(A)(l)(e)(ii), a wetlands demonstration pursuant to LAC 33:VII.521(A)(1)(f), if applicable, and documentation that the proposed landfill did not violate existing land-use requirements pursuant to LAC 33:VII.519(N), the applicable Louisiana Administrative Code provisions at that time. Thereafter, by letter dated September 20, 2005, the DEQ informed Belle that the Water and Waste Permits Division had discontinued review of its permit application pending receipt by the DEQ of the wetlands determination, the wetlands demonstration, if applicable, and proper documentation from the local governing body that the proposed use did not violate existing land-use requirements.

In response, Belle filed a petition for writ of mandamus on September 22, 2005, contending that, in making additional requests not related to the emergency response issue, the DEQ had acted beyond the scope of the remand and had reopened the entire permit process. Belle contended that since it had fulfilled its emergency response requirements under LSA-R.S. 30:2157, it was entitled to a writ of mandamus, directing the DEQ's secretary and assistant secretary to immediately grant Belle's request for a solid waste disposal permit or show cause to the contrary.

While the district court concluded that a writ of mandamus was inappropriate because of the discretion afforded the DEQ, this court, on appeal, concluded that because the secretary of the DEQ had failed to render a final decision within the deadline set forth in LSA-R.S. 30:2022(B), Belle was entitled to the issuance of a writ of mandamus, pursuant to LSA-R.S. 30:2050.29, directing the secretary or authorized assistant secretary to act within a specified period of time. In re Belle Company, LLC, 2006-1077 (La.App. 1st Cir.12/28/07), 978 So.2d 977, 985, writs denied, 2008-0220, 2008-0229 (La.3/24/08), 977 So.2d 957, 958. Moreover, this court further noted that the prior order of remand by the district court to the DEQ did not authorize reconsideration of Belle's entire permit application, but, rather, was limited to the issue of Belle's compliance with the emergency response statute. In re Belle Company, LLC, 978 So.2d at 985-986. Thus, this court reversed the district court's denial of Belle's petition for writ of mandamus and remanded the matter to the district court with instructions to issue the writ of mandamus, directing the DEQ to render a final decision on Belle's application within 30 days of the finality of the court's opinion. In re Belle Company, LLC, 978 So.2d at 986.

Meanwhile, on September 7, 2007, Belle filed the instant suit against the DEQ for declaratory relief and damages in regard to the DEQ's alleged wrongful refusal to issue the Type I and Type II sanitary landfill permit to Belle.³ In its original and amended petitions, Belle sought judgment declaring, in pertinent part, that:

(1) The judgments rendered by the district court and this court in In re Belle Company, LLC, 2000-0504 (La.App. 1st Cir.6/27/01), 809 So.2d 225, are law of the case between the parties;

(2) Belle has complied with LSA-R.S. 30:2157 by its emergency response submittals to the DEQ;

(3) the DEQ and its secretary are bound by the constraints of LSA-R.S. 30:2022 and LAC 33:I.1505 and have no discretion with regard to the application of same;

(4) Belle's compliance with the mandates of the district court and the appellate court entitles it ipso facto, without any additional consideration, to a Type I and Type II sanitary landfill permit, effective May 27, 2002;

(5) the DEQ, by its inaction with regard to the mandatory time constraints set forth in LSA-R.S. 30:2022 and the applicable Louisiana Administrative Code provisions, illegally expanded the scope of its review of Belle's permit application;

(6) the DEQ illegally expanded the scope of its review of Belle's permit application by adding additional conditions as referenced in the DEQ's September 20, 2005 letter;

(7) the wetlands determination requirement set forth in the DEQ's September 20, 2005 letter is inapplicable to Belle's permit application;

(8) the wetlands demonstration requirement set forth in the DEQ's September 20, 2005 letter is inapplicable to Belle's permit application; and

(9) the requirement of providing documentation that the proposed use does not violate existing land use requirements is inapplicable to Belle's permit application.

In addition to its request for declaratory judgment, Belle also contended that the DEQ's actions in failing to issue Belle's permit by May 27, 2002, illegally expanding the scope of its review of the permit application upon remand, and adding additional requirements or conditions to Belle's permit application upon remand violated Belle's constitutional right to control, use, and enjoy its land, as guaranteed by LSA-Const. art. I, sec. IV. Thus, Belle contended that the DEQ's actions were tantamount to an inverse condemnation of Belle's property, without due process or just compensation. Accordingly, Belle sought judgment against the DEQ, awarding Belle damages for inverse condemnation.

The DEQ responded to the petitions by filing exceptions raising the objections of lis pendens, lack of subject matter jurisdiction, no cause of action, and prescription. With regard to the exception of lis pendens, the DEQ averred that the gist of Belle's lawsuit herein was that the DEQ had damaged Belle by not issuing to Belle the requested landfill permit. The DEQ contended that the allegations and claims in the instant suit were virtually identical to the allegations set forth in the mandamus proceedings, which, at that time, were pending on appeal.⁴ Thus, the DEQ sought dismissal without prejudice of the instant suit.

With regard to the exception of lack of subject matter jurisdiction, the DEQ...