Hoover v. East Baton Rouge Parish Metro. Council.

• Decision Date: 25 March 2011
• Docket Number: No. 2010 CA 1531.,2010 CA 1531.
• Citation: 64 So.3d 244
• Parties: Bob WELCH & Daniel Hooverv.EAST BATON ROUGE PARISH METROPOLITAN COUNCIL.
• Court: Court of Appeal of Louisiana — District of US

64 So.3d 244

Bob WELCH & Daniel Hoover

v.EAST BATON ROUGE PARISH METROPOLITAN COUNCIL.

No. 2010 CA 1531.

Court of Appeal of Louisiana, First Circuit.

March 25, 2011.

Alexis A. St. Amant II, Robert L. Roland Baton Rouge, LA, for Plaintiffs–Appellants Bob Welch & Daniel Hoover.Lea Anne Batson, Baton Rouge, LA, for Defendant–Appellee East Baton Rouge Parish Metropolitan Council.Juston M. O'Brien, Brook L. Thibodeaux, Baton Rouge, LA, for Intervenor–Appellee 2590 Associates, LLC.Charles W. Belsom, Jr., Assistant Attorney General, Baton Rouge, LA Attorney for Defendant–Appellee State of La. Through Attorney General James D. Caldwell.Before KUHN, PETTIGREW, and HIGGINBOTHAM, JJ.PETTIGREW, J.

[1 Cir. 2] Plaintiffs appeal a partial summary judgment in favor of intervenor wherein the trial court dismissed, with prejudice, two of plaintiffs' three claims. Because we conclude that this summary judgment was improperly certified as a final appealable judgment, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

At the time of her death on October 24, 2003, Mary Bordelon Ford owned approximately 124 acres at the corner of Perkins Road and Glasgow Avenue in Baton Rouge, Louisiana. All of the land was zoned “A–1 Single Family residential.” In her will, she bequeathed to each plaintiff, Bob Welch and Daniel Hoover, a remunerative donation of a tract of land together with a house and further bequeathed to plaintiffs jointly a third tract of land with a barn situated on it. The total area of the three tracts of land owned by plaintiffs was slightly more than 5 acres, and the tracts were situated within the boundaries of the remaining 119 acres of Mrs. Ford's property. Because the tracts were so situated, Mrs. Ford also bequeathed to plaintiffs a private access servitude to Glasgow Avenue, which crossed a portion of the 119 acres and provided access to plaintiffs' property.

Mrs. Ford's succession sold the remaining 119 acres to a developer named 2590 Associates, LLC (“2590 Associates”), managed by Joseph T. Spinosa. With plans for a development named “Rouzan,” which would consist of a combination of commercial, single family residential, and multifamily residential units, the developer applied to the East Baton Rouge Parish Metropolitan Council (“Council”) to amend the Master Land Use and Development Plan to permit a use change from “Low Density Residential” to “Planned Unit Development” and to rezone from “A-l Single Family Residential” to a “Traditional Neighborhood Development” (“TND”).

Following a hearing on January 23, 2008, the Council adopted Municipal Ordinance 14280, which rezoned the property as a TND and changed the permitted use of the 119 acres to a “Planned Unit Development.” Thereafter, plaintiffs filed a petition for declaratory judgment against the Council, challenging the rezoning ordinance and alleging [1 Cir. 3] that the Council's actions were in violation of the Unified Development Code (“UDC”) and an abuse of discretion. 2590 Associates intervened as the property owner.

Plaintiffs base their challenge of the rezoning ordinance on three violations of the UDC, each of which they allege adversely affected their rights. The first violation of the UDC relates to Section 8.218C(3)(b) of the UDC, which requires that all residents shall be within approximately 1/4 mile distance from existing or proposed commercial, civic, and open space areas. Plaintiffs alleged that the conceptual plan for Rouzan provides for all of the commercial development to be on the edge of the TND on Perkins Road rather than mixed throughout the development and that the distance between many of the residences and the commercial, civic, and open spaces is well in excess of 1/4 mile.

The second violation pertains to Section 8.218H, the UDC requirement that prior to the approval of the conceptual plan, 2590 Associates was required to request and attend a pre-application conference and provide a statement indicating it has financial responsibility sufficient to complete the Public Improvements shown on the conceptual plan. Plaintiffs contend that no such financial statement was provided by 2590 Associates at a pre-application conference.

The third and final violation concerns Section 8.218F of the UDC relating to the control of the land within the TND. Plaintiffs note that they own and reside on property completely surrounded by, and included within the boundaries of, Rouzan and that they have the benefit of one or more servitudes of passage over a portion of the Rouzan development that provides access to their property to and from Glasgow Avenue. Thus plaintiffs maintain that 2590 Associates cannot meet the UDC requirement that it have complete, unified, and legal control of all land included in the TND.

In September 2008, plaintiffs filed a motion for summary judgment on the first two violations, which was denied by the trial court in a judgment signed on December 10, 2008. An application to this court by plaintiffs for supervisory writs was subsequently denied.

On January 21, 2010, plaintiffs filed a supplemental petition for declaratory judgment. According to this supplemental petition, after adopting Ordinance 14280 the [1 Cir. 4] Council filed several amendments to the UDC. Plaintiffs allege that these amendments are “unconstitutional as they violate the substantive due process clauses of the Louisiana and United States Constitutions in their application to this lawsuit to the extent they seek to divest plaintiffs of their rights acquired prior to the amendments.”

Thereafter, on February 2, 2010, 2590 Associates filed a motion for partial summary judgment on the first two violations, arguing that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. The matter was scheduled for hearing, but before the hearing on its motion, 2590 Associates filed an exception to plaintiffs' supplemental petition raising the objection of no cause of action. 2590 Associates alleged that plaintiffs failed to plead, with sufficient specificity, a valid constitutional claim and cannot identify a constitutionally protected liberty or property interest sufficient to support a substantive due process claim.

2590 Associates' motion for partial summary judgment proceeded to hearing on March 29, 2010. The minute entry from the hearing provides, in pertinent part, as follows: “This matter came on for hearing on a Motion for Summary Judgment filed on behalf of interveners, the 2590 Associates.¹ ... The matter was argued by counsel, documentary evidence was introduced and the matter was submitted to the Court.” After considering the evidence, the court granted the motion, designating same as a final judgment. The trial court signed a judgment on April 15, 2010, decreeing as follows:

Plaintiffs' claims that the actions of the ... Council in adopting Ordinance 14280 approving the [TND] violated the [UDC] because (a) each residence was not within 1/4 mile of each and every commercial, civic, and open space, and (b) a statement of financial responsibility was not submitted at the pre-application conference are DISMISSED WITH PREJUDICE.

It is further ORDERED, ADJUDGED AND DECREED that there is no just reason for delaying any appeal of this matter because the legal interpretation of the [UDC] is determinative of the rights of the parties to this matter. Therefore, this Court's Judgment granting 2590 Associates and [1 Cir. 5] the ... Council's summary judgment is now designated a Final Judgment pursuant to La. [Code Civ. P.] art. 1915(B).

Plaintiffs subsequently requested that the trial court provide written findings of fact and reasons for judgment, but none were provided. Plaintiffs appealed, challenging the trial court's denial of their motion for partial summary judgment ² and the April 15, 2010 judgment granting the motion for partial summary judgment in favor of 2590 Associates and the Council.

DISCUSSION

Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Motorola, Inc. v. Associated Indem. Corp., 2002–0716, p. 4 (La.App. 1 Cir. 4/30/03), 867 So.2d 715, 717. A partial summary judgment rendered pursuant to La.Code Civ. P. art. 966(E) may be immediately appealed during an ongoing litigation only if it has been properly designated as a final judgment by the trial court. La.Code Civ. P. art. 1915(B). Although the trial court designated the April 15, 2010 partial summary judgment to be a final one under Article 1915(B), that designation is not determinative of this court's jurisdiction. Van ex rel. White v. Davis, 2000–0206, p. 2 (La.App. 1 Cir. 2/16/01), 808 So.2d 478, 480. We must ascertain whether this court has appellate jurisdiction to review the partial judgment appealed from. Because the trial court gave reasons...