New Cingular Wireless, PCS, LLC v. City-Parish of E. Baton Rouge

• Decision Date: 30 December 2021
• Docket Number: 2021 CA 0292
• Parties: NEW CINGULAR WIRELESS, PCS, LLC v. CITY-PARISH OF EAST BATON ROUGE
• Court: Court of Appeal of Louisiana — District of US

340 So.3d 1037

NEW CINGULAR WIRELESS, PCS, LLC

v.CITY-PARISH OF EAST BATON ROUGE

2021 CA 0292

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: DECEMBER 30, 2021

Gregory E. Bodin, Derbigny W. Daroca, Baton Rouge, Louisiana, Attorneys for Plaintiff/Appellant New Cingular Wireless, PCS, LLC d/b/a AT&T Mobility

Anderson O. "Andy" Dotson, III, Parish Attorney, David M. Lefeve, A. Gregory Rome, Sarah S. Monsour, Courtney Humphrey, Special Assistant Parish Attorneys, Baton Rouge, Louisiana, Attorneys for Defendant/Appellee City of Baton Rouge/Parish of East Baton Rouge

John Stone Campbell, III, Michael A. Grace, Baton Rouge, Louisiana, Attorneys for Intervenor/Appellee Mosely Holdings, LLC

BEFORE: WHIPPLE, C.J., PENZATO, AND HESTER, JJ.

PENZATO, J.

This appeal is taken from the district court's decision affirming the City of Baton Rouge/Parish of East Baton Rouge Board of Appeals’ decision declining to reverse a revocation notice of a permit for the installation of small cell wireless equipment. For the reasons that follow, we affirm the district court's judgment.

FACTS AND PROCEDURAL HISTORY

New Cingular Wireless, PCS, LLC d/b/a AT&T Mobility (AT&T) applied for a permit to install small cell wireless equipment, including a pole and antenna (cell tower), at approximately 55 locations in Baton Rouge, Louisiana. The City of Baton Rouge/Parish of East Baton Rouge (City/Parish) issued the permit on October 3, 2018 (permit), which included the location of 9551 Antioch Road (Antioch location) at the southeast corner of Antioch Road and Columns Way. In effect at this time was City/Parish Ordinance No. 16657, which adopted Title 2, Chapter 9 of the Code of Ordinances, entitled Small Wireless Facilities numbered Section 2:380-389 (Small Wireless Facilities Ordinance). AT&T installed the cell tower at the Antioch location in December 2019. Thereafter, in undated email correspondence from Michael P. Wich, a Building Official with the Department of Development of the City/Parish (Building Official), which AT&T received on March 23, 2020, the City/Parish revoked and terminated the permit issued at the Antioch location, stating that this area was publicly dedicated with certain stipulations that prevented the issuance of the permit (Revocation Notice). The Revocation Notice stated that all equipment and structures "shall be removed by May 20, 2020 ." (Emphasis in original).

On April 3, 2020, AT&T, alleging that the Building Official improperly revoked the permit, appealed to the Board of Appeals for the City/Parish (Board of Appeals), pursuant to the City/Parish Code of Ordinances, Title 8, Sections 8:1 and 8:2, which adopted the International Building Code (IBC) and International Residential Code (IRC) with certain amendments. Section 112.1 of the IRC and Section 113.1 of the IBC¹ permit the establishment of a Board of Appeals "to hear and decide appeals of orders, decisions[,] or determinations made by the building official relative to the application and interpretation of this code." Title 8, Chapter 1, Section 8.2 of the City/Parish Code of Ordinances amended Section 112 of the IRC and Section 113 of the IBC to establish certain membership, notices of violations, penalties, and other issues.

On May 28, 2020, the Board of Appeals met and declined to reverse the Revocation Notice. On June 26, 2020, AT&T filed a Petition for Judicial Review and Injunctive Relief (Petition) in the district court pursuant to La. R.S. 33:4780.47(A), which provides that any party aggrieved by any decision relative to any officer, department, board, or bureau of the parish may present a petition to the district court of the parish in which the property affected is located within thirty days after the filing of the decision in the office of the board. AT&T sought the reversal of the Revocation Notice and injunctive relief.

The City/Parish opposed the Petition asserting that the Antioch location was included in a larger donation of property evidenced in a Donation of Right of Way and Dedication of Servitudes (Donation) from Mosely Holdings, LLC (Mosely Holdings) on July 30, 2014.² The City/Parish claimed that after the permit application was submitted, it was informed that the cell tower violated the Planned Unit Development (PUD), which requires all utilities to be underground. The City/Parish maintained that it informed AT&T that the Antioch location was subject to certain stipulations and that the City/Parish had properly revoked the permit pursuant to IBC Section 105.6, which authorizes the City/Parish to revoke permits when the permit was issued in error or on the basis of incorrect, inaccurate, or incomplete information.

Mosely Holdings intervened in the present matter asserting that the cell tower is located on property donated by Mosely Holdings to the City/Parish for the construction of Antioch Road, which runs through the Long Farm Village development, a PUD. Mosely Holdings contended that the Donation limited the servitudes granted to the City /Parish for the sole purpose of completing the extension of Antioch Road and for personal servitudes on either side of Antioch Road to slope for drainage. Mosely Holdings also alleged that the PUD map corresponding to the Long Farm Village development expressly requires AT&T service to be "via underground conduits and wiring."

The parties entered into an agreement rendering the request for injunctive relief moot. Thereafter, the district court held a hearing on August 18, 2020, where all parties agreed to the introduction of all exhibits previously filed, including all affidavits in lieu of live testimony.³ Following the hearing, the district court requested that the parties file recommendations for findings of fact and conclusions of law and took the matter under advisement. On October 20, 2020, the district court rendered a judgment adopting the Proposed Findings of Facts and Conclusions of Law submitted by the City/Parish, denying the Petition, finding the permit was legally revoked and the City/Parish's revocation was neither arbitrary nor capricious, and dismissing the Petition. It is from this judgment that AT&T appeals.

ASSIGNMENTS OF ERROR

AT&T asserts that the Board of Appeals erred in affirming the revocation of a validly issued permit, claiming (1) that the dedication of the road conveyed ownership to the public; (2) that the Declaration of Covenants, Conditions, and Restrictions for Long Farm Subdivision (Long Farm Restrictions) only require utilities be put underground "whenever reasonably possible"; (3) that the Revocation Notice violated numerous laws; and (4) that the Revocation Notice violated AT&T's property rights. Furthermore, AT&T claims that the action of the Building Official was arbitrary and capricious.

APPLICABLE LAW

Standard of Review

On judicial review of a decision by an administrative agency, an aggrieved party may seek review of same by appeal to the appropriate appellate court. On review of the district court's judgment, no deference is owed by the court of appeal to factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal.

Our Lady of Lake Roman Catholic Church, Mandeville v. City of Mandeville, Planning & Zoning Commission, 2013-0837 (La. App. 1st Cir. 2/3/14), 147 So. 3d 186, 189. Thus, an appellate court sitting in review of an administrative agency reviews the findings and decision of the administrative agency and not the decision of the district court. Id.

The exclusive grounds upon which an administrative agency's decision may be reversed or modified on appeal are enumerated in La. R.S. 49:964(G), which provides:

The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or

(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency's determination of credibility issues.

A challenge to a zoning decision in Louisiana is a de novo proceeding on the issue of whether the result of the legislation is arbitrary and capricious. Truitt v. West Feliciana Parish Government, 2019-0808 (La. App. 1st Cir. 2/21/20), 299 So. 3d 100, 103. It is only when an action of a zoning commission is found on judicial review to be palpably unreasonable, arbitrary, an abuse of discretion, or an unreasonable exercise of police power that such action will be disturbed. City of Baton Rouge/Parish of East Baton Rouge v. Myers, 2013-2011 (La. 5/7/14), 145 So. 3d 320, 327-28 ; Our Lady of Lake Roman Catholic Church, Mandeville, 147 So. 3d at 191 ; see Dupuis v. City of New Orleans through Zoning Board of Zoning Adjustments, 2017-0052 (La. App. 4th Cir. 8/2/17), 224 So. 3d 1046, 1049 (quotation omitted) ("Our jurisprudence indicates that ‘the decisions of the [Board of Zoning Adjustments] ... are subject to judicial review only as to whether they are arbitrary, capricious or an abuse of discretion.").

The test of whether a zoning board's action is arbitrary and...