Thomas v. Janzen

• Decision Date: 31 October 2001
• Docket Number: No. 35,288-CA.,35,288-CA.
• Citation: 800 So.2d 81
• Parties: Dale THOMAS, et al., Plaintiffs, v. Carl F. JANZEN, In his Capacity as Mayor of the Town of Benton, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

800 So.2d 81

Dale THOMAS, et al., Plaintiffs, v. Carl F. JANZEN, In his Capacity as Mayor of the Town of Benton, Defendant-Appellee.

No. 35,288-CA.

Court of Appeal of Louisiana, Second Circuit.

October 31, 2001.

COPYRIGHT MATERIAL OMITTED

Jones, Odom, Davis & Politz, L.L.P., by James W. Davis, Counsel for Appellants, Ardis T. Alan, Thomas B. Montgomery, Jr., Thelma Ruth H. Montgomery and Benton Travel Plaza, L.L.C.

Whitley R. Graves, Counsel for Appellee, Carl F. Janzen in his Capacity as Mayor of the Town of Benton.

English & Lester, by Larry English, Counsel for Appellee, Dale Thomas, et al.

Before WILLIAMS, CARAWAY & PEATROSS, JJ.

PEATROSS, Judge.

This appeal arises out of a dispute over the abandonment of a part of Third Street and proposed zoning changes of certain property in Benton, Louisiana ("subject property"). Two ordinances were enacted by the Benton Board of Aldermen: (1) Ordinance No. 345 of 2000, which changed the zoning of the subject property; and (2) Ordinance No. 342 of 2000, which abandoned a portion of Third Street. The validity of these ordinances constitutes the majority of this appeal; the trial court found both ordinances to be void due to procedural defects in their enactments. For the reasons stated herein, we affirm.

FACTS and PROCEDURAL BACKGROUND

There are many procedural facets in the history of the present litigation, including proceedings before the Benton Metropolitan Planning Commission ("MPC") and Board of Aldermen and a prior civil suit. Before outlining the procedural background, we will provide a brief synopsis of the factual setting of this case, the parties involved and the circumstances giving rise to the zoning dispute. The subject property is the site on which the Benton Travel Plaza is situated, which is a truck stop and convenience store. Plaintiffs/Appellees are landowners and citizens of Benton, including at least one member of the MPC, who oppose the changes and filed suit against the Town of Benton and its Mayor at the time, Carl Janzen, seeking, inter edict, to have the ordinances declared void. Appellants Ardis T. Allan, Thomas B. Montgomery, Jr. and Thelma Ruth H. Montgomery ("Owners") are the owners of the subject property and the property adjacent to the portion of Third Street sought to be abandoned; and Appellant Benton Travel Plaza operates the truck stop and is the holder of a lease on the subject property. The Owners and Benton Travel Plaza intervened in the present suit, aligning themselves with the Town of Benton and the Mayor in support of the ordinances. In short, the abandonment of a portion of Third Street allows the subject property to be one contiguous plot, rather than being dissected by the roadway. The zoning change would allow for an expanded travel plaza, including service bays for trucks, a gas station, a convenience store, gaming and parking. Against that factual backdrop, we will next review the procedural history of this dispute before reaching this court on appeal.

On March 6, 2000, Benton Travel Plaza applied to the MPC to change the zoning classification of the subject property from B-2 (Neighborhood Business) to B-3 (Community Business District). On April 3, 2000, after a lengthy hearing with many residents of Benton present, the MPC unanimously denied the proposed amendment to the zoning ordinance.¹ On May 8, 2000, the Mayor and Board of Aldermen considered the proposed amendment, codified as Ordinance 345 of 2000. After hearing from both proponents and opponents of Ordinance 345, the Board of Aldermen voted 3-2 in favor of the proposed amendment, i.e., in favor of changing the zoning of the subject property from B-2 to B-3, thereby enacting Ordinance No. 345.

During this same time frame, the second ordinance at issue in this appeal was enacted. On March 13, 2000, the Mayor and Board of Aldermen introduced and set for public hearing Ordinance No. 342 of 2000, which proposed the abandonment of "the west 130 feet of Third Street lying north of Block 24 and south of block 17 in the Town of Benton . ." On April 10, 2000, the Mayor and Board of Aldermen passed (by 3-2 vote) Ordinance No. 342. This ordinance originated with the Board of Aldermen; it was not first considered by the MPC.

Apparently, construction consistent with the zoning change and abandonment was commencing which prompted Plaintiffs' filing, on November 6, 2000, of a Petition For Writ of Mandamus, or, Alternatively, Declaratory Relief naming the Mayor and the Town of Benton as defendants ("Defendants"). The petition sought court orders directed to the Mayor ordering him to uphold the B-2 zoning classification of the subject property and to submit the "vacating" of Third Street to the MPC. Plaintiffs argued that both ordinances were illegal: (1) Ordinance 345 was illegal because it was not adopted in accordance with Act 558 of 1956 ("Act 558")(quoted infra) and (2) Ordinance 342 was illegal because it was not first considered by the MPC. Alternatively, Plaintiffs sought a declaratory judgment that both ordinances were not lawfully enacted and were, therefore, null, void and without effect. The matter was ultimately set for trial on January 2, 2001. On December 29, 2000, Defendants filed dilatory and peremptory exceptions of res judicata, prescription, improper use of summary proceeding, no cause/right of action and failure to join an indispensable party. On January 29, 2001, the Owners and Benton Travel Plaza filed a Petition for Intervention. The allegations in these pleadings (the exceptions filed by Plaintiffs and the Petition for Intervention) reveal an additional proceeding which had been filed, also in the 26th Judicial District Court, which dealt with the validity of Ordinance No. 345.

After the meeting of the Board of Aldermen wherein it declined to follow the MPC's recommendation to deny the proposed zoning change from B-2 to B-3, and approved the change, the MPC, in its official capacity, filed a petition for writ of mandamus against the Mayor and Town of Benton seeking an order directing the Mayor to uphold the status of the B-2 zoning of the subject property. That suit was styled The Benton-Parish Metropolitan Planning Commission v. Carl F. Janzen, In His capacity as Mayor of the Town of Benton, Louisiana and the Town of Benton, Suit No. 103,995 ("Suit No. 103,995"). The MPC asserted that Ordinance No. 345 was not validly enacted because it was not passed with the required two-thirds vote in accordance with Act 558 of 1956. Article 4, Section 3 of Act 558 reads, in pertinent part, as follows:

The Village Council and the Police Jury may make from time to time, other additions to or modifications of the official map by placing thereon the lines of planned new streets or street extensions, widenings, narrowings, or vacating... and provided further that such proposed addition to or modification of the official map shall be submitted to the planning commission for its approval, and, in the event of such commission's disapproval, such addition or modification shall require the favorable vote of not less than two-thirds of the entire membership of the Village Council or Police Jury.

The Mayor and Town of Benton responded to the MPC's petition in Suit No. 103,995 and Benton Travel Plaza intervened, alleging that the Board of Aldermen's failure to override the recommendation of the MPC to deny the zoning change by a two-thirds vote was arbitrary and capricious.² The MPC was dismissed by the trial court for lack of standing because it filed suit in its official capacity rather than as the members of the MPC in their individual capacities. Benton Travel Plaza then filed a motion for judgment on the pleadings (its Petition for Intervention); and, on October 16, 2000, District Judge Bruce Bolin entered judgment in the matter, ordering a change in the zoning classification of the subject property from B 2 to B 3 ("Bolin Judgment"). No appeal was taken from the Bolin Judgment. Based on the Bolin Judgment, the Owners and Benton Travel Plaza adopted the exceptions of Defendants in the present action and also pled prescription with regard to Plaintiffs' claim that Ordinance No. 342 is void.

After hearing evidence in the case sub judice, District Judge John Robinson entered judgment, on February 6, 2001, denying all of Defendants', Owners' and Benton Travel Plaza's exceptions and declared both ordinances void. A Declaratory Judgment was rendered, making moot the prayer for mandamus relief. In oral reasons, Judge Robinson recognized that Act 558 gave the Town of Benton and the police jury the opportunity to create the MPC, which they did. Judge Robinson relied on Article 4, Section 3 of Act 558, which states that the "village council and the police jury" may make changes, including the "vacating of" streets. Such action requires the MPC's approval which can only be disregarded if there is a two-thirds vote of the Board of Aldermen. Judge Robinson found that this case involved the "vacating" of Third Street; and, since the issue had not been submitted to the MPC, Ordinance No. 342 was declared void. Likewise, Judge Robinson found Ordinance No. 345 to be void because it was not passed by a two-thirds vote of the Board of Aldermen, which is the required vote under Act 558 to override the recommendation of the MPC to deny the proposed zoning change.

As previously stated, the Owners and Benton Travel Plaza are Petitioners in Intervention in the present suit. They appeal, asserting the following three assignments of error: (1) the trial court erred when it declared Town of Benton Ordinance No. 342 of 2000 void; (2) the trial court erred when it declared Town of Benton Ordinance No. 345 of 2000 void; and (3) the trial court erred in denying Appellants' peremptory exceptions of res judicata and no cause of action and/or no right of action.

DISCUSSION

As a threshold matter, we note that the former Mayor, Carl Janzen, re-urges in his brief to this court the issue...