The Cuny Family, LLC Versus The Parish of Jefferson ( 2019 )

THE CUNY FAMILY, LLC NO. 19-CA-269
VERSUS FIFTH CIRCUIT
THE PARISH OF JEFFERSON COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 774-896, DIVISION "C"
HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING
December 26, 2019
STEPHEN J. WINDHORST
JUDGE
Panel composed of Judges Stephen J. Windhorst,
Hans J. Liljeberg, and John J. Molaison, Jr.
AFFIRMED
SJW
HJL
JJM
COUNSEL FOR PLAINTIFF/APPELLANT,
THE CUNY FAMILY, LLC
Robert G. Harvey, Sr.
Donald C. Douglas, Jr.
COUNSEL FOR DEFENDANT/APPELLEE,
THE PARISH OF JEFFERSON
Loren C. Marino
WINDHORST, J.
Appellant, The Cuny Family, LLC, appeals the January 23, 2019 judgment in
favor of The Parish of Jefferson, affirming the Jefferson Parish Council’s (“the
Council”) decision to deny appellant’s application to rezone property.1 For the
reasons stated herein, we affirm.
FACTS AND PROCEDURAL HISTORY
This appeal concerns the Council’s denial of appellant’s request for rezoning
of its property located at 808 Bonnabel Boulevard (“Bonnabel property”) in
Metairie, Louisiana, from R2 family residential to C1 neighborhood
commercial/ZPZ. Appellant owns the property located at 1805 Veterans Memorial
Boulevard where a Taco Bell is currently located. The Taco Bell is hindered with
limited parking and is in need of additional space for this and other purposes.
Appellant acquired the adjacent Bonnabel property, and filed an application to
rezone the Bonnabel property from R2 to C1, seeking to provide additional parking
and queuing for the Taco Bell. Upon consideration of appellant’s application for
rezoning, the Jefferson Parish Planning Department (“the Planning Department”)
recommended approval of the application.
On May 25, 2017, the Planning Advisory Board (“the PAB”) conducted a
public hearing. At the hearing, one person spoke in favor of and eight people spoke
in opposition to the application for rezoning. The PAB voted to defer the matter
until the next public hearing. At the hearing on June 29, 2017, one person spoke in
favor of and nine people spoke in opposition to the application.
Brian Cuny testified on behalf of appellant, and argued that the application
should be granted for the following reasons: (1) appellant has assured the next door
1 On October 4, 2019, this Court found that the January 23, 2019 judgment was not a final judgment and
ordered the trial court to amend the January 23, 2019 judgment to include the appropriate and necessary
decretal language. On October 8, 2019, the trial court amended the judgment.
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neighbor that the lighting, noise, and beautification of the area would be to his
satisfaction; (2) traffic flow will be improved for the neighborhood; (3) elimination
of employee parking in the neighborhood; (4) improve safety by eliminating drive-
through backup on Veterans Memorial Boulevard and Bonnabel Boulevard; (5)
changing zoning will protect the neighborhood from future unwanted commercial
business, such as bars; (6) if rezoning is granted, appellant will grant an easement to
the Parish; (7) increase in sales and property tax to the Parish; (8) if rezoning is
granted, the addition of the Bonnabel property to the Taco Bell will make the depth
of the property from Veterans the same as that of Walgreens, which is across
Bonnabel Boulevard; (9) the Planning Department recommended approval; and (10)
neighbors, family, and friends requested appellant to make these improvements to
the property. Mr. Cuny stated that the rezoning would allow for 12-14 additional
parking spaces and 10-12 more spaces in drive-through queue.
Several neighbors, including the president of the Bonnabel Civic Association
(“the Association”), opposed the application for rezoning for the following stated
reasons: (1) a petition was obtained with over 100 signatures from the neighborhood
opposing the application; (2) the neighborhood has consistently opposed commercial
encroachment, and the Council has denied similar requests for rezoning; (3) granting
the rezoning will encourage other businesses to reapply for rezoning requests which
were previously denied by the PAB or Council; (4) granting the application would
affect the quality of life of the neighborhood due to increased noise, traffic, and litter;
(5) late hours of the Taco Bell; (6) 3:00 A.M. garbage pickup at Taco Bell; (7)
opposition to commercial encroachment in their “backyard;” (8) unwanted removal
of two old trees on the property; and (9) neighbors want to maintain the quiet, family
residential nature of the area.
In rebuttal, Bonnabel Boulevard resident and counsel for appellant, Robert
Harvey, spoke on behalf of appellant, arguing that the neighbors who signed the
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petition circulated by the opponents were not truthfully told the facts regarding the
rezoning. He testified that granting the application would increase revenue for the
Parish and beautify the area. Mr. Cuny showed a video of the U-turn directly in
front of the property and its dangers. He testified that allowing the rezoning for
additional parking and queuing would remove vehicles from the street. He further
argued that no resident should have the U-turn in front of their house. Following the
hearing, a motion was made to deny the application for rezoning. The PAB
recommended denial of appellant’s application for rezoning.
The matter was heard before the Council on July 12, 2017. Raymond Landry,
Mr. Cuny, and Mr. Harvey spoke on behalf of appellant arguing the same reasons in
favor of rezoning that were previously addressed at the PAB hearing. Mr. Cuny
presented photographs and a video to the Council. Three neighbors, including the
president of the Association, spoke in opposition to appellant’s application for
rezoning, arguing the same reasons as previously provided at the PAB hearing. After
hearing proponents in favor of and against the rezoning, Councilwoman Jennifer
Van Vrancken acknowledged that both sides made valid, compelling points. She
further stated that she was aware that the U-turn was a problem in that area and the
Parish was looking into the situation. Thereafter, however, Councilwoman Van
Vrancken moved for denial of the application and the Council denied appellant’s
application for rezoning.
Appellant appealed the Council’s denial of its application for rezoning to the
Twenty-fourth Judicial District Court. After a hearing on November 30, 2017, the
trial court remanded the matter to give appellant an opportunity to educate the
Association, to which it previously was not able to present its case, and to admit
further evidence before the Council, if necessary.
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On May 24, 2018, appellant again appeared before the PAB again seeking
approval of its application for rezoning. One party spoke in favor of, and nine
individuals spoke against rezoning.
Mr. Harvey, on behalf of appellant, stated that he retained experts to conduct
studies on noise, traffic and real estate in attempt to alleviate the concerns expressed
by the opponents. He stated that all of the experts approved the rezoning. When
questioned as to where the reports were, Mr. Harvey stated that due to the hurricane,
he was not able to get the reports from his experts and requested that he be entitled
to submit the reports at a later date. He stated the same reasons previously stated to
the PAB and the Council as to why the application should be granted.
The nine neighbors who spoke against appellant’s application for rezoning
made the same arguments previously made before the PAB and the Council. The
president of the Association was not able to attend and submitted a letter in
opposition stating that the Association opposed “any” rezoning in the area. The
opponents emphasized that they did not want commercial encroachment in their
quiet family residential neighborhood and that the rezoning would increase noise,
traffic, and litter. They pointed out that the trial court remanded the matter over five
months ago and the appellant has still not produced any alleged expert reports. It
was argued that granting the rezoning would only increase problems, including noise
and traffic because the Taco Bell is open Monday, Tuesday, Wednesday, and Sunday
from 7:00 A.M. to 4:00 A.M. and on Thursday, Friday, and Saturday from 7:00 A.M.
to 5:00 A.M., essentially open 24 hours. Several individuals mentioned that the
additional parking and queuing will not help with the traffic congestion in that area
or change the U-turn situation in front of the property. At the conclusion of the
hearing, the PAB again recommended denial of the application for rezoning.
On August 29, 2018, the matter was again heard before the Council. Mr.
Harvey spoke on behalf of appellant in favor of rezoning. Mr. Harvey made the
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same arguments previously made before the PAB and the Council, and submitted
expert reports regarding noise, traffic, and real estate that were in favor of rezoning.
He argued that the Planning Department’s approval of the rezoning is presumptively
valid and thus, the application should be approved by the Council. He spoke about
the dangerous U-turn in front of the property and how there is a no parking sign in
front of the property. Mr. Harvey asserted that by placing the no parking sign in
front of the property, the Parish de facto made the property commercial instead of
residential. He further asserted that even the trial court did not understand why the
rezoning was not approved by the PAB.
Three individuals spoke in opposition to the application for rezoning,
including the president of the Association. The neighbors reasserted vehemently
that rezoning would affect their quality of life, it would increase the noise, traffic,
and litter. They asserted that the neighborhood did not want further commercial
encroachment into their residential area. The president of the Association stated that
appellant was given an opportunity to present its case to the Association at a meeting,
but failed to do so, and did not provide the data and reports referred to by appellant
in support of the rezoning.
At the conclusion of the hearing, Councilwoman Van Vrancken again spoke.
She stated that she disagreed with Mr. Harvey’s assessment of the trial court’s ruling
and that it was her appreciation that the matter was originally remanded to allow
appellant an opportunity to further educate the Association and to present evidence
to the Council as to why the application should be granted. She asserted that the
Planning Department makes a “technical” recommendation to the PAB based on the
rules and issues. The PAB and the Council are not required to accept the
recommendation from the Planning Department; rather, each considers the
recommendation and other non-technical factors. Councilwoman Van Vrancken
pointed out that in this case, after hearing arguments in favor of and against the
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application, the PAB recommended denying the application after two different
hearings. Councilwoman Van Vrancken also referred to appellant’s expert reports.
She specifically mentioned the report on noise levels that Mr. Harvey asserted was
favorable to rezoning. She pointed out that while the report showed that the noise
level was under the required noise level in the ordinance so as to not be offensive,
the report actually showed that the noise level was less than one decibel below what
is considered offensive and in violation of the Parish ordinance. Councilwoman Van
Vrancken also discussed how this particular Taco Bell was one of the highest
grossing Taco Bell’s in the country, emphasized that the speaker to take orders going
off during late hours does affect the quality of life of the neighbors, and discussed
the increased traffic if the rezoning is granted. She acknowledged that the Parish
was aware of the problem with the U-turn in that location and the Parish was
currently working on a plan to redesign that area. She further asserted that a “no
parking” sign in front of the property did not mean anything, as there are many other
“no parking” signs in front of residential properties. Councilwoman Van Vrancken
felt that the opponents did show evidence that the rezoning would affect the safety,
health and welfare of the Parish. She read one of numerous emails she received in
opposition to the rezoning which stated that she lived in the area for over 20 years
and liked the clean, quiet neighborhood and feared that the rezoning would increase
the trash and noise levels significantly. Councilwoman Van Vrancken stated that
for those reasons she was moving to deny the application. The Council again denied
the application for rezoning.
Appellant again appealed the Council’s decision to the trial court. On January
23, 2018, after evidence and argument of counsel, the trial court denied appellant’s
petition. The trial court affirmed the Council’s decision, finding that the Council’s
decision was not arbitrary and capricious and was rationally related to the general
welfare of the public. This appeal followed.
19-CA-269 6
STANDARD OF REVIEW2
The authority to enact zoning regulations flows from the police power of each
governmental body. Shaw v. Jefferson Parish, 15-453 (La. App. 5 Cir. 02/24/16),
186 So.3d 1181, 1185. A prima facie presumption of validity attaches to zoning
board actions. TTC Properties, Inc. v. Parish of Jefferson, 17-363 (La. App. 5 Cir.
12/27/17), 237 So.3d 623, 625; Parish of Jefferson v. Davis, 97-1200, 97-1201 (La.
App. 5 Cir. 06/30/98), 716 So.2d 428, 433, writ denied, 98-2634 (La. 12/11/98), 730
So.2d 460. A reviewing court cannot substitute its own judgment or interfere with
the zoning board’s decision absent a showing that the board was arbitrary and
capricious or abused its discretion. Davis, 716 So.2d at 433. The person who
opposes a zoning board’s decision bears the burden of proving that the decision was
arbitrary, capricious, an abuse of discretion, or palpably unreasonable. Id.; In re:
Pierre, 04-635 (La. App. 5 Cir. 12/14/04), 892 So.2d 91, 92; Ostarly v Zoning
Appeals Board, Parish of Jefferson, 02-55 (La. App. 5 Cir. 10/29/02), 830 So.2d
542, 545, writ denied, 02-3112 (La. 02/21/03), 837 So2 632. A challenge to a zoning
decision is a de novo proceeding in which the issue is whether the result of the
legislation is arbitrary and capricious, and therefore a taking of property without due
2 In its first assignment of error, appellant contends that the Council voluntarily adopted a heightened
standard of review of its actions regarding zoning decisions and thus, the trial court erred in not applying
that heightened standard, but instead reviewed the decision through the lesser “arbitrary and capricious”
standard of review. In support of its position, appellant cites K.G.T. Holdings LLC v. Parish of Jefferson,
14-872 (La. App. 5 Cir. 03/25/15), 169 So.3d 628 for the proposition that land use by right “is subject to
strict scrutiny not the normal standard of broad discretion applied to variance cases.” Appellant’s argument
is without merit and we find that the trial court applied the correct law to this rezoning case.
In K.G.T. Holdings, this Court stated:
Land use is subject to the police power of various governing bodies, and the courts will not interfere with
the decisions of these bodies unless it is clear that their action is without any relation to the public health,
safety, or general welfare. Willow, Inc. v. Jefferson Parish Council, 05–754 (La. App. 5 Cir. 04/25/06), 928
So.2d 756, 759, writ denied, 06–1596 (La. 09/29/06); 937 So.2d 869. In reviewing a land use decision, the
issue is whether the governing body's decision is arbitrary and capricious. Id. at 760, citing Palermo Land
Co., Inc. v. Planning Commission of Calcasieu Parish, 561 So.2d 482, 492 (La. 1990). The plaintiff bears
the burden of proving that the governing authority acted arbitrarily. Willow, 928 So.2d at 760. To determine
if the governing authority's decision regarding a resubdivision request is valid, the trial court must ask
whether the decision bears so little relationship to public safety, health, or general welfare as to render it
arbitrary and capricious. Id.Thus, the trial court in this case applied the same law as in K.G.T. Holdings.
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process of law. Palermo Land Co., Inc. v. Planning Com’n of Calcasieu Parish, 561
So.2d 482 (La. 1990).
Because zoning falls under the jurisdiction of the legislative branch, courts
will not interfere with their prerogative unless the action is palpably erroneous and
without any substantial relation to the public health, safety, or general welfare.
Toups v. City of Shreveport, 10-1559 (La. 03/15/11), 60 So.3d 1215, 1217.
Arbitrary and capricious means willful and unreasoning action, absent consideration
and in disregard of the facts and circumstances of the case. Id. However, when there
can be two differing opinions, an action is not arbitrary or capricious when exercised
honestly and upon due consideration, even though it may be believed an erroneous
conclusion has been reached. Id.; Palermo, 561 So.2d at 493 (when the property of
a zoning decision is debatable, it will be upheld). Generally, the action of a
governmental body is arbitrary and capricious and unreasonable if it bears no
relation to the health, safety, or general welfare of the public. Toups, 60 So.3d at
1217; King v. Caddo Parish Commission, 97-1873 (La. 10/20/98), 719 So.2d 410,
418.
DISCUSSION
Appellant contends that the trial court erred in affirming the Council’s denial
of its application to rezone the property.3 Appellant argues that it followed all the
proper steps for rezoning, the Planning Department recommended the application
for rezoning, the owner of the property next to the Bonnabel property did not object
to the rezoning request or use of the property as a parking lot and it provided expert
3 In its second assignment of error, appellant contended that the Council’s denial of its application for
rezoning was either an abuse of discretion, unreasonable exercise of police powers, an excessive use of
powers granted to the council, or the denial of the right of due process and must be reversed. In its third
assignment of error, appellant argued that the Council’s denial of its application for rezoning was arbitrary
and capricious, and did not bear any relation to public health, safety and general welfare, if the lower
standard applies, and must be reversed.
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reports in favor of rezoning.4 Appellant contends that despite overwhelming
evidence in favor of rezoning, the Council denied appellant’s application for
rezoning even though opponents to the rezoning did not present a single fact,
document or study to support their position.
In this case, several neighbors testified in opposition to the proposed rezoning
stating that the rezoning would affect their quality of life and it would increase noise,
traffic, and litter. Councilwoman Van Vrancken stated she had received numerous
emails in opposition to the proposed rezoning and stated that the opponents
presented evidence to show rezoning would affect the health, safety, and welfare of
the public. The record shows that the president of the Association testified that all
of its 172 members vehemently opposed “any” proposed rezoning in the area.
Petitions in opposition to the application for rezoning were submitted, one contained
100 plus signatures and the other contained 200 plus signatures. The opponents
asserted the proposed rezoning would affect their quality of life and they opposed
similar commercial encroachment into the neighborhood over the years, mentioning
applications for rezoning from Gulf Coast Bank, Walgreens, and Safari Car Wash.
The opponents argued that similar requests for rezoning by businesses have been
denied, that and if this application is granted, those businesses will again seek
rezoning which will further encroach into the neighborhood. The opponents argued
against any commercial encroachment into their quiet, family, residential
neighborhood.
The concerns and desires of the electorate are appropriate considerations in
the decision making process on zoning. Jenniskens v. Parish of Jefferson, 06-252
(La. App. 5 Cir. 10/17/06), 940 So.2d 209, 215. The opinion of the neighborhood
4 Jefferson Parish argued that the reports were not properly admitted and should not be considered. We
find that the reports were offered to and were considered by the Council. Accordingly, for purposes of this
appeal, the expert reports were considered by this Court.
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association and other residents in the area must be given weight for determining the
nature and character of the area. Id.Upon review, considering the evidence and testimony presented in favor of
and against the application for rezoning, we find the Council acted reasonably in
denying appellant’s re-zoning application, and that appellant has not overcome the
presumption that the Council’s zoning decision is reasonably related to the health,
welfare, and safety of the public. We therefore find that the Council’s denial of
appellant’s application for rezoning was rationally related to the general health,
safety, and welfare of the public, and was not arbitrary and capricious.
DECREE
For the above discussed reasons, we affirm the trial court’s judgment.
AFFIRMED
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SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
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GRETNA, LOUISIANA 70054 (504) 376-1400
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www.fifthcircuit.org
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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 26, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-CA-269
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE JUNE B. DARENSBURG (DISTRICT JUDGE)
ROBERT G. HARVEY, SR. (APPELLANT) TAMARA K. JACOBSON (APPELLANT) LOREN C. MARINO (APPELLEE)
DONALD C. DOUGLAS, JR. (APPELLANT)
MAILED
HANNON VEY LAPLACE (APPELLANT)
ATTORNEY AT LAW
600 NORTH CARROLLTON AVENUE
NEW ORLEANS, LA 70119