182 So. 3d 1252
La. Ct. App.2015Background
- The Berrys owned two contiguous parcels (4.4 acres) in Terrytown zoned MUCD; they entered a purchase agreement with Volunteers of America (VOA) for a high‑density elderly housing project.
- Jefferson Parish Council adopted resolutions calling for a zoning and land‑use study of a 23.67‑acre area (including the Berry property) and a moratorium on permits while the study proceeded.
- The study led to rezoning: the front tract to C‑1 (neighborhood commercial) and the rear tract to R‑1A (single‑family residential), aligning zoning with the Parish’s 2003 Land Use Plan and reducing nonconforming uses.
- The Berrys filed suits alleging the study, moratorium, and rezoning were arbitrary and capricious, amounted to a regulatory taking, violated right to contract and age‑discrimination protections, and sought damages; lower court granted summary judgment for the Parish but this court remanded for trial on factual issues.
- At trial, testimony by Parish officials and planners showed the study reconciled conflicts between MUCD zoning and the Land Use Plan, considered multiple uses, solicited public input, and was motivated by concerns about residential character and public welfare; the Berrys’ expert criticized the study area and zoning choices.
- The trial court found the Parish’s actions were not arbitrary and capricious and denied damages; the appellate court AFFIRMED, holding the rezoning bore a substantial relation to health, safety, and welfare and did not effect a regulatory taking.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether calling the zoning study and resulting rezoning were arbitrary and capricious | Berrys: study was bad faith targeting VOA project to block development; rezoning arbitrary | Parish: study reconciled zoning with Land Use Plan, preserved residential character, was proper planning | Held: Not arbitrary/capricious; actions related to public health, safety, welfare |
| Whether the moratorium during the study was wrongful or a taking | Berrys: moratorium halted VOA sale/project and was arbitrary | Parish: moratorium is automatic, temporary consequence of lawful study; permitted under planning power | Held: Moratorium lawful; temporary moratoria do not constitute takings |
| Adequacy and size of the study area | Berrys: 23 acres too small, improperly focused; should include broader corridor | Parish: study area appropriate for local context; expansion would have similar rezoning outcomes | Held: Study area reasonable; no merit to claim it was unreasonably small |
| Whether rezoning constituted spot/reverse spot‑zoning or regulatory taking | Berrys: rezoning singled out their undeveloped land and destroyed value (taking) | Parish: rezoning applied across study area, harmonized with plan, did not eliminate all economic use | Held: Not spot‑zoning or taking; diminution in value alone insufficient; property retained permissible uses |
Key Cases Cited
- Glickman v. Parish of Jefferson, 224 So.2d 141 (La. App. 4th Cir. 1969) (owners hold property subject to local police power; no vested right in existing zoning)
- Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962) (regulation does not guarantee most profitable use; diminution in value alone not a taking)
- Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978) (takings analysis considers economic impact and investment‑backed expectations)
- Palermo Land Co. v. Planning Comm’n of Calcasieu Parish, 561 So.2d 482 (La. 1990) (heavy burden on challenger to prove rezoning invalid as arbitrary and capricious)
- Tahoe‑Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002) (temporary moratoria pending planning decisions do not necessarily constitute takings)
- Four States Realty Co. v. City of Baton Rouge, 309 So.2d 659 (La. 1974) (spot‑zoning principles; rezoning must be harmonious with comprehensive plan)
- Monte v. Parish of Jefferson, 898 So.2d 506 (La. App. 5th Cir. 2005) (definition and analysis of spot‑zoning)
- Major v. Pointe Coupee Parish Police Jury, 978 So.2d 952 (La. App. 1st Cir. 2007) (regulatory‑taking requires destruction of all or nearly all practical use)