City of Hammond v. Parish of TangipahoaCity of Hammond v. Parish of Tangipahoa
Scott M. Perrilloux, District Attorney, Clifton T. Speed, Assistant District Attorney, Greensburg, LA, for Defendant-Appellant, Parish of Tangipahoa.
Brett P. Furr, Matthew L. Mullins, Taylor, Porter, Brooks & Phillips, L.L.P., Baton Rouge, LA and J. Parker Layrisson, Scandurro & Layrisson, L.L.C., Ponchatoula, LA, for Defendants-Appellants, Great Southern Investment and Asset Management, Inc., Cameo Development, Boardwalk Apartments, and WFK & Associates, L.L.C.
Before PARRO, KUHN, and DOWNING, JJ.
PARRO, J.
WFK & Associates, L.L.C. (WFK), Great Southern Investment and Asset Management, Inc. (Great Southern), and Cameo Development Corporation (Cameo)1 (jointly, the developers), along with the Parish of Tangipahoa (the Parish),2 appeal a judgment against them and in favor of the City of Hammond. The judgment
The judgment also included a writ of mandamus, ordering the Parish Council to review and revise its ordinances regarding the Planning Commission‘s rules concerning approval or disapproval of subdivision development plans and further ordering it to schedule and hold a public hearing on the development plans at issue. The Parish appeals the writ of mandamus.
FACTUAL AND PROCEDURAL BACKGROUND
This litigation involves a $40 million, 300-unit apartment complex planned by the developers for construction on 44 acres owned by WFK outside the city limits of Hammond in an unincorporated area of the Parish. The proposed development is near Southeastern Louisiana University and is planned to accommodate student renters. Great Southern and Cameo are WFK affiliates and are under contract to develop the property, which is to be called Boardwalk Apartments. The property is not subject to any comprеhensive zoning or land use plan, but is subject to subdivision regulations of the Parish, which require approvals from various public entities before final approval can be granted by the Planning Commission. The developers had secured approval from the Parish Drainage District, the Department of Health and Hospitals, and the State Fire Marshall, as well as preliminary approval from the Planning Commission.3 The developers had not yet sought or obtained the final approval of the Planning Commission, which would allow construction to commence.
The City of Hammond (the City) opposed the development, which was to be built on property immediately adjacent to, but outsidе of, the city limits, and resolved to “request and demand” that the Parish receive approval from the City before final approval of the project. This request was rejected in two meetings of the Parish Council. Following those rejections, the City passed a resolution authorizing litigation concerning the project. The City‘s petition requested a declaratory judgment that the subdivision ordinances of the Parish were unconstitutional, injunctive relief to set aside the preliminary approval and permanently stop the development project, and a writ of mandamus to the responsible public entities. The City added Nicky Muscarello, Sr., a former city councilman, as аn additional party plaintiff. Exceptions raising the objections of no right of action and no cause of action filed by the developers were denied.
Before trial, the parties stipulated that the preliminary injunction hearing would serve as a trial of all the issues, including the preliminary and permanent injunctive relief sought by the plaintiffs.4 After trial, the court found that the subdivision ordinance was not unconstitutional and denied the plaintiffs’ requests for a declaratory
MOTIONS TO SUPPLEMENT THE RECORD
As a preliminary matter, the City and Muscarello argue that the developers’ and the Parish‘s appeals have become moot, because on Jаnuary 8, 2007, pursuant to the writ of mandamus, the Parish Council heard the developers’ plans in a public hearing and voted to deny final approval of the project. The City moved to supplement the record on appeal to include evidence of this decision. In a second motion, it asked to supplement the record to include a copy of Tangipahoa Parish Ordinance No. 07-89, which, in response to the writ of mandamus, was passed by the Parish Council on September 10, 2007, and signed by the council president on September 11, 2007.6
The developers oppose the motions, citing wording in the judgment that the decision of the Parish Council would not affect any right or actiоn that any person or party may have as a result of that decision. They also note the City‘s agreement in open court “that neither party waives any right of appeal.” They also contend that, taken to its logical conclusion, the City‘s argument would preclude redress in a court of law when a judgment is adverse to one party‘s interests and the adverse party takes steps to effectuate that judgment while an appeal is pending. Finally, in opposing the motion to supplement the record, the developers contend this court is not allowed to receive new evidence of matters outside the lower court‘s record, particularly concerning matters that had not yet occurred when the trial was held.
Louisiana Code of Civil Procedure article 2164 states that the appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, jury instructions, judgments, and other rulings, unless otherwise designated. Tranum v. Hebert, 581 So.2d 1023, 1026 (La.App. 1st Cir.), writ denied, 584 So.2d 1169 (La. 1991). An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Id. at 1026; Guedry v. Fromenthal, 633 So.2d 287, 289 (La.App. 1st Cir.1993); MMR-Radon Constructors, Inc. v. Continental Ins. Co., 97-0159 (La.App. 1st Cir.3/3/98), 714 So.2d 1, 4, writ denied, 98-1485 (La.9/4/98), 721 So.2d 915; Dawson v. Cintas Corp., 97-2275 (La.App. 1st Cir.6/29/98), 715 So.2d 165, 167. As an appellate court, we have no jurisdiction to receive new evidence. Hudson v. East Baton Rouge Parish School Bd., 02-0987 (La.App. 1st Cir.3/28/03), 844 So.2d 282, 284.
Although this court is generally precluded from admitting new evidence, we are mandated by Article 202(A) of the Louisiana Code of Evidence to take judicial notice of the laws of the United States, of every state, territory, and other jurisdiction of the United States, and of the ordinances enacted by any political subdivision within the court‘s territorial jurisdiction whenever certified copies of the ordinances have been filed with the clerk of that court. See, e.g., Cat‘s Meow, Inc. v. City of New Orleans through Dept. of Finance, 98-0601 (La.10/20/98), 720 So.2d 1186, 1192 n. 7; see also
In the first motion to supplement the record filed on June 6, 2007, it was brought to our attention that after the district court signed its judgment on December 27, 2006, the Parish Council held a public meeting, as mandated by the court. During that meeting on January 8, 2007, the Parish Council denied final approval of the proposed development project. The first motion submitted a copy of the minutes of that meeting and requested this court to admit this evidence and consider the effect of this action on the issues in the aрpeal.
However, since that meeting occurred after the district court signed its judgment, the minutes of the meeting could not possibly be a part of the record sent to this court. Nor do the minutes of the Parish Council fall within any of the criteria of
The second motion to supplement the record informed this court that the Parish Council had passed Tangipahoa Parish Ordinance Number 07-59 on September 10, 2007; a copy of the ordinance was submitted with the motion. That ordinance required any developer/owner of a proposed multi-family dwelling in an unincorporated area of the Parish, but within one thousand feet of a municipality, to notify the mayor of the municipality and various other public officials whose agencies or departments might be affected by the proposed project. This second motion consists of evidence of an ordinance of a political subdivision. Furthermore, a party has requested that this court consider it as part of the record on appeal and has provided this court with the informаtion needed for us to comply with the request. Because the ordinance fits the criteria of
MOOTNESS
The City contends this appeal is moot because the actions mandated by the trial court judgment have already taken place, leaving nothing to be litigated. Having concluded that this court may not supplement
It is well settled that courts will not decide abstract, hypothetical, or moot controversies, or render advisory opinions with respect to such controversies. See St. Charles Parish Sch. Bd. v. GAF Corp., 512 So.2d 1165, 1170-71 (La.1987). Cases submitted for adjudication must be justiciable, ripe for decision, and not brought prematurely. A “justiciable controversy” is one presenting an existing actual and substantial dispute involving the legal relations of parties who have real adverse interests and upon whom the judgment of the court may effectively operate through a decree of conclusive character. A “justiciable controversy” is thus distinguished from one that is hypothetical or abstract, academic, or moot. Id. at 1171; St. Charles Gaming Co., Inc. v. Riverboat Gaming Com‘n, 94-2679 (La.1/17/95), 648 So.2d 1310, 1315.
An issue is moot when a judgment or decree on that issue has been “deprived of praсtical significance” or “made abstract or purely academic.” Thus, a case is moot when a rendered judgment or decree can serve no useful purpose and give no practical relief or effect. If the case is moot, there is no subject matter on which the judgment of the court can operate. That is, jurisdiction, once established, may abate if the case becomes moot. The controversy must normally exist at every stage of the proceeding, including the appellate stages. A case may become moot for several reasons, including because the law has changed; because defendant has paid funds owed аnd no longer wishes to appeal, notwithstanding plaintiff‘s desire to obtain a higher court ruling; because allegedly wrongful behavior has passed and could not reasonably be expected to recur; because a party could no longer be affected by a challenged statute, for example, a law regulating rights of minors when the party, through lapse of time, is no longer within the age brackets governed by the statute; or because a party has died. Cat‘s Meow, 720 So.2d at 1193 (citations omitted).
It is not enough that the requirements of justiciability are satisfied when the suit is initially filed; the requirements must remain throughout the course of litigation up to the moment of final disposition. When a challenged article, statute, or ordinance has been amended or expired, mootness may result if the change corrects or cures the condition complained of or fully satisfies the claim. Further, if it is concluded that the new legislation was specifically intended to resolve the controversy, a court may find that the case or controversy is moot. In such a case, there may no longer be an actual controversy for the court to address, and any judicial adjudication on the matter would be an impermissible advisory opinion. Cat‘s Meow, 720 So.2d at 1193-94.
Reviewing the ordinance passed by the Parish Council in September 2007, we note that it requires the developer/owner of a proposed development to give notice to various public officials who serve in a municipality that is within one thousand feet of the proposed development, stating this should be done:
. . . when the Parish Engineer and Parish Public Works Director determines [sic] that cooperation between the parish and any incorporated area within the parish is necessary to address adequate infrastructure needs of the proposed development.
The developer/owner or his agent may be required to give 30 day advance written notice by certified mail of the proposed development, including the date, time and place of the Planning Commission public hearing and a narrative description of the proposed development and provide contact information to [certain designated public officials]. . . .
The ordinance also states that “[t]his Notification is for information purposes only and comments may or may not effect [sic] the proposed Development[.]”
This ordinance includes many discretionary terms. First, notice is only required when the Parish Engineer and Parish Public Works Director determine that cooperation between the parish and any incorporated area within the parish is necessary. Apparently, if both of these persons do not agree that such cooperation is necessary, no notice is requirеd, regardless of what the adjacent incorporated area or municipality may desire. The ordinance further states the developer/owner of the proposed development “may be required” to give thirty days advance notice, which notice is to include a narrative description of the proposed development, along with information concerning the Planning Commission‘s public hearing. The ordinance does not state that the notice provision is mandatory. And, more significantly, the ordinance states in a concluding sentence that the notification “is for information purposes only and comments may or may not” affect the propоsed development.
We do not see how this ordinance provides any protection or benefit to an affected municipality beyond what was already provided in the Planning Commission‘s procedures. According to the testimony at trial, the Planning Commission always holds a public hearing when a new development is proposed, either when the preliminary application is discussed or when the final approval is being considered. In fact, the evidence reveals that the subdivision regulations require a public hearing before final approval of a proposed subdivision.7 According to Luke Benner, who served on the Planning Commission, the public hearing is usually held at thе meeting when the preliminary application is considered. He further testified that in this case, a public hearing before the Planning Commission was held in connection with the application for preliminary approval of the Boardwalk Apartment project and was attended by “a full house of those that were against the proposal.” Some of those who commented on the proposal brought up the City‘s and adjoining residential neighborhoods’ concerns about residential density, traffic, drainage, sewage, public safety, and other potential infrastructure problems. However, Benner said the Planning Commission had no authority to take those concerns into consideration, because its authority was limited to confirming that the developers had followed the applicable Parish subdivision regulations. Those regulations required approval of the project by various public entities, such as the Parish Drainage District, the Department of Health and Hospitals, and the State Fire Marshall, but the Planning Commission did not have to get consent from any other entity before approving or disapproving a development project. Nor did the Parish regulations require the Planning Commission to respond to the concerns of the general public, neighbors, or adjoining municipalities when considering a development project in an uninсorporated area of the parish.
ANALYSIS
The Parish contends the district court erred as a matter of law in mandating that the Parish Council revise its procedures and enact particular legislation. It argues that approval of regulations and ordinances concerning subdivision development is a legislative function, which the court had no authority to exercise. In addition, the Parish contends the court erred in ordering the Parish Council to exercise final approval or disapproval of this particular project, when it had specifically delegated to the Planning Commission the authority to approve or deny development projects in accоrdance with the applicable statutes and ordinances.
The developers assign as error: whether the City or Muscarello has a cause or right of action concerning a development beyond the City‘s boundaries; whether the court erred in approving the subdivision regulations, but then exceeded its constitutional authority in exercising a legislative function by adding a condition for final approval applicable only to the developers; whether this condition violates the Louisiana Constitution by being applicable only to the developers in this case and not to any other landowners or developers; and whether the City waived its right to challenge thе constitutionality of the ordinances and Parish regulations by failing to serve a copy of the petition on the Louisiana Attorney General.
The initial argument of the City and Muscarello was that this action is moot. Since we have already determined that it is not, we note their alternative argument is that because the Parish Council has the final authority over actions of the Planning Commission, the court‘s mandamus order was appropriate. They also claim that the developers were not named as “defendants” in the petition, but simply as “interested persons” who were named as “parties” in the first supplementing and amending petition. They contend that since only a defendant can raise an exception, the developers had no standing to claim no right or cause of action. They further argue that the City had a right of action to restrain action by a public body affecting its safety, drainage, traffic, law enforcement, and funds.
We address first the mandamus issue raised by the Parish. According to
According to
[T]he act of approving or disapproving a subdivision plat is hereby declared a legislative function involving the exercise of legislative discretion by the planning commission, based upon data presented to it; provided that any subdivision ordinance enacted by the governing authority of a parish or municipality or the acts of the planning commission, or planning administrator shall be subject to judicial review on the grounds of abuse of discretion, unreasonable exercise of police powers, an excessive use of the power herein granted, or denial of the right of due process. The right of judicial review of a subdivision ordinance shall not be limited by the foregoing, however, nothing contained in this Subpart or in any subdivision ordinance adopted by a parish or municipality shall be construed as imposing upon such parish or municipality a duty, special or otherwise, to or for the benefit of any individual person or group of persons.
The Louisiana Supreme Court, relying on Berkovitz by Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), has devised a two-step test which courts generally employ to determine whether an action is a discretionary function.8 First, if a statute, regulation, or policy prescribes a particular course of action, there is no choice or discretion involved. However, when acts of government employees involve an element of choice, they are discretionary acts if the choices are grounded in social, economic, or political policy. Simeon v. Doe, 618 So.2d 848, 852-53 (La.1993); Lambert v. Riverboat Gaming Enforcement Div., 96-1856 (La.App. 1st Cir.12/29/97), 706 So.2d 172, 177-78, writ denied, 98-0297 (La.3/20/98), 715 So.2d 1221. Neither the trial court nor a reviewing court may substitute its wisdom for that of the governing body, except when there is an abuse of discretion or an еxcessive use of power. Investment Mgmt. Services, Inc. v. Village of Folsom, 00-0832 (La.App. 1st Cir.5/11/01), 808 So.2d 597, 604.
The district court judgment in this case states, in pertinent part:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Application for Declaratory Judgment be denied. . . .
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Motion for Injunctive Relief be denied. . . .
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that if and when [the developers] should submit [their] application(s) for final approval of that development which is the subject of this litigation, that the TANGIPAHOA PARISH COUNCIL-PRESIDENT GOVERNMENT shall hold a duly and legally noticed public hearing before the Tangipahoa Parish Council, rather than the Tangipahoa Parish Planning Commission, at which hearing the public shall be given an opportunity to participate by allowing public comments on said application and issuance of final approval on the permit fоr the Boardwalk Apartment development. No permits shall be issued in connection with the application until this public hearing is duly held and thereafter voted upon by the Tangipahoa Parish Council. The decision of the Tangipahoa Parish Council as to this application does not affect any right and/or action that any person or party may have as a result thereof. Excepting for the substitution of the TANGIPAHOA PARISH COUNCIL-PRESIDENT GOVERNMENT for the Tangipahoa Parish Planning Commission all of the rules, notice and procedures currently in place shall apply to this particular final approval process.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Writ of Mandamus be and is hereby granted. As such, the TANGIPAHOA PARISH COUNCIL-PRESIDENT GOVERNMENT is ordered to review and revisе its ordinances regarding the Tangipahoa Parish Planning Commission‘s rules and procedures and that [sic] the TANGIPAHOA PARISH COUNCIL-PRESIDENT GOVERNMENTS ordinances regarding subdivisions such that all these ordinances allow for meaningful public participation and input and with the corresponding obligation on the part of this parish government to consider this public input prior to and in connection with the application process. Furthermore, this review and revision must permit the public a level of participation that meets and satisfies the public‘s constitutional and legal due process. All of the above must be completed on or before January 31, 2007.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the public hearing on the [developers‘] application for final approval and the vote thereon be held in accordance with the law and no later than the Parish Council‘s January 8, 2007, meeting.
Mandamus lies only to compel performance of purely ministerial duties; it may not issue to compel performance of an act which contains any element of discretion, however slight. In the matter before us, the Planning Commission had authority granted to it by the Parish Council to approve or disapprove subdivision projects, following certain procedures and ordinances that had been established by the Parish Council. According to
Perhaps some corrective action would have been legally appropriate if the district court had determined that the current procedures and ordinances covering approval or disapproval of subdivision developments were unconstitutional. Howеver, although the court mentioned “due process,” it did not conduct an analysis of whether the City was owed due process and did not conclude that the statutory scheme denied the City or its citizens due process. Rather, the court specifically stated in oral reasons:
So, for the purposes of the Declaratory Judgment, that will be denied. I do not find that it‘s unconstitutional, a violation of the Home Rule Charter, the State of Louisiana and all of that.
Even if some corrective action were necessary to cure an unconstitutional ordinance, the passage of a new or revised ordinance would be strictly a legislative function. The legislative body, in this casе the Parish Council, could use its discretion and decide not to pass new or revised legislation, but to simply repeal the unconstitutional provision. Also, the legislative body would have discretion to choose among various curative provisions, should it decide to pass a new or revised ordinance to cure the unconstitutionality of the previous ordinance. Again, these would be legislative functions with discretion over the means by which a court‘s declaratory judgment would be effectuated. Therefore, even if the court had declared the current ordinances and procedures unconstitutional, it should not have mandated the legislative body to take speсific corrective action.
We must conclude that the district court legally erred by: mandating that the Parish Council and the Planning Commission follow a different procedure for final approval of this particular development; ordering the Parish, through the Parish Council, to change its procedures and ordinances; and mandating that these legislative functions be accomplished in accord with the court‘s directions and timing. It is clear from the oral reasons that the court recognized its judgment may be on legally shaky grounds, since it stated, “I‘m probably going to do something that is going to open a little can of worms, but that‘s okay.” This court concludes that it was not “okay” for the court to issue a writ of mandamus to compel a legislative body to pass legislation with certain provisions specified by the court.9
Therefore, if the post-trial actions of the developers, the Parish through the Parish Council, or the Planning Commission were performed solely to satisfy the court‘s orders and writ of mandamus, those entities must now be given the opportunity to reconsider those actions. Like the district court, however, we cannot mandate that the Parish Council or the Planning Commission take particular steps in response to this court‘s judgment. Nor can we invalidate the post-trial decisions made by the parties. Therefore, we do not remand this matter, because the dеcision to take or not to take certain actions upon receipt of this court‘s judgment is not a decision that the district court can make.
CONCLUSION
Based on the foregoing, the June 6, 2007 motion to supplement the record is denied;
JUNE 6, 2007 MOTION TO SUPPLEMENT THE RECORD IS DENIED.
OCTOBER 22, 2007 MOTION TO SUPPLEMENT THE RECORD IS GRANTED.
PORTION OF JUDGMENT DENYING DECLARATORY AND INJUNCTIVE RELIEF IS AFFIRMED.
PORTIONS OF JUDGMENT ORDERING SPECIFIC ACTIONS TO BE TAKEN BY THE PARISH COUNCIL AND GRANTING A WRIT OF MANDAMUS ARE REVERSED.
DOWNING, J., concurs.