G & H Development, LLC v. Penwell

9 F. Supp. 3d 658, 2014 U.S. Dist. LEXIS 41398, 2014 WL 1248227
CourtDistrict Court, W.D. Louisiana
DecidedMarch 26, 2014
DocketCivil Action No. 13-0272
StatusPublished
Cited by2 cases

This text of 9 F. Supp. 3d 658 (G & H Development, LLC v. Penwell) is published on Counsel Stack Legal Research, covering District Court, W.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
G & H Development, LLC v. Penwell, 9 F. Supp. 3d 658, 2014 U.S. Dist. LEXIS 41398, 2014 WL 1248227 (W.D. La. 2014).

Opinion

MEMORANDUM RULING

S. MAURICE HICKS, JR., District Judge.

Before the Court is a Rule 12(b)(6) Motion to Dismiss the Claims against Defen[660]*660dants Doyle Adams (“Adams”), Jim Morris (“Morris”), and Fred Rankin (“Rankin”), Individually, and the Benton-Parish Metropolitan Board of Adjustment (“the Board of Adjustment” or “the Board”) for Judicial Immunity. See Record Document 38. Plaintiff G & H Development, LLC (“G & H”) opposed the motion. See Record Document 43. For the reasons which follow, the Motion to Dismiss is DENIED.

I.BACKGROUND.

G & H is engaged in the business of developing immovable property by subdividing same into subdivision lots; building necessary streets and other improvements for a subdivision; and developing and selling individual lots, including lots with and without homes constructed thereon. See Record Document 36 (First Supplemental, Amending and Restated Complaint) at ¶ 7. G & H filed the instant lawsuit in early 2013 after Defendants refused to approve (1) its initial application for re-zoning and application for approval of a subdivision plat and (2) its subsequent application for approval of a new subdivision plat (with no accompanying application for re-zoning). See id. at ¶¶ 38-124.

G & H named the following as Defendants: Nancy Penwell (“Penwell”), in her personal capacity; Benton-Parish Metropolitan Planning Commission; Adams, Morris, and Rankin, all in their personal capacities; the Board of Adjustment; Bossier Parish Police Jury; and Parish of Bossier. See id. at ¶ 3.G & H. sets forth seven claims for relief:

I. Declaratory judgment for violation of G & H’s rights to due process and equal protection under the United States Constitution;
II. Declaratory judgment for violation of G & H’s rights to due process and equal protection under the Louisiana Constitution;
III. Declaratory judgment that the planning commission and Bossier Parish have not lawfully established any zoning affecting land in the metropolitan planning area, including the property;
IV. Declaratory judgment that G & H is entitled to the issuance of a certificate by the planning commission to the effect that Subdivision Plat 2 is approved;
V. Injunctive relief;
VI. Damages; and
VII. Attorney’s fees.

See id. at ¶¶ 135-158. Defendants contend that G & H has also asserted a takings claim under the Fifth Amendment. See Record Document 40. G & H has abandoned its equal protection claims. See Record Documents 50 & 51. In an earlier ruling, this Court also dismissed G & H’s claims against Penwell, in her individual capacity, on the grounds of qualified immunity. See id.

On November 9, 2012, G & H submitted its application for approval of Subdivision Plat 2 (approval of a new subdivision plat, with no accompanying application for rezoning). See Record Document 36 at ¶ 59. The submission was given to Penwell, Zoning Administrator of the Benton-Parish Metropolitan Planning Commission. See id. The application was returned by a letter dated December 4, 2012, written by the Parish Attorney, Mr. Patrick R. Jackson. See id. at ¶ 63; Record Document 1-2. In the letter, Mr. Jackson explained that the application was not being considered because G & H had not requested that the property be rezoned and, according to Penwell, an application for rezoning of the Property could not be filed for six months. See id. at ¶¶ 65-66; Record Document 1-2. Mr. Jackson advised G & H that “should you disagree with this admin[661]*661istrative interpretation of applicable ordinances, you may file an appeal with the Benton-Parish Board of Appeals1 under Sec. 126-1139(a)(1).” Record Document 1-2 at 3.

The key factual allegations relevant to G & H’s claims against Adams, Morris, Rankin, and the Board of Adjustment are as follows:

81. A hearing was held by the ... Board ... on January 17, 2013.
82. The Board ... acted with respect to the appeal, although their lack of authority was brought to the board’s attention. The Board ... did not comment upon whether it had or did not have authority to hear and decide an appeal from decision not to consider a subdivision plat.
83. The Board ... does not exercise any legislative function.
84. The Board ... does not conduct adjudicative hearings or hear matters as a judicial or quasi-judicial forum ....
85. Under its powers, the Board ... acts in an executive or administrative capacity to make official policy through appeals from decisions and refusals made by any permit and zoning clerk of the village or parish or any other administrative official in the carrying out or enforcement of any provision of any ordinance enacted under state law concerning zoning within the metropolitan planning area.
86. As described herein, the Board ... in this case refused to allow G & H to submit testimony under oath.
87. Instead, the Board ... acted in an administrative or executive capacity and conducted a public hearing.
88. ... Adams, Morris and Rankin were the only members of the Board ... who attended the hearing.
89. ... Adams, Morris and Rankin attended the hearing acting under color of state law, i. e., acting under color of the authority of the Police Jury and Bossier Parish, as expressed by Mr. Jackson, to make interpretations of the regulations contained in the Planning Commission’s Zoning and Land Use booklet and the ordinances of Bossier Parish.
90. ... Adams, Morris and Rankin were specifically informed by the aforesaid application that their maintenance of the position of the Planning Commission and/or its administrator would clearly be a violation and denial of G & H’s lawful, constitutional and civil rights.
91. Penwell was present at the hearing and sat at the front of the room with ... Adams, Morris and Rankin.
92. When the hearing commenced, the Board ... Penwell who recounted from a script certain of the events concerning Subdivision Plat 1 and recited the facts of G & H’s submission of its Subdivision Plat 2 to the Planning Commission by delivery of it to her with the required filing fee.
93. Penwell also stated the position of the Planning Commission citing its “ordinance” (referring to the regulations in the Planning Commission’s Zoning and Land Use booklet) and the ordinances of Bossier Parish.
94. Penwell explained that she had determined, after consulting with attorney Neil T. Erwin, that if the application for Subdivision Plat 2 was brought to the Planning Commission’s, to direct the applicant to the [662]*662office of Mr. Patrick Jackson, the parish attorney.

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Bluebook (online)
9 F. Supp. 3d 658, 2014 U.S. Dist. LEXIS 41398, 2014 WL 1248227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/g-h-development-llc-v-penwell-lawd-2014.