FIRST CIRCUIT
NO. 2023 CA 1051
HONEYBEE HOLDINGS, LLC
VERSUS
ST. TAMMANY PARISH ZONING COMMISSION AND ST. TAMMANY PARISH GOVERNMENT
Judgment Rendered: MAY 3 12024
Appealed from the 22nd Judicial District Court In and for the Parish of St. Tammany State of Louisiana Case No. 2022- 16034, Division I
The Honorable Reginald T. Badeaux, 111, Judge Presiding
Tom Easterly Counsel for Plaintiff/Appellant Peyton T. Gascon Honeybee Holdings, LLC Baton Rouge, Louisiana
J. Collin Sims Counsel for Defendant/ Appellee
District Attorney St. Tammany Parish Government Emily G. Couvillon James J. Bolner, Jr. Angel L. Byrum Assistant District Attorneys Mandeville, Louisiana
Miles P. Clements Counsel for Intervenor/Appellee
Zachary J. Ardoin Bayou Liberty Association, Inc. New Orleans, Louisiana
BEFORE: THERIOT, PENZATO, AND GREENE, JJ. THERIOT, J.
In this appeal, Plaintiff, Honeybee Holdings, LLC (" Honeybee"), seeks
review of a trial court judgment sustaining several exceptions filed by Defendant,
St. Tammany Parish Government (" STPG"), and dismissing Honeybee' s petition
for issuance of a writ of mandamus. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
According to the allegations in the petition, Honeybee owns approximately
275 acres of undeveloped property situated in St. Tammany Parish. This tract of
land is zoned as TND -2 Traditional Neighborhood Development (" TND -2"). Per
this designation, the land may be developed for the purpose of establishing a
compact, walkable, mixed- use neighborhood where residential, commercial, and
civic buildings are within close proximity to each other. See St. Tammany Parish
Unified Development Code (" UDC"), Section 130- 1511. Prior to the issuance of
any permits for development of land zoned as TND -2, the UDC requires that the
following four steps be completed: ( 1) pre -application conference; ( 2) approval of
general implementation plan (" GIP") by the St. Tammany Parish Zoning
Commission (" Zoning Commission") and St. Tammany Parish Council (" STP
Council"); ( 3) approval of a specific implementation plan by the planning
commission; and ( 4) approval of a final plat by the planning commission. See
UDC, Section 130- 1516( a).
Honeybee began the process of developing the land in accordance with its 1 existing zoning designation in 2020. In its petition, Honeybee alleged it
completed the first step of the TND -2 development process, and no objections to
the proposed project were presented during or after the required conference.
1 Honeybee alleged that staff members of the St. Tammany Parish Department of Planning and Development originally advised it to seek alternative zoning status because the TND -2 process was novel and unfamiliar." At that time, no property zoned TND -2 had been approved and developed in St. Tammany Parish. After Honeybee filed a request to rezone the property as advised, the Zoning Commission and then the STP Council denied Honeybee' s request, and Honeybee proceeded with development under the land' s current zoning designation. Honeybee then proceeded to the next step in the development process by
submitting its first GIP on March 25, 2022. Honeybee alleged that it had several
conferences with the St. Tammany Parish Department of Planning and
Development (" the Department") " for the purpose of exchanging information and
a traditional determining the eligibility of the request for consideration as
neighborhood development." The director of the Department later recommended a
public workshop be held on July 19, 2022, to allow members of the Zoning
Commission, STPG officials, Honeybee' s development team, and members of the
general public to discuss the project. At that time and after, Honeybee alleged
STPG officials were " inconsistent with their ` guidance"' to Honeybee as it relates
to the TND -2 application process.
Honeybee submitted the final version of its GIP on October 6, 2022.
Honeybee alleged in its petition that its final GIP " was in compliance with all
requirements and recommendations imposed by the [ UDC] and/or requested by the
Department . . . and [ STPG] Officials" in the GIP submittal checklist they
provided. Thereafter, the Department issued a Zoning Staff Report regarding
Honeybee' s GIP, which Honeybee alleged " cited no deficiencies in the [ GIP]
based upon the pertinent [ UDC] provisions applicable to a property zoned TND -
2." The Zoning Staff Report did, however, suggest that Honeybee increase the
amount of land proposed for commercial and civic uses, or alternatively, decrease
the proposed density of the development, because the proposed 10, 000 square feet
of commercial space would not meet the daily needs of residents and would not
accomplish the purpose of the TND -2 ordinances. This recommendation was
made despite acknowledgement that " the TND -2 Ordinance [ in the UDC] does not
require a specific amount of commercial or civic uses."
The Zoning Commission held a public hearing on November 2, 2022, to
decide whether to approve, approve with conditions, or deny Honeybee' s GIP
3 application. General objections to the project were offered by nearby residents,
and the Zoning Commission ultimately recommended denial of Honeybee' s
request for approval of its GIP. Honeybee filed a timely appeal of the Zoning
Commission' s decision to the STP Council pursuant to Section 130- 1528 of the
UDC. 2 The appeal came for public hearing before the STP Council on December
1, 2022. Again, nearby residents spoke against Honeybee' s GIP, citing concerns
related to drainage, traffic, and perceived lack of retail and commercial space,
among other things. The STP Council voted to concur with the Zoning
Commission' s recommendation and denied the GIP.
Honeybee then filed a petition for issuance of a writ of mandamus, naming
STPG and the Zoning Commission as defendants, at the 22nd Judicial District
Court. Therein, Honeybee sought a judgment compelling STPG and/ or the Zoning
Commission to provide written reasons for the denial of its GIP and/ or compelling
the approval of its GIP, which it characterized as a purely ministerial duty.
According to Honeybee, the denial of its GIP concerns a " use by right" of its land,
and as such, an application for approval of a development plan in conformity with
all zoning and use requirements is " presumptively valid and approved." Therefore,
Honeybee asserted STPG' s denial of its GIP was arbitrary and capricious as it was
not based upon issues related to public safety, health, or general welfare.
Honeybee further alleged that "[ t]he delays associated with an ordinary proceeding
via statutory appeal and/ or petition for judicial review ... would unreasonably
jeopardize existing contractual rights belonging to Honeybee." Thus, Honeybee
maintained that " imposition of such an injustice upon Honeybee allows Honeybee
2 Section 130- 1528 of the UDC states, in pertinent part:
An applicant may appeal the findings and recommendations of the commissions or director of planning and development, as applicable, by filing an objection in writing to the council within five days of receipt of the commissions' or director of planning and development' s recommendations. The council shall grant or deny the appeal, and the council' s decision shall be final.
M to seek a writ of mandamus as its remedy." Honeybee also prayed for " all other
general and equitable relief."
In response to Honeybee' s petition, STPG and the Zoning Commission filed
several exceptions, including dilatory exceptions raising the objections of
unauthorized use of summary proceedings and improper cumulation and the
peremptory exception raising the objection of no cause of action.' In its
exceptions, STPG characterized Honeybee' s GIP as an application for a change of
the zoning designation of the land. STPG maintained the property is currently
designated as " TND -2 Concept." Pursuant to the UDC, the official zoning maps
will be changed upon approval of a GIP to classify the area as " TND -2 Planned."
Then, upon final approval, the property is designated as " TND -2." Thus, STPG
asserted that, because Honeybee sought to change the designation of the property
from TND -2 Concept to TND -2 Planned, and later TND -2, Honeybee " applied for
a zoning change." Since STPG exercises much discretion over zoning decisions,
see La. R.S. 33: 4721, et seq. & La. R.S. 33: 4780. 40, et seq., STPG asserted
mandamus is not available to compel approval of Honeybee' s GIP and urged the
trial court to dismiss Honeybee' s petition.
Honeybee opposed the exceptions. Honeybee first challenged STPG' s
characterization of the GIP as a rezoning application and instead maintained that it
is seeking to develop the land in conformity with its existing TND -2 zoning
designation. Further, Honeybee asserted that the TND -2 application process is
governed by objective zoning requirements in the UDC; therefore, Honeybee
asserted STPG was required to approve its GIP upon presentation of the required
documentation and completion of all requisite steps outlined in the UDC and GIP
submittal checklist. In other words, Honeybee argued that the action it seeks to
3 STPG and the Zoning Commission also asserted the dilatory exception raising the objection of lack of procedural capacity on behalf of the Zoning Commission. At the hearing, the parties stipulated to the dismissal of Honeybee' s claims against the Zoning Commission, rendering the exception of lack of procedural capacity moot.
5 compel from STPG is a ministerial duty, i. e., is not discretionary, thereby
rendering mandamus an appropriate remedy. Alternatively, Honeybee argued that
jurisprudence supports the use of mandamus " as [ a] vehicle to exercise its
constitutionally protected right to use its [ p] roperty in accordance with reasonable
and applicable restrictions — a right which [ STPG] has arbitrarily and capriciously
denied." In conclusion, Honeybee maintained STPG' s exceptions should be
overruled because Honeybee' s petition " asserts material factual allegations which,
if proven, entitle Honeybee to the issuance of a writ of mandamus."
The trial court held a hearing on the exceptions on March 8, 2023. At the
The conclusion of the hearing, the trial court took the matter under advisement.
trial court issued a written judgment signed on May 17, 2023. The judgment
sustained all exceptions, dismissed Honeybee' s suit with prejudice, and adopted
STPG' s memorandum in support of its exceptions as the written reasons for the
dismissal of Honeybee' s petition. This timely appeal followed. In a single
assignment of error, Honeybee asserts the trial court erred by sustaining STPG' s
exceptions " given the detailed allegations of arbitrary and capricious conduct
contained in Honeybee' s petition" and STPG' s failure to supply reasons for the
denial of Honeybee' s GIP.
APPLICABLE LAW AND STANDARD OF REVIEW
I. No Cause of Action
The purpose of the peremptory exception raising the objection of no cause of
action is to test the legal sufficiency of the petition by determining whether the law Singleton v. East Baton affords a remedy on the facts alleged in the petition.
Rouge Parish School Board, 2022- 0667 ( La. App. 1st Cir. 9/ 16/ 22), 353 So. 3d
164, 175. The purpose of the exception of no cause of action is not to determine
whether the plaintiff will ultimately prevail at trial, but to only ascertain if a cause
of action exists. Id. The trial court must presume all well -pleaded facts are true
0 for purpose of an exception of no cause of action. Midland Funding LLC v.
Welch, 2022- 0823 ( La. App. 1st Cir. 2/ 24/ 23), 361 So. 3d 1022, 1026.
The exception of no cause of action is triable only on the face of the petition
and any attached documentation,4 and no evidence may be introduced to support or controvert the objection.' Id. at 1026; La. Code Civ. P. art. 931. The burden of
demonstrating that a petition fails to state a cause of action is on the exceptor, and
an appellate court reviews a denial of an exception of no cause of action de novo.
Midland Funding, 361 So.3d at 1026.
II. Mandamus
In this case, STPD filed exceptions to the mandamus action initiated by
Honeybee. The general mandamus article of the Louisiana Code of Civil
Procedure defines mandamus as " a writ directing a public officer, a corporation or
an officer thereof, or a limited liability company or a member or manager thereof,
to perform any of the duties set forth in Articles 3863 and 3864." La. Code Civ. P.
art. 3861. A writ of mandamus may be directed to a public officer to compel the
performance of a ministerial duty required by law. La. Code Civ. P. art. 3863. A
ministerial duty is one in which no element of discretion is left to the public
officer; in other words, it is a simple, definite duty, arising under conditions
admitted or proved to exist, and imposed by law. If a public officer is vested with
any element of discretion, however slight, mandamus will not lie. Lowther v.
Town of Bastrop, 2020- 01231 ( La. 5/ 13/ 21), 320 So. 3d 369, 371; Istrouma
4 In this case, Honeybee attached several documents to its petition, including the original and revised GIPS and the GIP submittal checklist provided by STPG officials. All of these documents may be considered in our de novo review of STPG' s exception of no cause of action. See Midland Funding, 361 So. 3d at 1026. 5 The jurisprudence recognizes an exception to this rule, which allows the court to consider evidence admitted without objection. In those instances, the pleadings are considered to have been enlarged. Beem v. Beem, 2020- 0897 ( La. App. 1st Cir. 4/ 20/ 21), 324 So. 3d 682, 686. The parties herein introduced evidence at the hearing on the exceptions without objection and without identifying the exceptions being supported by the evidence. Because there were several exceptions pending before the court, including those for which evidence may be admitted, we decline to find the parties enlarged the pleadings for purposes of the exception of no cause of action.
7 Foods, LLC v. Iberville Parish Sales & Use Tax Department, 2019- 0867 ( La.
App. 1st Cir. 12/ 27/ 19), 292 So. 3d 966, 968- 69, writ denied, 2020- 00097 ( La.
3/ 9/ 20), 307 So. 3d 1029. Generally, the only circumstances under which courts
may cause writs of mandamus to issue are where the actions sought to be
performed are imposed by law and are purely ministerial in nature. See Pineville
City Court v. City of Pineville, 2022- 00336 (La. 1/ 27/ 23), 355 So. 3d 600, 604.
Despite a lack of a ministerial duty, mandamus may still be proper under
certain circumstances. In State ex rel. Torrance v. City of Shreveport, 93 So.2d
187 ( La. 1957), the Louisiana Supreme Court addressed the court' s ability to
correct the arbitrary and capricious acts of public officials through mandamus. The
Torrance court stated:
While it is the general rule that mandamus may be invoked only to coerce performance of duties that are purely ministerial in nature, it is well settled in this state as well as in other jurisdictions that the writ may also be employed to reach and correct an arbitrary or capricious abuse of discretion by public boards or officials.
Id. at 189. Generally, the action of a governmental body is arbitrary, capricious,
and unreasonable if it bears no relation to the health, safety, or general welfare of
the public. City of Baton Rouge v. Douglas, 2016- 0655 ( La. App. 1st Cir.
4/ 12/ 17), 218 So. 3d 158, 163. This court has continued to acknowledge this
exception to the ministerial requirement for mandamus as announced in Torrance.
See Salinger Group, Inc. v. City -Parish of East Baton Rouge, 2019- 0295 ( La.
App. 1st Cir. 7/ 24/ 20), 309 So. 3d 373, 382; Istrouma Foods, LLC, 292 So. 3d at
969; City of Baton Rouge, 218 So. 3d at 163.
IIL Applicable UDC Ordinances
A local government' s legislative authority to adopt regulations for land use,
zoning, and historic preservation is expressly set forth in La. Const. art. VI, § 17.
Local government zoning is authorized by the Louisiana legislature in La. R.S. 33: 4721, et seq. and La. R.S. 33: 4780.40, et seq. The UDC was enacted pursuant
to this authority. See UDC, Section 130- 1( b).
The ordinances relevant to this appeal are those governing TND -2 zoning.
See UDC, Section 130- 1509, et seq. The UDC states the " purpose" of a TND -2
Traditional Neighborhood Development Zoning District is " to encourage mixed-
use, compact development and facilitate the efficient use of services"; to diversify
and integrate land uses within close proximity to each other; and to provide for
the daily recreational and shopping needs of the residents." See UDC, Section
130- 1509. Other standards include walkability and proximity to existing or
proposed commercial and civic spaces. See UDC, Section 130- 1510( c), ( g), & ( i);
Section 130- 1512( c)( 2). Pertinently, Section 130- 1510 describes a " neighborhood
center area" as a key component of TND -2 developments and " the focal point of a
TND -2 district, containing retail, commercial, civic, and/ or public services to meet
the daily needs of community residents." UDC, Section 130- 1510( b) & ( c).
Section 130- 1510( c) further provides:
A neighborhood center is pedestrian -oriented, and it is designed to encourage pedestrian movement. A square may be located in a neighborhood center area. Retail and commercial uses should
generally be located adjacent to the square. The neighborhood center uses include retail shops, restaurants, offices, banks, hotels, post
offices, churches, centers, and office, governmental community attached residential dwellings.
Section 130- 1511 of the UDC, titled " TND -2 district definitions," identifies
three designations within the TND -2 framework. It states:
For purposes of this division only, the following definitions shall be observed and applied, except when the context clearly indicates otherwise.
Traditional neighborhood or traditional neighborhood
development means a compact, walkable, mixed- use neighborhood
where residential, commercial and civil buildings are within close proximity to each other as contemplated under this chapter.
E 1) TND -2 Concept. The designation of property for development as a traditional neighborhood development through the comprehensive
rezoning process or in accordance with the time limitations and procedures set forth in section 130- 1531.
2) TND -2 Planned. The designation for development as a traditional neighborhood development following approval of the general implementation plan.
3) TND -2. The redesignation of property for " TND Planned" on the official map, upon approval of a specific implementation plan and the final plat.
Section 130- 1518 of the UDC specifically relates to GIPs and provides:
Following the pre -application conference, the applicant shall submit a completed application ( general implementation plan) to the director of planning and development. When the director of planning and development determines the application to be complete, the application shall be sent to the commission for a public workshop session if deemed necessary by the director of planning and
development, followed at a later date by a public hearing. The general implementation plan shall contain all information required in the general implementation plan checklist, including architectural design guidelines as described in section 130- 15120).
1) Procedures for general implementation plan approval. All applications for traditional neighborhood developments shall be processed in the following manner:
a. The general implementation plan shall follow the procedures for approval of planning items before the planning commission and zoning cases before the zoning commission and the council which are not in conflict with this section.
b. At least 14 days prior to review and determination by the commissions, all abutting property owners shall be notified by regular mail of the traditional neighborhood development and given an opportunity to submit written comments. Notice shall also be published in the parish' s official journal at least ten days prior to the review.
c. Following required public notice, the commissions shall hold a public hearing on the proposed traditional neighborhood development. Following the hearing, the commissions shall review [ the] traditional neighborhood
development request and general implementation plan and any comments submitted by any adjoining property owners and shall make a recommendation to the council to approve, approve with conditions, or deny the general implementation plan. In its recommendation to the council, the commissions shall include the reasons for such recommendation.
2) Approval ofa general implementation plan.
10 a. After receiving the recommendation of the commissions, the council shall review the application, including the general implementation plan, the record of the commissions'
proceedings and the recommendation, and shall approve,
approve with conditions, or deny the application in accordance with the standards and purposes set forth in sections 130- 1509, 130- 1510 and 130- 1512. An approval with conditions shall not be considered final ( and the
rezoning is not final until such time) until the applicant submits a written acceptance of the conditions and all
necessary revisions to the general implementation plan to the council.
b. If approved by the council, the general implementation plan and all other information and material formally submitted with the application shall be adopted as an amendment to this development code and shall become the standards of development for the traditional neighborhood development. All future development shall conform to the standards
adopted for the traditional neighborhood development
regardless of changes in ownership.
c. Upon approval of the general implementation plan, the
property shall be designated " TND -2 Planned" on the
official zoning map.
Sections 130- 1530 and 130- 1531( a) of the UDC provide additional guidance
regarding TND -2 zoning.
Sec. 130- 1530. - Relation to zoning districts.
An approved traditional neighborhood development shall be considered to be a separate zoning district in which the development plan, as approved, establishes the restrictions and regulations
according to which development shall occur, and may depart from the normal procedures, standards, and other requirements of the other
sections of the zoning ordinance and subdivision regulations to the extent provided herein. Upon approval of the general implementation plan, the official zoning map will be changed to indicate the area as TND -2 Planned," or if final approval [ is] granted then as " TND -2."
Every approval of a traditional neighborhood development shall be considered an amendment to the zoning ordinance.
Sec. 130- 1531. - Comprehensive rezoning and subsequent designation procedure.
a) Any property designated as traditional neighborhood development as part of the comprehensive rezoning process shall be designated as TND -2 Concept," until said property has undergone the application
11 procedure and approval process as outlined in section 130- 1516, except that in such cases, the commission decision relative to the general implementation plan will be considered the final determination, subject to appeal to the parish council in accordance with section 130- 1528.
DISCUSSION
The crux of this appeal is whether the UDC ordinances governing the
approval or denial of TND -2 GIPs involve the exercise of discretion by STPG, and
if so, whether that discretion was exercised in a fair and legal manner. In order to
make this determination, we turn to the rules of general statutory construction.
Legislation is a solemn expression of legislative will. La. Civ. Code art. 2. When
a law is clear and unambiguous and its application does not lead to absurd
consequences, the law shall be applied as written and no further interpretation may
be made in search of the intent of the legislation. La. Civ. Code art. 9. In
examining a law, language, words, and phrases are to be read in their context and
to be accorded their generally prevailing meaning. La. Civ. Code art. 11; La. R. S.
1: 3; Lester v. BREC Foundation, 2022- 0514 ( La. App. 1st Cir. 11/ 4/ 22), 356
So. 3d 18, 24, writ denied, 2023- 00019 ( La. 3/ 7/ 23), 357 So. 3d 351. It is presumed
that every word, sentence, or provision was intended to serve some useful purpose,
that some effect is to be given to each such provision, and that no unnecessary
words or provisions were employed. As a result, courts are bound, if possible, to
give effect to all parts of a statute and to construe no sentence, clause, or word as
meaningless and surplusage if a construction giving force to, and preserving, all
words can legitimately be found. Lester, 356 So. 3d at 24.
A plain reading of UDC, Section 130- 1518 shows that an element of
discretion inheres in the Zoning Commission and the STP Council when deciding
whether to approve or deny GIPs. After a public hearing, the Zoning Commission
must review the TND -2 request and GIP as well as any comments submitted by
adjoining property owners and shall make a recommendation to the STP Council to
12 approve, approve with conditions, or deny the GIP. UDC, Section 130- 1518( 1)( c).
Section 130- 1518( 2)( b) of the UDC likewise gives the STP Council the option to
approve, approve with conditions, or deny the application in accordance with the
standards and purposes set forth in sections 130- 1509, 130- 1510 and 130- 1512" of
the UDC. Sections 130- 1509, 130- 1510, and 130- 1512 of the UDC state the
purpose" of a TND -2 Traditional Neighborhood Development Zoning District is
to encourage mixed-use, compact development and facilitate the efficient use of
services"; to diversify and integrate land uses within close proximity to each other;
and to provide for " the daily recreational and shopping needs of the residents."
See UDC, Section 130- 1509. Other standards outlined in Sections 130- 1510 and
1512 include walkability and proximity to existing or proposed commercial and
civic spaces. See UDC, Section 130- 1510( c), ( g), & ( i); Section 130- 1512( c)( 2).
As Honeybee alleged in its petition, the Zoning Staff Report suggested that
Honeybee increase the amount of land proposed for commercial and civic uses
because the proposed 10, 000 square feet of commercial space would not meet the
daily needs of residents and would not accomplish the purpose of the TND -2
ordinances. Therefore, Honeybee' s GIP did not meet the purposes of a TND -2 set
forth in the UDC and was denied.
Further, Honeybee' s interpretation of Section 130- 1518 suggests that, upon
completeness, the GIP should be approved as a matter of law. However, the
introductory paragraph of UDC, Section 130- 1518 states that it is the director of
the Department who must review the GIP for completeness, and only then is the
GIP presented to the Zoning Commission and/ or STP Council.' Under Honeybee' s
6 Honeybee asserts that land use regulations must contain uniform and objective requirements and are unconstitutional to the extent they afford municipal bodies and/or governmental actors with discretion in their applications. The pertinent sections of the UDC do not specify the percentage of land that must be dedicated to commercial space. These sections also give the STP Council the discretion to determine whether to approve a GIP in accordance with the " standards and purposes" for a TND -2 development set forth in the UDC. Honeybee has not asserted a constitutional challenge to the pertinent sections of the UDC, and the issue before us is limited to
13 reading of Section 130- 1518, the requirements of a public hearing and review by
the Zoning Commission and the STP Council would be an exercise in futility, and,
thus, this requirement would be meaningless.' For these reasons, we find GIP
approval per UDC, Section 130- 1518 is a discretionary act not generally subject to
writ of mandamus.
Still, a public officer' s discretion must be exercised in a fair and legal
manner and not arbitrarily, and a writ of mandamus may issue to correct arbitrary
and capricious actions of public officials. See Great Lakes Dredge & Dock Co.,
LLC v. State ex rel. Coastal Protection & Restoration Authority, 2014- 0249
La. App. 1st Cir. 11/ 7/ 14), 167 So. 3d 682, 686. Thus, we must consider whether
Honeybee sufficiently pled a cause of action for mandamus due to improper and
arbitrary exercise of discretion by STPG.
Honeybee alleged in its petition that the denial of its GIP concerns a " use by
right" of its land. As such, Honeybee maintained that an application for approval
of a development plan in conformity with all zoning and use requirements is 8 presumptively valid and approved. , According to Honeybee, denial of its GIP
denies Honeybee the right to use its land in accordance with validly enacted zoning
whether Honeybee' s petition stated a cause of action for mandamus. Therefore, we find Honeybee' s arguments concerning constitutional requirements are misplaced. 7 Honeybee argues STPG' s interpretation of the relevant ordinances would strip Honeybee of any use of its property as a matter of right. If a statute is susceptible of two constructions, one of which would render it unconstitutional, or raise grave constitutional questions, the court should adopt the interpretation of the statute which, without doing violence to its language, will maintain its constitutionality. City of New Orleans v. Louisiana Assessors' Retirement & Relief Fund, 2005- 2548 ( La. 10/ 1/ 07), 986 So. 2d 1, 12- 13, on reh' g ( Jan. 7, 2008). Honeybee asserts that STPG' s reading of the ordinance is unconstitutional and therefore cannot be a viable interpretation. However, Honeybee negates this argument by repeatedly stating in its briefing to this court and to the trial court that it is not contesting the constitutionality of the UDC ordinances on TND -2 developments. Since appellate courts may not address issues raised for the first time on appeal, see MedImpact Healthcare Systems, Inc. v. Division of Administration, 2021- 1367 ( La. App. Ist Cir. 6/ 3/ 22), 343 So. 3d 705, 714, we decline to address this argument. 8 Whenever a property owner seeks to use his or her land in compliance with the applicable zoning, requiring no variances or special uses, and conforming to every modification imposed by law, that property owner is seeking to exercise his or her " use by right." See Zachary Housing Partners, L.L.C. v. City of Zachary, 2012- 1952 ( La. App. 1st Cir. 10/ 10/ 13), 185 So. 3d 1, 7, writ denied, 2013- 2615 ( La. 2/ 7/ 14), 131 So. 3d 864. In a situation when a landowner seeks a use by right, the use by right should be presumptively valid and approved. Id. at 8.
14 ordinances. Therefore, Honeybee asserted STPG' s denial of its GIP was arbitrary
and capricious because it was not based upon issues related to public safety, health,
or general welfare.
Honeybee argues that the denial of its " use by right" is a basis for finding
STPG acted arbitrarily and capriciously in denying its GIP; however, we find this
argument is simply another basis on which Honeybee asserts STPG did not have
discretion to deny its GIP. Honeybee relies on a case from this court, Zachary
Housing Partners, L.L.C. v. City of Zachary, 2012- 1952 ( La. App. 1st Cir.
10/ 10/ 13), 185 So. 3d 1, 7, writ denied, 2013- 2615 ( La. 2/ 7/ 14), 131 So. 3d 864,
which we find distinguishable. In Zachary Housing Partners, the plaintiff sought
to construct an apartment complex on a tract of land within the city limits of
Zachary. Id. at 3. The property was zoned as Residential/ Urban and
Residential/ Estate, which allowed for the development of a residential complex
such as the one proposed by the plaintiff. In accordance with the City' s UDC, the
plaintiff submitted applications for site plan review and resubdivision. At a pre -
application conference, the plaintiff was advised that the City' s comprehensive
master plan and future land use plan map designated the future land use of the
property as Agricultural and Forestry. Nevertheless, the City accepted the
plaintiff' s applications and proceeded with the development process. At the
conclusion of a public hearing before the Zachary Planning Commission, the
Commission voted to approve the plaintiff' s applications with conditions. Id.
Thereafter, the plaintiff' s applications were set for public hearing before the
Zachary City Council. Id. at 4. The City Council voted to deny the plaintiff' s plan
application and resubdivision application based on its incompatibility with the
designated future planned use of the property. Id.
Following the denial of its applications, the plaintiff filed a petition for
mandamus, declaratory judgment, and other relief. Id. At the trial on the writ of
15 mandamus, the City stipulated that the sole articulated reason for the denial of the
plaintiff' s applications was " incompatibility" with the City' s master plan for the
future use of the property. Id. at 6- 7. The trial court ultimately ruled in favor of
the plaintiff, made the writ of mandamus peremptory, and ordered the Zachary
City Council to approve the site plan and resubdivision applications. Id. at 4. This
court affirmed. Id. at 8.
Zachary Housing Partners is distinguishable because, therein, the City
stipulated that " the sole articulated reason for the denial of [ the plaintiff' s]
applications was ` incompatibility' with the City' s Master Plan," i.e., the land' s
future zoning designation. Id. at 6- 7. In other words, there was no dispute that the
applications complied with the applicable zoning ordinances and conformed to
every modification imposed and approved by the City' s Planning Commission.
See Id. at 8. In contrast, according to Honeybee' s petition, the Zoning Staff
Report provided reasons why Honeybee' s GIP was not compliant with the
applicable zoning ordinances, including that the amount of proposed commercial
space was insufficient to meet the daily needs of its residents, which is an
explicitly stated purpose of a TND -2 development in the UDC. As articulated in
Zachary Housing Partners, a use by right requires compliance with zoning
ordinances and conformity to every modification imposed and approved by the
planning and zoning commissions. See Id. at 7. Absent an allegation that STPG
denied Honeybee' s GIP despite incorporating the modifications suggested by
STPG, it cannot be said that STPG denied Honeybee a " use by right" of its land.
For the above reasons, we find Honeybee did not sufficiently plead a cause of
action for mandamus ordering STPG to approve its GIP.
Honeybee' s petition for issuance of a writ of mandamus also sought to
compel the Zoning Commission and/ or the STP Council to provide reasons for
their denial of its GIP. The UDC states the Zoning Commission shall make a
16 recommendation to the STP Council to approve, approve with conditions, or deny
the GIP, and the recommendation shall include the reasons for such
recommendation. UDC, Section 130- 1518( 1)( c). However, there is no
requirement in the ordinances that the reasons be supplied in writing or any other
specific format. Additionally, the UDC requires only that, "[ i] n its
recommendation to the council, the commissions shall include the reasons for such
recommendation." UDC, Section 130- 1518( 1)( c). The UDC does not impose a
ministerial duty upon STPG, through the Zoning Commission or the STP Council,
to provide an applicant, like Honeybee, with reasons for its recommendation or
action on the GIP. As such, we also find no cause of action for mandamus
ordering STPG to provide reasons for its denial of Honeybee' s GIP and therefore
affirm the trial court' s judgment sustaining STPG' s exception of no cause of
action.'
Louisiana Code of Civil Procedure Article 934 provides, " When the grounds
of the objection pleaded by the peremptory exception may be removed by
amendment of the petition, the judgment sustaining the exception shall order such
amendment within the delay allowed by the court." Honeybee did not request the
opportunity to amend either at this court or the trial court. Therefore, the issue is
waived. See Martin v. Board of Adjustment Through Chairman, 2023- 0658
La. App. 1st Cir. 2/ 23/ 24), So. 3d , , 2024 WL 741590, * 4 n.9, citing
Stolzle v. Clayton, 2018- 1641 ( La. App. 1st Cir. 7/ 11/ 19), 280 So. 3d 1240, 1244,
writ denied, 2019- 01745 ( La. 1/ 14/ 20), 291 So. 3d 679.
CONCLUSION
For the foregoing reasons, the judgment of the trial court that sustained the
peremptory exception raising to objection of no cause of action filed by
9 Because we affirm the trial court' s dismissal of Honeybee' s petition, we pretermit discussion pertaining to STPG' s exceptions of improper use of summary proceedings and improper cumulation. These exceptions are rendered moot.
17 Defendant/Appellee, St. Tammany Parish Government, and dismissed the lawsuit
filed by Honeybee Holdings, LLC with prejudice is affirmed. All costs of this
appeal are assessed to Plaintiff/Appellant, Honeybee Holdings, LLC.
AFFIRMED.
18 i f Ir, • !
i
STATE OF LOUISIANA
ST. TAMMANY PARISH ZONING COMMISSION AND ST. TAMMANY PARISH GOVERNMENT
GREENE, J... concurring.
I agree with the result of the majority opinion. I write separately, however, to
note my disagreement with the opinion' s footnote 7, wherein the majority states that
Honeybee is raising the constitutionality of STPG's interpretation of certain ordinances for
the " first time" on appeal.