Town of Broussard v. Ducrest

722 So. 2d 1174, 98 La.App. 3 Cir. 838, 1998 La. App. LEXIS 3601, 1998 WL 857848
CourtLouisiana Court of Appeal
DecidedDecember 9, 1998
DocketNo. 98-838
StatusPublished
Cited by4 cases

This text of 722 So. 2d 1174 (Town of Broussard v. Ducrest) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Town of Broussard v. Ducrest, 722 So. 2d 1174, 98 La.App. 3 Cir. 838, 1998 La. App. LEXIS 3601, 1998 WL 857848 (La. Ct. App. 1998).

Opinions

JWOODARD, Judge.

This is an expropriation suit, instituted by the Town of Broussard, to acquire the right of way of a strip of land running along the northern border of the defendants’ property. The defendants appeal the trial court’s finding that the Town of Broussard’s decision to expropriate their property was not arbitrary, capricious, or unnecessary. We affirm.

FACTS

Marian Louise Ducrest, Frances Marie Ducrest, Thomas Lucien Ducrest, III, Irene Eve Ducrest Hesse and Ceeile Marie Ducrest Chapman (the Duerests) own a rectangular tract of land in Broussard, Louisiana. The tract of land is bordered on the west side by South Morgan Street and by other tracts of property on the east, north, and south side. The Duerests’ property is largely undeveloped except for that portion kwhich fronts South Morgan Street and which consists of gardens and a home owned and occupied by Marian Louise Ducrest.

In the fall of 1995, pursuant to a plan to extend the La Neuville Roadway located between Louisiana Highway 89 and United States Highway 90, the Town of Broussard proposed to expropriate a strip of land which runs the entire length of the northern border of the Duerests’ property. The Town of Broussard first adopted the project at a regularly scheduled meeting, after legal notice to the public by ordinance No. 167, dated November 12,1996.

The Professional Engineering and Surveying Co., Inc., (Pensco) and its civil engineer responsible for the project, Albert L. Reaux, performed the actual surveying and engineering work. Mayor Charles E. Langlinais (Mayor Langlinais) of the Town of Broussard provided Pensco with some guidelines to consider in designing the roadway. Essentially, Mayor Langlinais asked Pensco to look into constructing the roadway into the original Ambassador Caffery Parkway, a roadway which had been previously proposed for construction.

Among other tracts of land, Pensco’s survey recommended acquisition by the Town of Broussard of a strip of land running along the northern border of the Duerests’ property. Subsequently, the Town of Broussard attempted to negotiate with the Duerests the purchase of the northern strip bordering their property. The negotiations failed because the Duerests vehemently objected to the location of the right of way. Consequently, the Town of Broussard filed a petition for expropriation on April 30,1997, seeking judgment declaring the proposed portion of the Duerest’s property expropriated.

In a bench trial held on August 26, 1997 and a judgment rendered on September 12, 1997, the trial court found the road improvement project to be one of public necessity and decided that the Town of Broussard had the right to expropriate the Duerests’ strip of land running along the northern border of their property. The Duerests filed a devolu-tive appeal on September 30,1997.

LAW

Essentially, the Duerests contend that the Town of Broussard’s selection of the roadway’s site as it runs through their property is arbitrary, capricious, and unnecessary.

[¡It is well settled that every person has the right to acquire, own, control, use, [1176]*1176enjoy, protect, and dispose of private property. Nevertheless, such right is held subject to the right of expropriation, when required by public interest and necessity. La. Const, art. I, § 4. The right of a municipal corporation to expropriate is set forth by La.R.S. 19:102:

Where a price cannot be agreed upon with the owner, any municipal corporation of Louisiana may expropriate property whenever such a course is determined to be necessary for the public interest by the governing authority of the municipality.

Once a municipality has decided that the expropriation of a landowner’s property is necessary for the public interest, a court may not set aside such a determination absent finding that the "decision was unreasonable or arbitrary. City of Lafayette v. Delhomme Funeral Home, Inc., 413 So.2d 348 (La.App. 3 Cir.1982).

The assessment of the location and extent of the expropriation relate to the issue of the necessity of a taking. State, Dep’t of Transp. & Dev. v. Estate of Griffin, 95-1464 (La.App. 1 Cir. 2/23/96), 669 So.2d 566. Although the expropriating authority has great discretion in determining the extent and location of the property to be taken, such discretion is not unbridled. Furthermore, “Expropriation is special and exceptional in character, in derogation of common right, and must be strictly construed.” Estate of Griffin, 669 So.2d at 568.

Generally, once an expropriating authority has met its burden of proving that a public interest justifies the expropriation, the burden shifts to the defendant to show that the expropriating authority abused its discretion in selecting the site to be expropriated. See Recreation & Park Com’n for Parish of East Baton Rouge v. C & S Dev., Inc., 97-2652 (La.7/8/98), 714 So.2d 706. The expropriating authority abuses its discretion when it acts in bad faith, without adequate determining principles, or without reason. Id.

While deciding whether or not to expropriate, the expropriating authority should consider the following criteria: “[Ajvailability of alternate sites, costs, environmental factors, long-range area planning, and safety considerations.” Id. at 707-708, quoting Red River Waterway Com’n v. Fredericks, 566 So.2d 79, 83 (La.1990). An expropriating authority abuses its discretion when the defendant shows that it acted without ^considering and weighing the relevant criteria. Recreation & Park Com’n for Parish of East Baton Rouge v. C & S Development, Inc., 714 So.2d 706; Red River Waterway Com’n, 566 So.2d 79.

Nevertheless, the mere availability of an alternative feasible location is not, by itself, an indication that the expropriator has acted arbitrarily or capriciously in making its selection. Calcasieu-Cameron Hosp. Serv. Dist. v. Fontenot, 628 So.2d 75 (La.App. 3 Cir.1993); writ denied, 94-168 (La.3/18/94), 634 So.2d 854. Whether or not the defendant has met its burden of proof requires the trial court to make a factual determination, which we will not disturb absent manifest or clear error. Id.

In the instant case, the Ducrests urge that they met their burden of proof under the conditions set forth by the supreme court in Red River Waterway Comm’n. They argue that the Town of Broussard’s decision is not supported by an adequate determining principle which justifies expropriating their exquisitely developed home site as opposed to an undeveloped adjacent property owned by Helen St. Julien Weimer and that their home site features the only permanent home site expropriated because of the roadway. They further assert that the proposed taking of such a large portion of their permanent home site is unnecessary because an alternative route passing through Weimer’s undeveloped property is feasible and does not disturb anyone. Finally, they maintain that Mayor Langlinais and Pensco failed to bring forward any evidence justifying the expropriation during the course of pre-trial discovery and hastily made up a last minute explanation during trial.

We disagree. After thoroughly reviewing the record, we find that the arguments presented by the Ducrests lack merit.

The city Ordinance No. 167 regarding the La Neuville Roadway provides in relevant part:

[1177]

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Bluebook (online)
722 So. 2d 1174, 98 La.App. 3 Cir. 838, 1998 La. App. LEXIS 3601, 1998 WL 857848, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-broussard-v-ducrest-lactapp-1998.