YOLANDE SCHEXNAYDER & SON, INC. NO. 21-CA-416
VERSUS FIFTH CIRCUIT
PARISH OF ST. JAMES COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT PARISH OF ST. JAMES, STATE OF LOUISIANA NO. 40,298, DIVISION "E" HONORABLE ALVIN TURNER, JR., JUDGE PRESIDING
March 09, 2022
FREDERICKA HOMBERG WICKER JUDGE
Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and John J. Molaison, Jr.
REVERSED FHW JJM
JOHNSON,J., CONCURS WITH REASONS MEJ COUNSEL FOR DEFENDANT/APPELLANT, ST. JAMES PARISH Victor J. Franckiewicz, Jr. W. Peter Connick, Jr.
COUNSEL FOR INTERVENOR/APPELLEE, ST. JAMES CONSTRUCTION MATERIALS, LLC Robert J. Stefani, Jr. Patrick T. Isacks WICKER, J.
This litigation arises out of a land use dispute involving a large, 371-acre
tract of land in St. James Parish referred to as the “Big Shake Pit.” St. James
Parish seeks review of the trial court’s April 7, 2021 granting of a preliminary
injunction, enjoining St. James Parish from requiring “prior approval” to
“excavate, sell and deliver up to 9 million cubic yards of clay material for U.S.
Army Corps of Engineer levee projects or for the use of any necessary utilities or
equipment, including electrical or water services” and, further, enjoining it from
taking any action to prevent such use, including the refusal to issue permits. The
landowner contends that the operation of a borrow pit and the related excavation
on the property is a permitted “nonconforming use” as defined in the Parish’s Land
Use Plan (St. James Parish, LA, Code of Ordinances, § 82-25 (2014)) and thus is
permissible on the property now designated for agricultural and residential use.
Upon our review, we find that the Parish’s Land Use Plan and pertinent law
instructs that the preliminary factual determination as to whether the property at
issue meets the definition of a nonconformity under the Parish ordinance falls
within the jurisdiction and purview of the local governing authority, St. James
Parish. We further find that the trial judge abused his discretion in issuing a
preliminary injunction in this matter where the petitioning party failed to prove that
the injunction would serve to maintain the status quo between the parties. For the
following reasons, we reverse the trial court’s April 7, 2021 judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On February 9, 2021, Yolande Schexnayder & Son, Inc. (YSS) filed a
“Petition for Declaratory Judgment, Injunctive Relief, and Damages and
Application for Preliminary Judgment” in the Twenty-Third Judicial District Court
for the Parish of St. James. In its Petition, YSS asserted that “[t]his dispute arises
out of St. James Parish's unjustified refusal to issue permits for electrical, water, or
21-CA-416 1 any other utilities or work on the Property.” YSS sought a judgment declaring that
the property at issue “enjoys the status of a legal nonconforming use and that such
use can lawfully continue without the need for approval of the planning
commission or Parish Council of the Parish of St. James.” YSS further sought
damages for the “Parish’s refusal to acknowledge and recognize such status of the
Property as required by law.” Additionally, YSS prayed for injunctive relief under
La. C.C.P. art. 3601 “to permit reasonable and continued use and operation of the
Property as a commercial borrow pit consistent with its past use and operation as
such pending a final trial on the merits to prevent immediate and irreparable harm
to YSS.”
On March 8, 2021, St. James Construction Materials, LLC (SJCM) filed a
Petition for Intervention, claiming that it is the owner of the property at issue and
thus has a justiciable interest in the proceedings. SJCM asserted that its interests
are aligned with YSS and further sought similar declaratory and injunctive relief in
its petition, including relief to enjoin the Parish from prohibiting SJCM to
“excavate, sell and deliver up to 9 million cubic yards of clay material for U.S.
Army Corps of Engineer levee projects or for the use of any necessary utilities or
equipment, including electrical or water services.”1
On March 23, 2021, the trial court conducted a hearing on the preliminary
injunction. At the hearing, various witnesses testified concerning the operation of
“Big Shake Pit” as a borrow pit during various time periods.
Jay Thomas, a representative with Louisiana Earth Corporation (LEC),
testified that following Hurricane Katrina, LEC learned of opportunities related to
rebuilding the levee system from Plaquemines Parish to Saint James Parish. LEC
1 On March 22, 2021, the Parish filed an exception of no right of action, asserting that YSS has no right of action to bring suit because it sold the property at issue in December 2020. The record reflects that hearing was set for June 1, 2021, but the judgment on that exception is not in the record nor is it before this Court.
21-CA-416 2 and YSS entered into an agreement that LEC would have the right to dig for heavy
clay material on the property, with YSS reserving the right to the topsoil material,
to sell for use in the post-Katrina U.S. Army Corps of Engineers Project. To be
able to contract for the levee project, LEC took on a costly process of obtaining
certification for the clay material to be certified for use with a U.S. Army Corps of
Engineers levee project. He further testified that such levee construction projects
are “long-term” in nature, requiring a $690,000.00 investment to obtain
certification and a long-term bidding process. He testified that the actual digging
for the post-Katrina levee project did not occur until approximately 2011. He
testified that digging occurred for that project in the northwest quadrant of the
property, which resulted in holes or “cells” on the property.
Mr. Thomas testified that when SJCM purchased the property in 2020,
SJCM required, as a part of the purchase, that LEC obtain paperwork for the West
Lakeshore Lake Pontchartrain Levee Project. He testified that LEC began
preparing the property for the West Lakeshore Project in 2011, when they
discovered that the project would be “coming down the line.” He testified that an
LEC representative has attended the Pontchartrain Levee District Meetings, with a
YSS representative present, since that approximate 2011-2012 time frame. The
West Lakeshore Project was very close in proximity to the Big Shake Pit property,
which made the project more lucrative with lower costs to transport the clay.
Mr. Thomas testified that between 2007 and 2012 or 2013, he was
physically present at the property approximately three times per week. He testified
that during that time he regularly observed people digging at the property.
Thereafter, during the time period from 2013 to 2020, he testified that he, on
average, visited the property bimonthly or quarterly. His attorney would conduct
site maintenance inspections or drive by the property almost every weekend, on his
way to his fishing camp. He testified that there was never a six-month period
21-CA-416 3 between 2013 and 2020 when he did not visit the property and observe “digging or
maintenance work” of some kind being performed on the property. Mr. Thomas
explained that the property has a large sign labeled “Big Shake Property” with his
contact information and that although the property is also used as a sugarcane field,
that use is not to the exclusion of the property’s primary use as a commercial
borrow pit.
Mr. Thomas testified to his understanding that Quiver Construction, owned
and operated by Bryan Schexnayder, had an agreement with YSS that Quiver
would be able to mine the surface material or topsoil, which is required to first be
removed before one can dig for and reach the heavy clay material underground.
However, Mr. Thomas also testified unequivocally that no clay mining of any
heavy clay material took place in the years 2014 through 2020.
Mr. Thomas also testified to the fact that SJMC’s reputation and business
would suffer irreparable harm if they were not permitted to participate in the West
Lakeshore Project. He also acknowledged, however, that LEC did not maintain a
St. James Parish business operating license until the year 2020 and that LEC
contracted with a third-party to operate the pit in 2011-2012 when heavy clay
mining took place.
Stephen Cali, a civil engineer contractor, testified that he has been an
engineer and advisor on the Big Shake Pit property since 2008. He testified that he
continuously monitors the Corps of Engineers’ procurements for dirt, markets Big
Shake Pit to contractors and engineers he knows in the business, and ensures that
all paperwork and permits are up to date. Mr. Cali testified that, after the post-
Katrina levee project was completed in 2013, “there was a lull” in large projects on
the property. Mr. Cali testified that he was aware of the West Lakeshore Project
and he was “constantly monitoring it” and always keeping the property in a “state
of readiness,” meaning keeping the roads maintained and the land clear. He
21-CA-416 4 testified that the funding for the Corps of Engineers to move forward with the West
Lakeshore project was not approved until 2017-2018.
At the preliminary injunction hearing, the Parish introduced into evidence
the affidavit of Glenn Waguespack, the St. James Tax Assessor, who attested that
the property at issue was assessed for “Use Value.” Mr. Waguespack attested that
for the years 2010-2012, the property was designated as Use Value, either
agricultural or marsh land. For the years 2013-2021, with the exception of 55
acres classified as batture lands, the entirety of the property was designated as Use
Value, either as agricultural or timber use. He further attested that a property
owner is required to notify the St. James Assessor Office if a property no longer
qualifies for a designated use for tax purposes. He attested that his search reflects
that no notification has ever been filed to change the designation for tax purposes
of the Big Shake property.
Laddie Rousell testified that he has lived next to the Big Shake Pit since
2005. He testified that he recalls clay mining taking place in approximately 2010
and 2011. He testified that the “cells” or holes in the northwest quadrant of the
property were filled with water and vegetation by 2012, and that all of the mining
equipment was removed from the property by that time. Mr. Rousell testified that
he observed two people with Quiver Construction digging for topsoil in late 2014
into early 2015 and specified that he has not seen any digging for topsoil or any
clay materials in 2020.2
Mr. Rousell testified that he developed a subdivision nearby, which took
place in three separate phases. He testified that he was aware of the St. James
Parish new Land Use Plan, and that such plan factored into his decision to move
2 SJCM introduced into evidence the affidavit of Bryan Schexnayder with Quiver Construction, who attested that Quiver continuously mined for topsoil on the property from 2013 to the date of the sale of the property in December 2020. He testified that the activity was continuous but contingent on the demand for soil and various weather conditions.
21-CA-416 5 forward with a residential subdivision in that area. He testified that he was
required to obtain permitting for each phase and that his most recent subdivision is
adjacent to the property at issue and is a small seven-lot family subdivision with a
children’s playground or playset area incorporated into the subdivision.
At the conclusion of the hearing, the trial judge took the matter under
advisement. On April 7, 2021, the trial judge issued a judgment, granting SJCM’s
application for preliminary injunction and enjoining St. James Parish from
requiring “prior approval” for the “entirety of the 371-acre property” to “excavate,
sell and deliver up to 9 million cubic yards of clay material for U.S. Army Corps of
Engineers levee projects or for the use of any necessary utilities or equipment,
including electrical or water services, backhoes, bulldozers/graders,
dragline/excavators, both tracked or wheeled vehicles, scales, trailers or fuel tanks
in connection with such use…” and, further, enjoining it from taking any action to
prevent such use, including the refusal to issue permits. The trial judge issued
written reasons finding that “from 2013 until the sale of the property to SJCM
there was continuous mining and sale of surface clay material, sometimes referred
to as topsoil, as well as other site maintenance activities.” The trial judge found
that the activities were continuous and thereafter were never abandoned, ceased, or
interrupted for any period longer than six months. The trial court thus found that
the property was used as a borrow pit prior to the enactment of the Land Use Plan
at issue and, thus, was a nonconforming use “grandfathered in” and that any use in
connection with excavation or operating the land as a borrow pit would not require
prior Parish approval.
The trial judge considered the language of the land use ordinance at issue
and found that a property that qualified as a nonconforming use under subsection
(k) of the ordinance does not require Parish approval for any use, including
addition of utilities such as water or electrical or addition of structures such as
21-CA-416 6 trailers or fuel tanks. The trial judge found that because a borrow pit is a unique
property with a limited “capacity” for heavy clay material, such additions did not
increase the “capacity” of the property as referenced in the ordinance and, thus,
prior Parish approval was not required.
The Parish appealed the trial court’s April 7, 2021 preliminary injunction.
On appeal, the Parish first contends that the trial court erred in finding that SJCM
proved continuous “physical use” of the land as a borrow pit consistent with
excavation and mining with no interruption of such activity for any six-month
period. Second, the Parish contends that the trial court misinterpreted subsection
(k) of the applicable St. James Parish ordinance defining a non-conforming use and
improperly determined that the nonconformity subsection serves as a blanket
exemption from other provisions of the ordinance requiring prior Parish approval
for certain uses. Finally, the Parish contends that the trial court impermissibly
substituted its judgment for that of the Parish, where the law commits land use
regulation first to the province of local government.
For the following reasons, we find that the Parish’s assignment of error
concerning interpretation of the Parish ordinance has merit and we find that, under
the facts of this case, SJCM must first seek Parish approval for the use or actions it
sought approval for in its application for preliminary injunction. Consequently,
because the judgment appealed specifically finds that prior Parish approval is
unnecessary and further enjoins the Parish from considering whether the property
at issue is a nonconformity under the ordinance, we reverse the trial court’s April
7, 2021 judgment.
DISCUSSION
On appeal, the Parish contends that the trial court misinterpreted Section 82-
25(k) within the Parish’s Land Use Plan, titled “Nonconformities,” to hold that any
nonconforming use under the ordinance does not require prior Parish approval
21-CA-416 7 when required under other subsections of the ordinance.3 The Parish argues that
the trial court’s interpretation of the ordinance results in “a blanket exemption” for
nonconformities to engage in any activity or use, including connection of utilities
and addition of structures previously not existing, without Parish approval when
generally required under the ordinance’s other provisions.
For the following reasons, we find that, in addition to circumstances when
the use at issue may be considered an “expanded use” under subsection (k), the
Parish ordinance sets forth that prior parish approval through the permit process is
required for any use, whether a conforming or nonconforming use, if a land is large
enough (more than 3 acres) or if the use is impactful enough (requiring state or
federal permits) under subsection (f) of the ordinance. Further, we find that
subsection (k)(6)—which requires a landowner seeking to maintain a
nonconforming use status on a property to file an annual report with the Parish—
reflects the Parish’s intent to require at least an annual review of the property’s use
to ensure that its current use still meets the definition of a nonconformity under the
Land Use Plan. We further find this provision reflects generally the Parish’s intent
in its Land Use Plan to exercise its power to enforce the plan and to make the
preliminary factual determination as to whether a parish property is entitled to
nonconforming use status.
The general authority for local government to regulate land use is conferred
by La. Const. Art. 6, § 17, which provides in part:
Subject to uniform procedures established by law, a local governmental subdivision may (1) adopt regulations for land use, zoning, and historic preservation, which authority is declared to be a public purpose; (2) create commissions and districts to implement those regulations; (3) review decisions of any such commission; and (4) adopt standards for use, construction, demolition, and modification of areas and structures.
3 Because we find that this assignment of error has merit requiring reversal of the trial court judgment and renders moot the remaining assignment of error, we address the Parish’s assignment of error concerning interpretation of the ordinance and pretermit discussion of the remaining assignments of error.
21-CA-416 8 K.G.T. Holdings, LLC v. Par. of Jefferson, 14-872 (La. App. 5 Cir. 3/25/15), 169
So. 3d 628, 631, writ denied, 15-0810 (La. 6/19/15), 172 So.3d 652.
Land use is subject to the police power of various governing bodies, and the
courts will not interfere with the decisions of these bodies unless it is clear that
their action is without any relation to the public health, safety, or general
welfare. Id; see also Garber v. City of New Orleans Through City Plan. Comm'n,
16-1298 (La. App. 4 Cir. 12/13/17), 234 So.3d 992, 996–97, writ denied sub
nom. Garber v. City of New Orleans, 18-0351 (La. 4/20/18), 240 So.3d 924;
Palermo Land Co., Inc. v. Planning Com'n of Calcasieu Parish, 561 So.2d 482,
491 (La. 1990).
The proper interpretation of the language of a statute or Parish ordinance is a
question of law requiring de novo review. City of Gretna v. Morice, 14-301 (La.
App. 5 Cir. 12/30/14), 167 So.3d 823, 827; see also Normand v. 1st Lake Realty,
Inc., 12-797 (La. App. 5 Cir. 5/23/13), 119 So.3d 610, 613, writ denied, 2013-1482
(La. 10/4/13), 122 So.3d 1020. The statutory and jurisprudential rules for statutory
construction and interpretation apply equally well to ordinances, rules, and
regulations. Landry v. E. Baton Rouge Par. Sheriff's Off., 14-0733 (La. App. 1 Cir.
3/9/15), writ granted, 15-681 (La. 6/30/15), 168 So.3d 378.
When a statute is clear and unambiguous and the application of
the statute does not lead to absurd consequences, the statute must be applied as
written. Smith v. St. Charles Par. Pub. Sch., 17-475 (La. App. 5 Cir. 5/1/18), 246
So.3d 821, 826, writ denied, 18-1001 (La. 10/8/18), 253 So.3d 802. However,
where a literal interpretation would produce absurd consequences, the statute must
be construed so as to produce a reasonable result. O'Brien v. Shepley, 451 So.2d
82, 84 (La. Ct. App. 5th Cir. 1984).
Moreover, where it is possible, courts have a duty in the interpretation of a
law to adopt a construction which harmonizes and reconciles it with other
21-CA-416 9 provisions dealing with the same subject matter. Par. of Jefferson v. Kennedy, 09-
145 (La. App. 5 Cir. 10/27/09), 28 So.3d 301, 303. “All laws pertaining to the
same subject matter must be interpreted in para materia.” Acurio v. Acurio, 2016-
1395 (La. 5/3/17), 224 So. 3d 935, 938, quoting Pierce Foundations, Inc. v. Jaroy
Construction, Inc., 15-785 (La. 5/3/16), 190 So.3d 298, 303. When interpreting the
law, the starting point is the language of the written law itself. Dejoie v. Medley,
08-2223 (La. 5/5/09), 9 So.3d 826, 829.
The ordinance at issue is a part of the Parish’s Land Use Plan, St. James
Parish, LA, Code of Ordinances, § 82-85. Subsection (b) of the ordinance provides
that the Land Use Plan is a “master plan” as that term is used in R.S. 33:109 and
33:109.1 and further that it is “the intention of the parish that all local, regional,
state, and federal entities operating in or making decisions affecting property in the
parish comply with the land use plan to the maximum extent allowable under law.”
Subsection (d) of the ordinance concerns allowable uses as set forth in the Land
Use Plan and provides that such allowable uses “shall be permitted as a matter of
course through the parish’s customary building permit process under chapter 18,
subject to compliance with other applicable ordinance requirements, and except as
otherwise provided in this section.”
Subsection (f), in pertinent part, provides:
Notwithstanding subsection (d) of this section [concerning allowable uses], the following uses or activities shall not be issued a building permit until approved by the planning commission (or by the parish council on appeal):
(1) Any residential building containing three or more dwelling units. (2) Any nonresidential development exceeding 10,000 square feet of building area or sites three acres or more. (3) Any commercial or industrial development that requires a state or federal permit for air, water, solid waste, hazardous materials, or section 404 Wetland/Rivers and Harbors Act permits.
21-CA-416 10 The planning commission shall act on the proposal under this subsection, and such decision shall be final unless it is appealed. Any person aggrieved by the planning commission’s decision under this subsection may appeal to the parish council in writing within 30 days of the planning commission’s decision. The parish council shall take up the appeal as soon as is practical following the written notice of appeal to the parish council, and shall do so in accordance with the requirement of the state Open Meetings Law, R.S. 42:11 et seq. The parish council, in its discretion, may consider the appeal on the basis of the written record of the matter, or may convene a hearing concerning the appeal.
The following subsection (subsection (g)) in part provides that even “[u]ses
or activities that do not require action by the planning commission (including those
covered by section 18-38(1)) shall be applied for and considered through the
parish’s building permit process under chapter 18.” (emphasis added).
Subsection (k) titled, “Nonconformities” provides:
(k) Nonconformities.
(1) Description. A use of land existing as of the effective date of the ordinance from which this section is derived and which would not constitute an allowable use under subsection (c) of this section shall be considered a nonconformity. (2) Intention. It is the intention of this section to allow nonconformities to continue until they are voluntarily closed or removed, but not to encourage their survival or expansion. (3) Maintenance, safety, and environmental protection. It is also the intention of this section to allow nonconformities to perform routine maintenance, and to allow improvements limited to improving safety conditions and environmental protection without being treated as a new use under this section. (4) Loss of nonconforming status. A nonconformity that discontinues operation or use for more than six continuous months shall lose its status as a nonconformity, and shall thereafter be treated as a new use subject to the provisions of this section. Failure to maintain a reasonable level of employment compatible with the historic operation of a nonconformity shall be deemed to be a discontinuation of operations. The mere presence of security personnel at a nonconformity shall not be deemed to be a continuation of operations. The burden of proving that a nonconformity is continuing or has continued operations shall be borne by the owner, operator, or similarly situated person responsible for the nonconformity. (5) Expansions. Any expansion of capacity or enlargement of physical facilities that would support the future expansion of capacity shall be considered as a new use subject to the provisions of this section. (6) Reporting. For a nonconformity to retain its status as such, the owner, operator, or similarly situated person responsible for the nonconformity must timely submit an annual Tier 2 report pursuant to
21-CA-416 11 the Right-to-Know Law (R.S. 30:2361 et seq .). Submission of this report to the parish office of homeland security and emergency preparedness shall satisfy this requirement. Such submissions shall be made available to the parish department of operations, planning and permitting office to allow for verification of the nonconformity’s status. If a nonconformity is not required to report under the Right-to- Know Law (R.S. 30:2361 et seq .), the owner, operator, or similarly situated person responsible for the nonconformity must furnish a copy of one or more of the following reports to the parish department of operations, planning and permitting office within 30 days of submitting the report to the responsible public agency: a. Its annual toxic chemical release inventory report submitted under section 313 of the Emergency Planning and Community Right-to- Know Act of 1986 (42 U.S.C. 11023); b. Its discharge monitoring report (DMR) submitted under the Louisiana Pollution Discharge and Elimination System. For those uses whose DMR is submitted annually, the annual report shall satisfy this requirement. For those uses that submit DMRs more frequently than annually, the reports for an entire calendar year may be submitted to the parish at one time within 30 days of the last DMR submitted for the calendar year, or the DMRs may be submitted to the parish incrementally; or c. Such other report approved in writing by the parish president as providing information about ongoing operations similar to the reports described in subsections (k)(6)a and b of this section. (Emphasis added).
Upon our de novo review of the ordinance, we find that the directions set
forth in subsection (f) require Parish approval for any permitting for a property
three acres or larger or any property that requires other state or federal permits for
its operation. The Big Shake property at issue is 371 acres and, thus, is a tract of
land three-acres or larger as stated in subsection (f)(2).4
The trial court found that subsection (f) does not apply to a property with
nonconforming use status because subsection (f) qualifies that it applies
“notwithstanding subsection (d)” but does not specifically say notwithstanding
subsection (k). Subsection (d) discusses uses that conform with the designation
provided in the Land Use Plan. Therefore, if the landowner of a piece of land that
is three acres or larger and is designated agricultural seeks to use or operate the
4 It is unclear whether the property would be required to seek parish approval under subsection (f)(3).
21-CA-416 12 land in conformity with its designation (agricultural use), subsection (f) instructs
that the landowner or operator must obtain parish approval for any use, even
though its use is in conformity with the Land Use Plan’s designation. If we apply
the ordinance as interpreted by the trial court, however, a landowner or operator of
a piece of property three acres or larger that is designated agricultural but seeks to
continue to use the property for an industrial or other nonconforming use, would
not have to seek parish approval to operate in a manner not in conformity with the
land use designation and, thus, would be subject to less governmental review than
a property in use as designated pursuant to the Land Use Plan. We find this
interpretation leads to absurd results and does not reasonably comport with the
Parish’s intent set forth in the Land Use Plan.
We find a review of subsection (k)(6), which requires a landowner or
operator who seeks to establish or maintain nonconformity status to file an annual
“report approved in writing by the parish president as providing information about
ongoing operations….” further supports this interpretation. We find this provision
within the ordinance clearly sets forth the Parish’s intent to annually and
consistently review properties with alleged nonconforming use status, regardless of
the size of the land, to ensure that its use is in compliance with the Parish’s Land
Use Plan. The intent of the parish through the ordinance is clear that the Parish
reserves the right to annually make the preliminary factual determination as to
whether a use is a nonconforming use, an expansion of a former use, or a new use
as defined under subsection (k).5 Accordingly, upon our de novo review, we find
that under the facts of this case the trial court erred in its judgment holding that
SJCM is not required to first seek Parish approval to obtain permits and to
“excavate, sell and deliver 9 million cubic yards of clay…. .”
5 Based upon the record before us, it does not appear that YSS, SJCM, or any other operator of the property at issue filed any annual report with the Parish as required under the ordinance.
21-CA-416 13 We further point out that the record before us lacks any evidence to show
that YSS or SJCM sought any permit approval from the Parish for any use of the
property at issue.6 Moreover, the record lacks evidence of any permit denial,
planning commission decision, or other administrative decision from the Parish for
review. The Parish recently submitted correspondence to this Court pointing this
court to additional case law to consider in connection with its appeal, specifically
New Cingular Wireless, PCS, LLC v. City-Parish of East Baton Rouge, No. 2021
CA 0292, 2021 WL 6331379, La. App. 1 Cir. (12/30/21). The Parish asserted that
the New Cingular Wireless case supports its position “that great deference is due to
the Parish’s interpretation of its land use ordinance.” Moreover, SJCM on appeal
contends that “the Trial Court was under no obligation to “rubber stamp” the
Parish’s position, which itself represented an abrupt reversal of the Parish’s
endorsement of Big Shake’s use as a borrow pit only four months previously.”
Although both parties present arguments on appeal as to whether deference is
owed to the local governing authority’s decisions or actions in land use matters,
neither party introduced into any evidence any documentation to show denial of
the referenced utility permits or any other administrative Parish decision or
determination as to the Property’s use.7 8
6 To the contrary, at the hearing, SJCM introduced into evidence September 8, 2020 correspondence from Marrill McKarry, the Deputy Director of the Department of Planning and Development for St. James Parish, to Stephen Cali stating that the “St. James Parish Coastal Management Committee has no objection” to the Coastal Use Permit application it had submitted to the State. However, the letter further stated that it should not be “interpreted in any manner which would create any liability on the President and Council of St. James…and…additional permits or assurances may be required from other state or federal agencies.” 7 Although the record contains an email from the Parish’s attorney to opposing counsel concerning water and electrical permits and a concern of how to “get around” the ordinance’s restrictions on nonconformities, counsel also indicated he would “look at this in more depth and see if anything can be done.” We cannot find this email constitutes a decision, action, or determination on behalf of the Parish. 8 The trial court, when reviewing the denial of a permit or other land use decision, must review the decision to determine if the landowner met its burden to prove that the governmental entity which denied the permit acted in an arbitrary and capricious manner. King v. Caddo Parish Com'n, 97–1873 (La. 1998), 719 So.2d 410; Church v. St. Charles Par., 00-185 (La. App. 5 Cir. 8/29/00), 767 So.2d 913, 916–17, writ denied, 00-2727 (La. 11/27/00), 775 So.2d 450. Without a permit denial or other determination or decision from the Parish concerning this property, the trial court could not apply a proper standard of review.
21-CA-416 14 Upon our review of the record, we further find that the trial judge abused his
discretion in issuing the preliminary injunction based upon the testimony and the
evidence presented at trial. A writ of preliminary injunction is essentially an
interlocutory order issued in a summary proceeding incidental to the main demand
for permanent injunctive relief. It is designed to and serves the purpose of
preventing irreparable harm by preserving the status quo between the parties
pending a determination on the merits of the controversy. Bank One, Nat. Ass’n v.
Velten, 04-2001 (La. App. 4 Cir. 8/17/05), 917 So.2d 454, 458, writ denied, 06-
0040 (La. 4/28/06), 927 So.2d 283; Bally's Louisiana, Inc. v. Louisiana Gaming
Control Board, 99–2617, p. 7 (La. App. 1 Cir. 1/31/01), 807 So.2d 257, 263.
Notwithstanding the ultimate question of whether SJCM’s proposed use of
the land constitutes a nonconformity under the Parish ordinance—upon which we
do not opine—we find that the actions enjoined within the preliminary injunction
in this case do not maintain the status quo between the parties. Specifically, the
evidence presented at the injunction hearing did not establish that any utilities were
previously present at the property or, further, that heavy clay mining consistent
with the ability “to excavate nine million cubic yards of heavy clay” was taking
place at the time of the application for preliminary injunction. Therefore, while we
do not render any opinion on whether the proposed use or action of SJCM
constitutes a nonconformity under the ordinance, we do find that SJCM failed to
meet its burden to prove that the preliminary injunction as issued would be
necessary to maintain the status quo between the parties. Accordingly, we find that
the trial court abused its discretion in issuing the preliminary injunction in this case
and we reverse the trial court’s April 7, 2021 judgment.
REVERSED
21-CA-416 15 YOLANDE SCHEXNAYDER & SON, NO. 21-CA-416 INC. FIFTH CIRCUIT VERSUS COURT OF APPEAL PARISH OF ST. JAMES STATE OF LOUISIANA
JOHNSON, J., CONCURS WITH REASONS
I, respectfully, concur with the majority opinion and the reversal of the trial
court judgment in this matter. I agree with the majority opinion, insofar it finds
that the trial court abused its discretion in issuing the preliminary injunction based
upon the testimony and evidence presented at trial. I write separately to express
my view on whether St. James Construction Materials, LLC proved any irreparable
injury or loss.
In its request for preliminary injunction, St. James Construction Materials,
LLC (hereinafter referred to as “SJCM”), sought allowance of reasonable
continued use and operation of the property (hereinafter referred to as “Big
Shake”) as a commercial borrow pit consistent with its past use and operation,
namely, excavation of 9 million cubic yards of clay material to support flood
protection levee projects using backhoes, bulldozers/graders, dragline/excavators,
and other tracked or wheeled vehicles, including scales and a trailer, without the
necessity of St. James Parish Council’s (hereinafter referred to as “the Parish”)
approval, to prevent immediate and irreparable harm to SJCM pending a final
decision on the merits. SJCM contended that use of Big Shake as a borrow pit for
supply of clay for the U.S. Army Corps of Engineers’ projects qualified as a
nonconformity as of the effective date of the Ordinance. It further contended that
Big Shake continues to qualify for the nonconforming use as a borrow pit because
it has continued operations, without any interrupting period of six months or
21-CA-416 16 longer, and had no intent to ever abandon or cease use of the nonconforming use.
SJCM maintained that, under the mandatory provisions of the Ordinance relating
to nonconformities, reconnection of the electric and water utilities and installation
of scales were not “new use” activities subject to the Parish’s discretionary
approval.
SJCM argued that upholding the Parish’s position pending trial would cause
irreparable harm because it would prevent the U.S. Army Corps of Engineers’
approval of Big Shake as a clay borrow source on the West Lakeshore Lake
Pontchartrain Levee Project or result in revocation of the approval; irreparably
damage the reputation of Big Shake developed over the last decade as a
commercial clay source for large industrial and public projects; and, destroy the
competitive advantage Big Shake enjoys due to its proximity to the West
Lakeshore Lake Pontchartrain Levee Project sites.
The trial court granted SJCM’s preliminary injunction request and enjoined
the Parish from requiring prior approval as a precondition to SJCM’s use of the
entirety of the 371-acre property as a borrow pit to excavate, sell, and deliver up to
9 million cubic yards of clay material for U.S. Army Corps of Engineers levee
projects. The court also enjoined the Parish from requiring prior approval for the
use of any necessary utilities or equipment, including electrical or water services,
in connection with the nonconforming use, which would prevent such use, e.g.,
refusing to issue permits for the utilities. Thus, the question before this Court is
whether the trial court was manifestly erroneous in the issuance of preliminary
injunction in question.
An injunction shall issue in cases where irreparable injury, loss, or damage
may otherwise result to the applicant, or in other cases specifically provided by
law. Richard v. Bourgeois, 19-494 (La. App. 5 Cir. 3/18/20); 293 So.3d 790, 793.
An injunction is a harsh, drastic, and extraordinary remedy, and should only issue
21-CA-416 17 where the mover is threatened with irreparable loss or injury without an adequate
remedy at law. Id. “Irreparable injury” means the moving party cannot be
adequately compensated in money damages for his injury or suffers injuries, which
cannot be measured by pecuniary standards. Zeringue v. St. James Parish School
Bd., 13-444 (La. App. 5 Cir. 11/19/13); 130 So.3d 356, 359.
After reviewing SJCM’s arguments, I summarize its position as follows: if it
is required to undergo the pre-approval process set forth in the Ordinance by the
Parish, it will miss the opportunity and its edge to obtain a contract with the U.S.
Army Corps of Engineers for the West Lakeshore Lake Pontchartrain Levee
Project, and sustain damage to its reputation as a result of this loss. The alleged
losses can be measured by pecuniary standards.9 Therefore, SJCM failed to prove
irreparable loss or injury without an adequate remedy.
For the foregoing reasons, I opine that the trial court erroneously granted
SJCM a preliminary injunction against the Parish. In addition to the majority
opinion’s finding that the actions enjoined within the preliminary injunction do not
maintain the status quo between the parties, I find that SJCM failed to prove any
irreparable injury or loss. On those two findings, I agree that the trial court’s
judgment should be reversed. However, I do not agree with analyzing subsections
(f) and (k) of the Ordinance. As mentioned in the majority opinion, the record
before us lacks any evidence to show that SJCM sought any permit approval from
the Parish for any use of the property at issue. Because the Parish has not yet had
an opportunity to render a zoning decision in this matter for us to review, I find
9 “Loss of business income or profits is a type of special damages.” Breton Sound Oyster Company, LLC v. Stiel Insurance Co. of New Orleans, Inc., 17-955 (La. App. 4 Cir. 12/12/18); 299 So.3d 80, 89 n. 6, quoting, Nick Farone Music Ministry v. City of Bastrop, 50,066 (La. App. 2 Cir. 9/30/15); 179 So.3d 629, 631. Additionally, loss of business reputation is compensable through the award of damages; therefore, it is not a harm properly addressed through injunctive relief. Two Canal St. Inv’rs, Inc. v. New Orleans Bldg. Corp., 15-924 (La. App. 4 Cir. 4/20/16); 193 So.3d 278, 287-88, citing Ellis Const. Inc. v. Vieux Carre Resort Properties, L.L.C., 05-1109 (La. App. 4 Cir. 6/7/06); 934 So.2d 206, 213.
21-CA-416 18 that the analyses and determinations regarding the applicability subsections (f) and
(k) of the Ordinance are improper at this juncture.
21-CA-416 19 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN S. BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
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