Greater New Orleans Fair Housing Action Center v. St. Bernard Parish et al

Filing 899

ORDER AND REASONS: ORDERED that St. Bernard Parish shall provide copies of its Patricia Street survey within one (1) business day upon possession to both the Court and the Plaintiffs as set forth herein. FURTHER ORDERED that Defendants shall submit t he conclusions of their inspections of the detention ponds and property grading in writing as set forth herein. FURTHER ORDERED that Defendants shall submit the conclusions of their review of Plaintiffs as-built drawings of the water meters at all si tes in writing as set forth herein. FURTHER ORDERED that Defendants shall submit the conclusions of their reviewof Plaintiffs as-built drawings of the water meters at all sites in writing as set forth herein. Signed by Judge Helen G. Berrigan on 11/28/11.(plh, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GREATER NEW ORLEANS FAIR HOUSING
ACTION CENTER, ET. AL.

CIVIL ACTION

VERSUS

NO: 06-7185

ST. BERNARD PARISH, ET AL.

SECTION: “C” (1)

ORDER AND REASONS
The Court held an evidentiary hearing on November 22, 2011, to determine what
construction issues remain unresolved before Defendants St. Bernard Parish and St. Bernard Parish
Council (“St. Bernard Parish”) can issue occupancy permits to Plaintiff Provident Realty Advisors,
Inc. (“Provident”), for buildings at the Magnolia, Parc Place, Riverview, and Woodcrest sites.
Based on the evidence, testimony, and arguments produced by the parties at the hearing, the
memoranda of counsel, the court-appointed expert’s reports, the applicable law, and the record in
this case, the Court makes the following findings.
I. Sewer and Water Pipes
The Court finds that the method of installation of the water and sewer pipes, without crushed
limestone and without boards under the pipes, is adequate for protecting the health and safety of
property and people in St. Bernard Parish and that St. Bernard Parish may not use the method of
installation as a basis to deny occupancy permits. (Rec. Doc. 889-1 at 2-3). Before obtaining
approval for the pipes at the Magnolia site, however, Plaintiffs must still complete and pass an
inspection to verify that the gap between the pipes and the compacted sand bedding resulted from
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the method of excavation rather than an in situ condition.1 (11/22/11 Tr. at 17, 43-46). There are
no other outstanding construction issues concerning the pipes. (11/22/11 Tr. at 17).
II. Property Line on Patricia Street Side of Woodcrest Site
The Court cannot at this point make a finding regarding whether the perimeter slopes and/or
the water meters at the Woodcrest site on the Patricia Street side of the property are located on St.
Bernard Parish’s right of way. Richard Stierwald, a resident inspector for St. Bernard Parish,
commissioned a survey company to conduct a survey of the property to determine where the
property lines are. (11/22/11 Tr. at 103-104). Prior to the commissioning of this survey, two
surveys had been made indicating conflicting delimitations of St. Bernard’s right of way. According
to Provident’s project manager, Drouard Guillot, Provident’s survey indicated that the right of way
fluctuated along Patricia street, spanning between twenty-nine and nineteen and a half feet from the
center of the street. (11/22/11 Tr. at 102). In contrast, the Louisiana Department of Transportation
and Development (“DOTD”) survey indicated that the “apparent” right of way extended thirty feet
from the center of the street, all along the street. (11/22/11 Tr. at 103). The results of survey
commissioned by St. Bernard Parish, which are expected at the beginning of the first full week of
December, will assist the Court in deciding (a) whether Provident must build a retaining wall in
place of the perimeter slope at that location, such that Provident’s property does not impinge on St.
Bernard’s right of way; (b) the length of the sidewalk Provident must reconstruct, and the distance
from the back of curb at which Provident must reconstruct it, so as to comply with the Parish’s
sidewalk requirements; and/or (c) whether Provident must grant St. Bernard Parish a servitude,
which it is willing to do, along the Patricia Street side of the Woodcrest site on which Provident

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At the hearing, Dr. Lamanna suggesting trenching by hand or driving down a board
parallel to the pipe to make the assessment.
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must (i) construct the sidewalk and/or (ii) provide unfenced and otherwise unobstructed access to
the water meters if they are found to be located on the Parish’s right of way. (11/22/11 Tr. at 104,
165).
III. Retaining Walls Versus Perimeter Slopes
The Court also finds that the construction of slopes instead of retaining walls around parts
of the perimeters of the four sites does not violate Section 5-11 of the St. Bernard Parish Code of
Ordinances, with the exception of the retaining wall on the edge of the Parc Place site that abuts the
Chateau Lafitte apartment complex. (St. Bernard Parish Code of Ordinances Section 5-11).
Building a property at a level higher than an adjacent property may “creat[e] a water runoff
problem,” under the terms of the Code, because any excess rainwater that is not absorbed by the soil
on the higher property will flow onto the lower property. (St. Bernard Parish Code of Ordinances
Section 5-11(b)). Under the Code, when a person is “responsible for creating a water runoff
problem,” that person is required to erect a chain wall, defined as “a structure for retaining water in
a given area by pouring a concrete slab that has a minimum of twelve (12) inches, of which no less
than four (4) inches must extend below grade of the lower lot and also be constructed to prevent
seepage from beneath.” (St. Bernard Parish Code of Ordinances Section 5-11(a)-(b), Rec. Doc. 8871 at 7).
According to Matthew Harris, Provident’s project manager for all four sites, Provident’s
property line falls at the highest point of its property, which is topped with a “swale”2 that causes
any rainwater to stay on Provident’s land. (11/22/11 Tr. at 75). Just outside that property line,

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Dr. Anthony Lamanna defined the sloped-up edge, or “swale,” as “kind of like a levee . .
. a natural mound or man-made mound.” (11/22/11 Tr. at 50). Furthermore, what the court
reporter and the parties referred to as a “berm” is “the same thing as a swale[.]” (11/22/11 Tr. at
75).
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Provident has built perimeter slopes on the neighboring properties, with those owners’ permission.
(11/22/11 Tr. at 76). Consequently, no water “runs off” of Provident’s land to the neighbors’, and
whatever rain falls on the slopes is on the neighbors’ property, not Provident’s. (11/22/11 Tr. at 75).
Mr. Stierwald confirmed that such swales prevent the “creation of a water runoff problem.”
(11/22/11 Tr. at 109). So did Dr. Lamanna. (11/22/11 Tr. at 160). Therefore, Section 5-11 is
inapplicable and may not be used by St. Bernard Parish as a ground for denying occupancy permits.

The only place where Plaintiffs have created a water runoff problem that they have not
adequately addressed is on the border of the Parc Place site that abuts the neighboring apartments
in the Chateau Lafitte complex. Water is currently running off of Parc Place and is allegedly
creating puddles on the neighboring complex, despite the retention wall that Plaintiffs built in
response to the problem. (11/22/11 Tr. at 150-153; Def. Ex. 18). The retention wall that Plaintiffs
built is made of vinyl, and not of concrete, as required by the St. Bernard Parish Code of Ordinances,
Section 5-11(a) when a person creates a water runoff problem. (11/22/11 Tr. at 165). Dr. Lamanna
explained that depending on the structure of the particular vinyl Plaintiffs used, the wall may be
more or less effective in retaining water on Plaintiffs’ property. (11/22/11 Tr. at 33). However,
unless St. Bernard Parish consents to the vinyl as a substitute for concrete, Provident must replace
the wall with a concrete wall in compliance with St. Bernard Parish’s Code of Ordinances. Plaintiffs
must place “piles” or pieces of timber underneath the concrete, either by driving the piles into the
ground, vibrating them in, or installing “something called [a] helical pile,” which can be done with
a golf cart-sized vehicle that would be small enough to fit in the narrow space between the edge of
the Parc Place site and the Chateau Lafitte apartment complex. (11/22/11 Tr. at 165-166).
IV. Drainage
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Finally, the Court finds that the detention ponds must be completely built, and the lot grading
and final surveys must be completed before St. Bernard will be required to inspect them and make
final approvals. (Rec. Doc. 889-1 at 4). Plaintiffs must also provide calculations and plans
satisfying Dr. Lamanna that the pipe or pipes designed for transporting water runoff from the storm
sewer system to offsite detention ponds are in fact capable of doing so fast enough to prevent water
from overflowing the onsite water storage area. (11/22/11 Tr. at 39-40). Those plans must also
indicate the location of the orifice plate and detail the manner in which overflow will occur.
(11/22/11 Tr. at 40).
V. Conclusion
Accordingly,
IT IS ORDERED that St. Bernard Parish shall provide copies of its Patricia Street survey
within one (1) business day upon possession to both the Court and the Plaintiffs. Both sides shall
have two (2) business days to respond to the results of that survey, with one (1) day for a reply to
each side’s submission.
IT IS FURTHER ORDERED that Defendants shall submit the conclusions of their
inspections of the detention ponds and property grading in writing no later than three (3) business
days after Plaintiffs notify Defendants in writing that each of those construction issues is completed
and ready for inspection.
IT IS FURTHER ORDERED that Defendants shall submit the conclusions of their review
of Plaintiffs’ as-built drawings of the water meters at all sites in writing no later than two (2)
business days after Plaintiffs submit the drawings to Defendants.
IT IS FURTHER ORDERED that Defendants shall submit the conclusions of their review
of any remaining inspections, including building, electrical, and plumbing inspections, in writing
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no later than two (2) business days after Plaintiffs submit the required documents to Defendants.
If Defendants are unsatisfied with a given issue such that they deny approval, Defendants shall, in
their written conclusions, explain why they are unsatisfied and provide evidence that the condition
has not been met.

New Orleans, Louisiana, this 28th day of November, 2011.

____________________________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE

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