Robinson et al v. City of Baton Rouge/Parish of East Baton Rouge et al

Filing 115

ORDER granting in part and denying in part 62 Motion for Summary Judgment...IT IS FURTHER ORDERED that the motion is GRANTED in that the following of the Plaintiffs' claims are DISMISSED WITH PREJUDICE: (1) the substantive due process claim, (2) the procedural due process claim, and (3) the categorical takings (Lucas) claim; IT IS FURTHER ORDERED that, in all other respects, the Defendants' motion is DENIED. Trial will proceed on the following claims: (1) the as applied (Penn Centra l) takings claim, (2) the Monell claim, and (3) the state law takings claim. IT IS FURTHER ORDERED that, by Monday, October 24, 2016, at 12:00 p.m., the parties shall file into the record trial briefs no longer than five pages addressing how this rul ing impacts the parties' currently pending motions in limine. The parties shall also inform the Court of which of their proposed jury instructions they wish to withdraw as no longer necessary. The parties are not entitled to file new motions in limine or seek the exclusion of additional evidence,and they are not entitled to submit new proposed jury instruction. Signed by Judge John W. deGravelles on 10/22/2016. (KDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
GEORGE W. ROBINSON, JR., ET AL.
CIVIL ACTION
v.
NO. 13-375-JWD-RLB
CITY OF BATON ROUGE AND THE
PARISH OF EAST BATON ROUGE, ET
AL.
RULING AND ORDER
This matter is before the Court on the Motion for Summary Judgment Pursuant to Fed. R.
Civ. P. 56 Filed by City of Baton Rouge/Parish of East Baton Rouge (Doc. 62) submitted by the
Defendants, the City of Baton Rouge/Parish of East Baton Rouge (“City/Parish”) and the
Planning and Zoning Commission for the City of Baton Rouge/East Baton Rouge Parish
(“Planning Commission”) (collectively, the “Defendants”). The Plaintiffs George W. Robinson,
Jr., and Demetra Parson Robinson (collectively, the “Plaintiffs”) oppose the motion. (Doc. 73.)
Oral argument is not necessary.
Having carefully considered the law, facts in the record, and arguments of the parties, the
motion is granted in part and denied in part.
I.

Introduction and Summary of Rulings
The Plaintiffs are real estate developers who attempted to develop a subdivision within

the City/Parish. Pursuant to state and local law, they submitted a preliminary plat for approval to
the City/Parish’s Planning Commission. The Planning Commission denied approval. This suit
ensued.
The Plaintiffs claim they suffered a number of violations of their federal and state
constitutional rights. Specifically, the Plaintiffs assert (1) an inverse condemnation claim under

the Fifth and Fourteenth Amendments; (2) an unconstitutional taking claim under Article I,
Section 4 of the Louisiana Constitution; (3) a substantive due process claim under the Fourteenth
Amendment; (4) a claim for denial of procedural due process under the Fourteenth Amendment;
and (5) a claim under 42 U.S.C. § 1983 under Monell v. Department of Social Services, 436 U.S.
658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). The Defendants seek to have each of these claims
dismissed.
The Court has carefully reviewed the briefs and evidence submitted by the parties as well
as the applicable law. Having done so, the Court makes the following rulings:
The Court grants the Defendants’ motion with respect to the substantive due process
claim. The Court finds that all reasonable jurors would conclude that the reasons for the
Planning Commission denying approval of the preliminary plat were the commissioners’
concerns about issues like fill mitigation/elevation, flooding, and drainage. The Court further
finds that, as a matter of law, these reasons were rationally related to legitimate governmental
interests like public health, safety, and the general welfare. As a result, the Plaintiffs’
substantive due process claim fails.
The Court also grants the Defendants’ motion with respect to the procedural due process
claim. The key issue here is whether, as a matter of state law, the Plaintiffs’ had a legitimate
claim of entitlement to approval of their preliminary plat. This question turns on whether the
Planning Commission had discretion, which turns on whether it was very likely or certain the
Plaintiffs would receive approval. State law recognizes that the Planning Commission has
discretion if it does not act arbitrarily and capriciously and bases its decision on legitimate
reasons. Since this Court has determined that the Planning Commission did not act arbitrarily
and capaciously and did in fact base its decision on legitimate reasons, the Planning Commission

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had discretion to deny approval. That is, as a matter of state law, it was not certain or very likely
the Plaintiffs would receive approval, so they had no legitimate claim to entitlement.
Consequently, the Plaintiffs cannot prevail on their procedural due process claim.
The takings claims are ripe. A takings claim is not ripe (1) until the relevant
governmental unit has reached a final decision as to what will be done with the property, and (2)
until the plaintiff has sought compensation through whatever adequate procedures the state
provides. As to the first requirement, the Planning Commission reviewed the Plaintiffs’
preliminary plat, sought additional information, was provided same, and then rendered a final
decision denying approval. The Defendants have not identified an avenue (be it through
regulation or law) that the Plaintiffs should have pursued but did not. The Defendants argue the
Plaintiffs should have sought judicial review, but the Plaintiffs did in fact seek a mandamus,
which this Court denied. Thus, The Plaintiffs obtained a final decision from the Planning
Commission. As to the second ripeness requirement, the Defendants have waived any objection
to it by removing the Plaintiffs’ state court inverse condemnation proceeding to this Court.
Accordingly, the Defendants’ ripeness arguments are rejected.
However, the Court grants the Defendants’ motion with respect to the Plaintiffs’
categorical takings (Lucas) claim. To prevail, the Plaintiffs must show that they lost all value in
the property. In short, they did not. The Plaintiffs sold their property for over one million
dollars. No reasonable juror would find that they lost all value. Further, even if the relevant
question was whether the Plaintiffs had any economic use of their property, their claim would
still fail. It is undisputed they obtained preliminary plat approval to build a subdivision on part
of the property at issue. Thus, under either standard, the Plaintiffs’ claim fails.

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Nevertheless, the Court finds that there are genuine issues of material fact precluding
summary judgment on the Plaintiffs’ as applied takings claim. The viability of this claim
depends on the factors set forth in Penn Central Transportation Co. v. City of New York, 438
U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978), which include (1) the economic impact of the
regulation, (2) the extent to which the regulation has interfered with distinct investment backed
expectations, and (3) the character of the government action. The Plaintiffs have submitted
evidence such that a reasonable juror could find that the first two factors weigh in their favor.
While the third factor weighs in favor of the Defendants, this merely demonstrates how this factintensive question is best decided by a jury.
The Court also denies the Defendants’ motion with respect to the Monell claim. Under
Fifth Circuit case law, a plaintiff may establish a policy based on an isolated decision if the
decision was made by an authorized policymaker in whom final authority rested regarding the
action ordered. Here, the Planning Commission was a policymaker for § 1983 purposes, and its
decision to reject that Plaintiffs’ preliminary plat constituted a policy under the above standard.
Further, this action was the driving force of the surviving alleged constitutional violation.
Accordingly, the Monell claim survives.
Lastly, the Court denies summary judgment as to the state law takings claim. Under
Louisiana law, a regulatory taking occurs when a regulation destroys a major portion of the
property’s value or eliminates the practical economic uses of the property. Here, the Plaintiffs
have submitted evidence demonstrating that their property lost about $1.3 million worth of value.
A reasonable juror could conclude, even with the sale of most of the property, that the Plaintiffs
were denied a major portion of the property’s value.

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II.

Factual Background1
A. The Parties
Plaintiffs George W. Robinson, Jr., and Demetra Parson Robinson are real estate

developers who have developed numerous subdivisions in East Baton Rouge Parish and the
surrounding parishes over the past thirty-five years. (See Doc. 73-10 at 1.) The Plaintiffs owned
a 101.96 acre tract of land within the City/Parish. (See id. at 2.)
The Defendant Planning Commission is an entity created pursuant to Louisiana Revised
Statute 33:101 et seq. (Doc. 62-2 at 1; Doc. 73-1 at 1.) The Planning Commission is charged
with, among other things, the responsibility to review and approve of subdivision plats. (Doc. 622 at 1; Doc. 73-1 at 1.)
B. The Unified Development Code
1. The Unified Development Code and Subdivisions Generally
In 1996, the East Baton Rouge Parish Metropolitan Council, which is the governing
authority for the City/Parish, adopted the Unified Development Code (“UDC”), which
consolidated into one volume all existing regulations related to land development within the
Parish of East Baton Rouge. (Doc. 62-2 at 1; Doc. 73-1 at 1—2.) While not facts per se, the
Court finds that an overview of the UDC will be useful in framing the issues of this ruling.
The UDC provides in its opening paragraph:
In accordance with the provisions of R.S. 33:101 et seq., and particularly R.S.
33:112, and in order to promote the health, safety, convenience, morals, and
general welfare of the community, to ensure orderly development of property;
provide for the proper arrangement, width, naming of streets in relation to other
1

The Statement of Material Facts (Doc. 62-2) and the Plaintiffs’ Local Rule 56(B) Statement of Disputed Facts
Precluding Summary Judgment as to Defendants’ Motion for Summary Judgment (Doc. 73-1) demonstrate that the
parties agree on a considerable number of facts. However, they dispute the significance of many of those facts. For
instance, while Plaintiffs admit that certain facts are undisputed, they maintain that they are merely “historical.”
(Doc. 73-1 at 9.) Nevertheless, the Court has attempted to include a majority of the undisputed facts in this section.
Their significance will be discussed later in the opinion, as needed.

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existing or planned streets that provide adequate and convenient traffic circulation
including access for emergency vehicles; and ensure the adequacy of vehicular
parking, utilities, and open space and recreation facilities, the following
regulations are adopted by the Planning Commission.
(UDC § 1.1, Doc. 73-2 at 1, also available at
https://brgov.com/dept/planning/udc/pdf/UDC_2016.pdf). The UDC further provides:
no subdivision . . . which is in conflict with the Master Plan or the Unified
Development Code shall be constructed or authorized by the appropriate
department of the City Parish government, until and unless the locations and
extent thereof shall have been submitted to and approved by the Planning
Commission and where appropriate, Zoning Commission.
(UDC § 3.04(B), Doc. 73-2 at 5.)
2. Overview of Subdivision Regulations
Section 4.102 of the UDC is entitled “Subdivision Review and Procedures.” (Doc. 73-2 at
9.) Under this regulation, an applicant first presents prints of a proposal to staff at a preapplication conference, and the staff “informs the applicant of procedures and required items
necessary to complete the application package and review Preliminary Plat Checklist items.”
(UDC § 4.102(A), Doc. 73-2 at 9.) The UDC then provides the following concerning
preliminary plans:
After a conference with the Planning Commission staff, the applicant shall submit
the required application package to the Subdivision Coordinator of the Planning
Commission, who will check the preliminary plan for compliance with the
geometric standards and the preliminary plan requirements. Before the Planning
Commission approves a request to subdivide property, there should be accurate
and complete information submitted by the applicant to the Office of the Planning
Commission which will assure that the proposed subdivision meets all the
requirements of the Unified Development Code. . . . The Planning Commission
staff and the Department of Public Works shall review all major and minor
subdivision requests.
(UDC § 4.102(B), Doc. 73-2 at 9.)

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The Planning Commission “shall hold a public hearing on all major subdivisions and
minor subdivisions with waivers.” (UDC § 4.102(C), Doc. 73-2 at 9.) “Upon approval by the
Planning Commission, the Planning Director or his designee will return to the applicant an
approved copy of the preliminary plan.” (Id.)
The applicant must confer with the Department of Public Works and the Parish Health
unit “to determine the standards and specifications, which shall govern proposed improvements.”
(UDC § 4.102(D), Doc. 73-2 at 10.) After approval of the preliminary plat by the Planning
Commission, he must submit “complete construction plans for the first or initial development of
the area given preliminary approval” along with other information to the Department of Public
Works “for their review and approval.” (Id.) No construction work can be done until the
completed construction plans have been approved by the Department of Public Works, and “a
reasonable time must be allocated for the proper study of the plans submitted.” (Id., Doc. 73-2 at
10—11.) Then, the applicant proceeds with preparation of a final plat. (Id.)
The UDC further provides:
After construction plans have been approved by the Department of Public Works
and sewer construction plans have been approved by the Department of Public
Health and the Health Unit, the Secretary of the Planning Commission shall be
notified of such approval in writing. Final approval of construction plans shall be
valid for a period of six (6) months from date of approval. . .
(UDC § 4.102(F), Doc 73-2 at 11.) After a preconstruction meeting with the Department of
Public Works, a permit is issued, and construction can begin. (UDC § 4.102(G), Doc 73-2 at 11.)
After construction is complete, the improvements are accepted and approved by the
Department of Public Works and the Secretary of the Planning Commission. (UDC § 4.102(H),
Doc. 73-2 at 13-14.) The final plat is then checked for conformity with the preliminary plans
and Section 4.6 of the UDC (governing final plats), and it cannot be approved until there has

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been compliance with all stipulations of the Planning Commission and Department of Public
Works. (UDC § 4.102(I), Doc. 73-2 at 14.) After approval, the final plat is filed to the Director
of the Planning Commission. (UDC § 4.102(J), Doc. 73-2 at 14.)
3. Preliminary Plats
Section 4.03 of the UDC specifically addresses preliminary plats. This section provides:
The purpose of the preliminary plat is to show graphically all facts needed to
enable the Planning Commission, the Department of Public Works, and other
City-Parish agencies, including the Parish School Board, Recreation and Park
Commission, and the Parish Health Unit, to determine whether the proposed
layout of the land in question meets the requirements of these regulations. The
Department of Public Works also utilizes the preliminary plat to assign municipal
address block ranges and address numbers to new streets and properties. Changes
may be necessary in the preliminary plat before it can be tentatively approved.
Approval of a preliminary plat is a tentative approval only and does not constitute
the approval of a Final Plat.
(UDC § 4.03, Doc. 73-2 at 21.) The preliminary plat normally includes the title under which the
proposed subdivision is to be recorded; boundary lines and existing improvements; designation
of lots; names of all abutting subdivisions; features of the proposed subdivision; sewers, water
lines, and storm water management; the location of all existing and proposed servitudes and
public utilities, streets, special use areas such as proposed parks, playgrounds, and churches; a
north point, scale, and date; a vicinity map; flood elevation data, all public servitudes and all
private servitudes intended for public use; a storm water management plan; and a drainage
impact study; and a water quality study. (Id., Doc. 73-2 at 21-24.)
Additionally, UDC § 4.103 provides in part:
No preliminary plat shall be approved unless the Department of Public Works
determines that public facilities will be adequate to support and service the area of
the proposed subdivision. Public facilities and services to be examined for
adequacy will include roads and public transportation facilities, sewerage and
water service, schools, police stations, fire houses, and health clinics.

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(UDC § 4.103(A)(2), Doc 73-2, at 15.) The UDC then has specific provisions concerning
drainage improvements. (UDC § 4.103(A)(2)(e), Doc 73-2, at 15—16.) As one Planning
Commission member testified, the Department of Public Works makes recommendations to the
Planning Commission with respect to drainage, traffic, and sewer impact. (Doc. 73-5 at 3.)
C. The Plaintiffs’ Preliminary Plat
On October 11, 2012, the Plaintiffs submitted a preliminary plat to the Planning
Commission for a proposed cluster subdivision to be developed on approximately 57.5 acres of
their larger 101.96 acre tract. (Doc. 62-2 at 2; Doc. 73-1 at 9; Doc. 73-10 at 2.) This proposed
cluster subdivision was named Mallard Trails. (Doc. 62-2 at 2; Doc. 73-1 at 9.)
Plaintiffs have submitted evidence highlighting the ways in which the preliminary plat
complied with UDC and other requirements. The property was zoned for rural, and the Mallard
Trails would have complied with those zoning requirements. (Doc. 73-4 at 18; Doc. 73-5 at 4, 7;
Doc. 73-6 at 6.) Moreover, the Planning Commission staff recommended that Plaintiffs’
preliminary plat be approved and felt that it met all the requirements of the UDC. (Doc. 73-4 at
20, 41; Doc. 73-5 at 6; Doc. 73-7 at 19.) The Department of Public Works recommended
approval, provided that its comments were addressed and written into the Planning Commission
approval; however, these items were not going to be done prior to the Planning Commission’s
vote. (Doc. 73-5 at 6; Doc. 73-6 at 8.) One Planning Commission member even admitted that
the project “exceeded all of the UDC requirements” and that there were no requirements that the
developers did not meet with respect to this preliminary subdivision plat. (Doc. 73-5 at 18—19.)

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D. The Public Hearing
Pursuant to the UDC, the public hearing regarding the application for the Mallard Trails
preliminary plat was placed on the agenda for the November 13, 2012, meeting of the Planning
Commission. (Doc. 62-2 at 2; Doc. 73-1 at 9.) The hearing was postponed several times.2
On January 22, 2013, a public hearing regarding the application for Mallard Trails’
preliminary plat was held and attended by the Plaintiffs as well as members of the public. (Doc.
62-2 at 3; Doc. 73-1 at 2.) The following commissioners attended the hearing: Tara Wicker,
Darius Bonton, Sarah Holiday-James, Laurie Marien, Steven Perret, John Price, and Martha
Tassin. (Doc. 62-2 at 3; Doc. 73-1 at 2.)
1. Individuals Speaking in Favor of Approving the Preliminary Plat
Several individuals spoke in favor of approving the preliminary plat application. (Doc.
62-2 at 3—5; Doc. 73-1 at 10.) Among other things, the Plaintiffs’ engineer, G. Wayne Sledge,
made the following statements:
-

Fifty-five percent (55%) of the project will include common open space.

-

Five (5) acres of wetlands were intended to be preserved.

-

Two meetings were held with area residents on November 7, 2012, and November 28,
2012.

-

Three (3) layouts of the subdivision were submitted to the Planning Commission
staff, two of which were rejected because they did not meet the criteria for a cluster
subdivision.

-

A significant portion of the project lies in the 100-year flood plain.

2

On November 9, 2012, the Plaintiffs’ engineer, G. Wayne Sledge, requested that the application be deferred until
the next scheduled meeting so that the Plaintiffs could meet with area residents. (Doc. 62-2 at 2; Doc. 73-1 at 9.)
Pursuant to the UDC, the public hearing regarding the application for Mallard Trails’ preliminary plat was placed on
the agenda for the December 10, 2012, meeting of the Planning Commission. (Doc. 62-2 at 2—3; Doc. 73-1 at 9.)
At the December 10, 2012, meeting, Commissioner W.T. Winfield moved that the consideration for the application
for Mallard Trails’ preliminary plat be deferred until the next scheduled meeting on January 22, 2013, which was
seconded by Commissioner Darius Bonton. (Doc. 62-2 at 3; Doc. 73-1 at 9—10.)

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-

The property is really close to Bayou Manchac.

-

Regarding the local issue of drainage, much of this property and the adjoining
property drains poorly.

-

Several meetings with the DEQ were conducted because there was a lot of concern
about the impact of the discharge from the sewer treatment plant into the Bayou
Manchac watershed.

-

[T]he fundamental issue is it floods because [the property is] low, and showing you
[the pipe sizes that will be laid under Hoo Shoo Too Road] is more feel good than
substance because it’s low, and there’s nothing we’re doing to change that.

(Doc. 62-2 at 3—4; Doc. 73-1 at 10.)
Plaintiff George Robinson also participated in the hearing and spoke in favor of
approving the preliminary plat application. (Doc. 62-2 at 4; Doc. 73-1 at 10.) While setting forth
his reasons as to why the project should be approved, he stated the following:
He was assured by DPW and the Sheriff’s Department that they will do additional
surveillance out on Hoo Shoo Too Road and implement speed radar signs in an
effort to get motorists to drive slower so the impact on fatalities and serious
accidents are decreased.
(Doc. 62-2 at 4—5; Doc. 73-1 at 11.)
Vera Martin, a local resident, spoke in favor of the approval. (Doc. 62-2 at 5; Doc. 73-1
at 11.) Martin stated that she “feel[s] that they should be able to go ahead with their property.”
(Doc. 62-2 at 5; Doc. 73-1 at 11.)
2. Individuals Speaking in Opposition to Approval
However, five other local residents spoke in opposition to the approval. (Doc. 62-2 at 5;
Doc. 73-1 at 11.) Fred Matthews lives on Hoo Shoo Too Road, and he expressed concerns about
detrimental flooding, poor drainage, and dangerous traffic. (Doc. 62-2 at 5; Doc. 73-1 at 11.)
Brent Rhodes is a local real estate developer who developed the Mallard Lakes
subdivision, which was across from Plaintiffs’ proposed subdivision. (Doc. 62-2 at 5; Doc. 73-1
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at 11.) Rhodes opined that the Plaintiffs’ proposed subdivision was a bad development and
expressed concerns about poor drainage and dangerous traffic. (Doc. 62-2 at 5; Doc. 73-1 at 11.)
Pepper Allgood lives on Hoo Shoo Too Road. (Doc. 62-2 at 5; Doc. 73-1 at 11.) He
stated that approval should fail because no drainage impact study was provided with the
submission of the preliminary plat in accordance with the UDC. (Doc. 62-2 at 5; Doc. 73-1 at
11.) He also expressed concerns about poor drainage, detrimental flooding, fill mitigation (i.e.
placing fill in the flood plain), questionable impervious coverage, the character of the project,
and dangerous traffic. (Doc. 62-2 at 5; Doc. 73-1 at 11.)
The final two members of the public were Angel McCarstle and Jerry Chapman. (Doc.
62-2 at 5; Doc. 73-1 at 11.) Angel McCarstle, a local resident, expressed concerns about the low
elevation, poor drainage, dangerous traffic, and a possible subdivision restriction that burdened
the property. (Doc. 62-2 at 5—6; Doc. 73-1 at 11.) Chapman, who lives on Hoo Shoo Too Road,
expressed concerns about a possible subdivision restriction that burdened the property. (Doc. 622 at 6; Doc. 73-1 at 11.)
3. Technical Data or Expert Opinions
The Plaintiffs contend that there was no technical data or expert analysis presented
adverse to the Plaintiffs’ application. The Plaintiff George Robinson attests to this fact. (Doc.
73-10 at 3.) Commissioners Price, Perret, and Marien appear to confirm this. (See, infra.)
However, the Plaintiff’s engineer appeared to make some statements (referenced above) that
were in fact adverse. This issue will be more fully explored below.
4.The Commissioners’ Words and Actions
Four commissioners expressed the following concerns at the hearing: Commissioner
Price, about fill mitigation/elevation and flooding; Commissioner Perret, about drainage and

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flooding; Commissioner Tassin, about accessibility and traffic and about drainage and flooding;
and Commissioner Marien, about connectivity. (Doc. 62-2 at 6; Doc. 73-1 at 11.)
After making a lengthy statement about the approval process, Commissioner Darius
Bonton moved to approve the Plaintiffs’ application; however, none of the other six (6)
commissioners seconded his motion; therefore, it died for lack of a second. (Doc. 62-2 at 6; Doc.
73-1 at 12.) Commissioner Price moved to defer the application, and this motion was seconded
by Commissioner Bonton. (Doc. 62-2 at 6—7; Doc. 73-1 at 12.) Commissioner Tassin moved
to deny the application, and this motion was seconded by Commissioner Marien. (Doc. 62-2 at
7; Doc. 73-1 at 12.) Commissioner Price stated that the application “didn’t look like it was going
to be approved tonight, and rather than have it die today” allowed Plaintiffs an opportunity to
alleviate the panel’s concerns. (Doc. 62-2 at 7; Doc. 73-1 at 12.) Thus, a vote on the preliminary
plat was deferred for sixty (60) days on the motion of the commissioners. (Doc. 62-2 at 7; Doc.
73-1 at 2.)
E. Rejection of the Preliminary Plat
On April 22, 2013, the preliminary plat came back before the Planning Commission
wherein the approval of the preliminary plat failed for lack of five affirmative votes. (Doc. 62-2
at 7; Doc. 73-1 at 3.) Four planning commissioners voted in favor of approval. (Doc. 62-2 at 7;
Doc. 73-1 at 3.) Four planning commissioners voted against approval, and these included Laurie
Marien, Steven Perret, John Price, and Martha Tassin. (Doc. 62-2 at 7; Doc. 73-1 at 3.) One
commissioner was absent. (Doc. 62-2 at 7; Doc. 73-1 at 3.) The basis for the decision of those
members who voted against approval will be addressed in more detail below.

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F. After the Rejection: Plaintiffs’ Conduct, Filing Suit, Damages, and a Second
Preliminary Plat
The Defendants dispute the significance of certain issues related to the Plaintiffs’ conduct
after the denial of the preliminary plat but before suit was filed. First, after the denial, the
Plaintiffs did not submit any other proposed preliminary applications. (Doc. 62-2 at 7.) Plaintiffs
admit this is true but maintain it is irrelevant. (Doc. 73-1 at 12.)
Second, the Defendants assert that Plaintiffs failed to seek judicial review pursuant to La.
Rev. Stat. § 49:964 of Louisiana’s Administrative Procedure Act, La. Rev. Stat. § 49:950 et seq.
(Doc. 62-2 at 7.) The Plaintiffs argue that this is a legal conclusion and is irrelevant, for reasons
discussed below. (Doc. 73-1 at 5.)
On May 7, 2013, Plaintiffs filed suit in state court against the Defendants, along with the
four individual Planning Commission members. (Doc. 1-2 at 1.) On June 12, 2013, the
Defendants removed the action to this court. (Doc. 1.)
In the Petition, in addition to the other claims discussed above, the Plaintiffs sought a writ
of mandamus requiring the Planning Commission to approve the preliminary plat. (Doc. 1-2 at
6—7.) This Court denied the Plaintiffs’ mandamus claim in its ruling on the Defendants’ motion
to dismiss. (Doc. 36 at 10—11.)
Additionally, after suit was filed and beginning in September 2013, in about eight
separate transactions, the Plaintiffs sold a majority of the 57.5 acres that would have comprised
Mallard Trails. (Doc. 62-2 at 8—10; 73-1 at 8—9.) The Defendants submit evidence that the
Plaintiffs received at least $1.2 million for these sales and that this was profit. (Doc. 62-2 at 8—
10.)
The Plaintiffs do not dispute receiving that amount from selling portions of the 57.5 acres
as vacant and undeveloped tracts, but they do dispute the interpretation and significance of these
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amounts. (Doc. 73-1 at 7—8; Doc. 73-10 at 3.) The Plaintiffs argue that the Defendants have
submitted no evidence supporting the conclusion that the above amount was net profit (i.e., gross
profit minus costs). (Id.) The Plaintiffs also submit evidence that, had the project been allowed
to proceed, they would have earned a net profit of about $1.3 million above and beyond the value
of the vacant land – that is, net profit from the sale of residential lots. (Doc. 73-10 at 3; Doc 72-7
at 22.)
Lastly, the parties do not dispute that, in November 2013, the Plaintiffs submitted to the
Planning Commission for approval a preliminary plat for a subdivision that contained part of the
land encompassing the proposed Mallard Trails subdivision. (Doc. 62-2 at 8; Doc. 73-1 at 8.) In
January 2014, the Plaintiffs’ preliminary plat for a subdivision received unanimous approval
from the Planning Commission. (Doc. 62-2 at 8; Doc. 73-1 at 8.) The parties dispute the
significance of this fact, and the Court will discuss it in more detail below.
III.

Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). If the mover bears his burden of showing that there is no genuine issue of fact, “its
opponent must do more than simply show that there is some metaphysical doubt as to the
material facts . . . [T]he nonmoving party must come forward with ‘specific facts showing that
there is a genuine issue for trial.’” See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586—87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (internal citations omitted). The
non-mover's burden is not satisfied by “conclusory allegations, by unsubstantiated assertions, or
by only a ‘scintilla’ of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(citations and internal quotations omitted). “Where the record taken as a whole could not lead a

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rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ”
Matsushita Elec. Indus. Co., 475 U.S. at 587. Further:
In resolving the motion, the court may not undertake to evaluate the credibility of
the witnesses, weigh the evidence, or resolve factual disputes; so long as the
evidence in the record is such that a reasonable jury drawing all inferences in
favor of the nonmoving party could arrive at a verdict in that party's favor, the
court must deny the motion.
International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).
IV.

Discussion
A. Substantive Due Process Claim
1. The Parties’ Arguments
a. The Defendants’ Memorandum in Support
The Defendants describe the Plaintiffs’ allegations of a substantive due process violation

as “unequivocally baseless.” (Doc. 62-1 at 13.) The Defendants are specifically referring to the
Plaintiffs’ claim that the Planning Commission relied solely on public opposition in making their
decision and that the Defendants’ reasons for denying the preliminary plat were arbitrary and
capricious and an unreasonable exercise of police power.
The Defendants argue that the rational relationship test should be applied and that, at the
public hearing, the commissioners voting against the project “collectively expressed concerns
about drainage, flooding, fill mitigation/elevation, traffic, emergency vehicle accessibility, and
connectivity, which are all legitimate reasons that bear a substantial relationship to the public’s
health, safety, morals, and general welfare.” (Doc. 62-1 at 14.) The Defendants contend this is
confirmed by the depositions of these commissioners. Moreover, the Defendants assert that,
“[d]uring his deposition, Plaintiff, Mr. Robinson, acknowledged that the Planning Commission
raised legitimate concerns about his project” and that he “repeatedly conceded that the

16

Commissioners concerns were well placed.” (Doc. 62-1 at 14.) The Defendants conclude by
stating that the reasons cited by the Defendants at the “public hearing bear no hint of arbitrary
and capricious conduct,” are in fact “substantially related to the general welfare of the
community[,] and “undoubtedly provide a ‘conceivable legitimate governmental objective that is
at least debatable.’ ” (Doc. 62-1 at 15.)
b. The Plaintiffs’ Opposition
The Plaintiffs first rely on this Court’s holding on the Defendants’ motion to dismiss
(Doc. 36) and claim that, if the Planning Commission’s decision were based solely on public
opposition, such a decision would be arbitrary and capricious and thus offend substantive due
process. The Plaintiffs assert that one of the commissioners who voted to deny the project
agreed:
Q:

So if there were neighbors who said the traffic was too bad or there were drainage
issues, would that be enough of a reason for you to vote no on this project[?]

A:

No. There would have to be some kind of substantiating evidence or something.
I mean, people get up there and say all kinds of stuff.

(Doc. 73 at 10 (quoting Doc. 73-6 at 16).)
The Plaintiffs contend that the Defendants cite only to “(1) statements made by the public
at the hearing, and (2) the subjective ‘concerns’ expressed by the [Planning Commission] about
flooding, drainage, and traffic in the vicinity of the Mallard Trails Project.” (Doc. 73 at 10—11.)
The Plaintiffs argue that the testimony of the commissioners who voted to deny the project
demonstrates that the only basis for their subjective beliefs was public opposition and that no
technical or expert analysis or other objective data supported their decision. Plaintiffs claim that
these “concerns” did not stop the Defendants from approving of other subdivisions near the
Mallard Trails project.

17

The Plaintiffs assert that, “Defendants’ apparent contention is that superficially wellmeaning concerns about legitimate issues, even if based upon nothing more than personal
opinion and public opposition and even though not applied consistently to all projects considered
by Defendants, is enough to justify Defendants’ action.” (Doc. 73 at 11.) Again relying on the
Court’s previous ruling, the Plaintiffs contend that the Planning Commission must base its
decision on “data presented to” it and that “such ‘data’ cannot consist solely of public
opposition.” (Id.) The Plaintiffs claim that the only “data” presented by the Defendants is
“statements of lay opponents of the Mallard Trails Project.” (Id.) The Plaintiffs assert that a
reasonable juror could find in their favor on this claim.
c. The Defendants’ Reply
The Defendants dispute the Plaintiffs’ contention that the Planning Commission needed
to rely on “technical or expert analysis or other objective data” in making its decision, and the
Defendants dispute the Plaintiffs’ interpretation of the cited case law.
Rather, the key question is “whether a rational relationship exists between the [policy]
and a conceivable legitimate governmental objective. If the question is at least debatable, there
is no substantive due process” violation. (Doc. 76 at 6 (citing FM Properties Operating Co. v.
City of Austin, 93 F.3d 167, 175 (5th Cir. 1996)).) The Defendants argue that the Planning
Commission need not consider expert analysis or technical data but must rather, under state and
federal law, act with purpose of “promot[ing] the health, safety, morals, or the general welfare of
the community.” (Id. (citing La. Rev. Stat. § 33:107; FM Properties, 93 F.3d at 174—75).)
The Defendants further contend that “data” need not be defined to mean only scientific or
technical information, and, in any event, the Planning Commission considered the following
“data”: “The public’s opposition, the recommendations from the Planning Commission staff,

18

their personal visits to the site of the proposed project, their in-person meetings with the property
owners, their requests for further studies to be conducted and, their request for a secondary
access road for emergency vehicle access.” (Doc. 76 at 6 (citing Doc. 62-10).) Defendants thus
maintain that they did not rely on public opposition alone but rather a “plethora of legitimate
reasons.” (Id. at 6 n. 9.)
The Defendants finally say that the approval of other subdivisions is irrelevant; there is
no information provided as to the similarities of those approved subdivisions.
d. The Plaintiffs’ Surreply
The Plaintiffs respond by attacking the list of “data” considered by the Defendants. The
Plaintiffs claim that “the only evidence [the Defendants] cite in support of these various ‘factors’
is Exhibit ‘H’ to their motion, the minutes of the January 2013 meeting in which action on the
project was deferred, and these minutes reflect only ‘public opposition’ to the development.”
(Doc. 80 at 4.) Thus, according to the Plaintiffs, “these new ‘factors’ are unsubstantiated by the
record and cannot comprise a basis for summary judgment.” (Id.)
The Plaintiffs also argue that the record evidence concerning these factors “actually
supports Plaintiffs’ case.” (Doc. 80 at 4 n. 4.) For instance, the Plaintiffs note that the
“Defendants neglect to mention that the Planning Commission’s ‘request for a secondary access
road for emergency vehicle access’ was granted by Plaintiffs, who amended their preliminary
plat to include the requested access road after the January 2013 meeting.” (Id. (citing Doc. 73-4
at 21).) Further, the Defendants “neglect to mention” that the Planning Commission staff
recommended that the project be approved. (Doc. 80 at 4 n. 4 (citing Doc. 73 at 2 n. 5).)
Nevertheless, the Defendants’ denied Plaintiffs’ preliminary plat application in April of 2013.

19

2. The Standard for Substantive Due Process Claims
The first issue that must be addressed is the appropriate standard. The Fifth Circuit has
explained:
When we review a substantive due process claim, we pursue “either of two
analytical tracks. A regulatory decision can be legislative or it can be adjudicative,
and it will be reviewed differently depending on which category it is placed into.”
Shelton v. City of College Station, 780 F.2d 475, 479 (5th Cir. 1986); see also
Vulcan Materials Co. v. City of Tehuacana, 238 F.3d 382, 388 (5th Cir. 2001)
(citing Shelton, 780 F.2d at 479–84). Under the adjudicative model, “actions by
state officials are tested by historical facts and ‘adequate evidence found within a
defined record.’ ” Mahone v. Addicks Util. Dist. of Harris Cnty., 836 F.2d 921,
934 (5th Cir. 1988) (citing Shelton, 780 F.2d at 479). As such, a court “using the
adjudicative model must focus on what actually motivated the conduct.” Id. In
contrast, if the action is evaluated under the legislative model, the court asks only
whether there was “a conceivable factual basis for the specific decision made?”
Shelton, 780 F.2d at 479. “In practical terms, therefore, evidence that an official
was motivated by an illegitimate purpose when he took an action cannot, under
the legislative model, invalidate the official's action. Instead, if a court is able to
hypothesize a legitimate purpose to support the action, the action must be treated
as valid.” Mahone, 836 F.2d at 934.
Bush v. City of Gulfport, Miss., 454 F. App'x 270, 276 (5th Cir. 2011). Thus, the correct standard
turns on whether the Planning Commission’s decision about a preliminary plat is legislative or
adjudicative.
The Court finds that it is adjudicative. In Homeowner/Contractor Consultants, Inc. v.
Ascension Parish Planning and Zonning Commission, 32 F. Supp. 2d 384 (M.D. La. 1999), this
Court directly addressed the present question in the context of whether to grant individual
commissioners absolute immunity. After reviewing case law from the Supreme Court and First
Circuit, the Court cited the test articulated in Hughes v. Tarrant County Texas, 948 F.2d 918 (5th
Cir. 1991), which stated:
The first test focuses on the nature of the facts used to reach the given decision. If
the underlying facts on which the decision is based are “legislative facts,” such as
the “generalizations concerning a policy or state of affairs,” then the decision is
20

legislative. If the facts used in the decisionmaking are more specific, such as those
that relate to particular individuals or situations, then the decision is
administrative. The second test focuses on the “particularity of the impact of the
state action.” If the action involves establishment of a general policy, it is
legislative; if the action “single[s] out specifiable individuals and affect[s] them
differently from others,” it is administrative. [Cutting v. Muzzey, 724 F.2d 259,
261 (1st Cir. 1984) (citation omitted).]
Homeowner/Contractor, 32 F. Supp. 2d at 389 (citing Hughes, 948 F.2d at 920). Applying this
test, the Homeowner/Contractor court concluded:
[T]he decision by the Planning Commission not to approve the preliminary plat
was not one with broad policy implications. The facts used in the decisionmaking
were specific and related only to the plaintiff. The Planning Commission's action
involved enforcement of existing regulations and did not establish general policy.
Thus, the Court finds that the decision by the members of the Planning
Commission to deny approval of the plaintiff's preliminary plat for the proposed
subdivision development was administrative in nature.
Id. While the Homeowner/Contractor court used the term “administrative” in its
immunity analysis, it later used this term synonymously with “adjudicative” in its due
process analysis. Id. at 391. Thus, this Court has already determined that the Planning
Commission’s decision to deny preliminary plat approval is adjudicative, and the Court
does not disagree with that conclusion.3
Accordingly, the Court will apply the standard for adjudicative decisions. “The
adjudicative mode of analysis asks not whether there was some conceivable rational basis for the
challenged decision, but requires a finding as to what actually motivated the decision, and then
asks whether this is rationally related to a legitimate governmental purpose.” Vineyard Inv., LLC
v. City of Madison, Miss., 757 F. Supp. 2d 607, 617 (S.D. Miss. 2010), aff'd sub nom. Vineyard
Inv., L.L.C. v. The City Of Madison, Miss., 440 F. App'x 310 (5th Cir. 2011). After the actual

3

This Court also rejected an argument potentially relevant here; Louisiana Revised Statutes 33:101.1, which
“provides that the act of approving or disapproving a subdivision plat is declared a legislative function involving the
exercise of legislative discretion by a planning commission[,]” does not trump “Fifth Circuit jurisprudence[, which]
is dispositive[.]” Homeowner/Contractor, 32 F. Supp. 2d at 390 n. 35.

21

interest is identified, the Court applies “traditional rational basis review to the action.” Vineyard
Inv., L.L.C., 440 F. App’x at 314. The Court first determines whether the Defendants’ interest is
considered a legitimate governmental interest. Vineyard Investments, L.L.C., 440 F. App'x at
314. The Court then examines whether the Government action advanced its legitimate goal. Id.
As long as “the existence of a rational relationship” between the government action and the goal
“is at least debatable,” there is no constitutional violation. Id. (quoting FM Props., 93 F.3d at
175.)
3. The Evidence Presented
The Court now turns to the evidence presented by the parties to determine the true
purpose of the Government’s action. As stated above, at the January 22, 2013, public hearing,
four commissioners expressed the following concerns: Commissioner Price, about fill
mitigation/elevation and flooding; Commissioner Perret, about drainage and flooding;
Commissioner Tassin, about accessibility and traffic and about drainage and flooding; and
Commissioner Marien, about connectivity. (Doc. 62-2 at 6; Doc. 73-1 at 11.)
At his deposition, Price testified at length about the basis for his denying the project.
Price stated that he voted against the project because he “listened and heard the people who lived
on Hoo Shoo Too come forth and present direct evidence of the flooding and drainage issues that
they had experienced” there. (Doc. 73-4 at 22.) Price stated that he “lived in Baton Rouge for 40
years, so [he has] personal knowledge of Hoo Shoo Too Road. [He has] been out there at times
when it’s not flooded. [He’s] been out there when [he] couldn’t get all the way down to the end
of the road because it flooded.” (Id.) Price also said he heard information from other
developments brought before the Planning Commission involving Hoo Shoo Too Road. (Id.) He

22

was present at those other meetings and listened to arguments involving traffic and the danger of
traffic accidents and water-back up. (Id. at 23.)
Price further stated that the “drainage issues that [Plaintiffs’] engineers proposed -- and
I’m not an engineer -- sounded kind of corky to [him].” (Id. at 24.) He referenced pictures being
passed around at the hearing that “basically showed a sea, and [he] had grave concerns about
what another development out there would do with regard to drainage.” (Id.) Price also said he
was concerned about the fact that there were wetlands on the Plaintiffs’ property. (Id.) Price
stated that his “personal knowledge of draining out there, drainage out there, and experience led
[him] to question the impact study that had been presented by [Plaintiffs] with regard to how
they would handle drainage[.]” (Id. at 25.) He listened to what was presented at the hearing and
“saw evidence of flooding.” (Id.) He admitted that he could not recall seeing evidence of
technical data contradicting the drainage impact study provided by the Plaintiffs. (Id. at 25—26.)
Price reviewed one traffic study done by the Department of Public Works, but it was
done in connection with Hoo Shoo Too Road and not specifically for Mallard Trails. (Id. at 31.)
He also heard arguments about an access road. (Id.)
Price stated that he visited the Plaintiffs’ property; first he said there was nothing about
that visit that factored into his denial, but he later stated that he based his denial on “the fact of
where it was located on Hoo Shoo Too Road, the topography of the land[,] [and] . . . its relative
closeness to Bayou Manchac.” (Id. at 39.)
Price also testified about materials that are provided to the commissioners in connection
with his consideration of a preliminary subdivision plat. Specifically, the commissioners
received:
[T]he application that’s submitted by the developer to the Planning Commission
staff, and they work through all of their stuff. And then they either offer us an
23

opinion that says, we’ve received approval from DPW traffic or TPW sewer or
DPW drainage or whatever it is, and I would assume we probable have access to
those individual documents if we so choose to look at them and see what has been
submitted.
(Doc. 73-4 at 9—10.) That is, the commissioners get a “homework packet,” which is “basically
the application that’s submitted, and what [the commissioners] are going to look at in connection
with that.” (Id. at 9—10.) The commissioners have access to any other documents if they choose
to pursue them with the staff. (Id.)
If the commissioners have questions on issues, they “have the ability as a Planning
Commission member, to go back and ask the Planning Commission staff for additional
information.” (Id. at 14.) The staff in turn has other agencies like the Department of Public
Works to address the issues. (Id. at 14—15.) Here, the staff recommended approval. (Id. at 21.)
Price may have also spoken to individuals at the Department of Public Works with
various questions. (Id. at 17.) Price did not recall speaking with anyone at the city. (Id. at 37—
40.)
Price also testified that the Plaintiffs provided a drainage impact study that he reviewed
and that concluded that the Mallard Trails development “would have a minimal adverse impact
on drainage in this area based on the analysis requirements, Unified Development Code, and
Department of Public Works and is acceptable as proposed.” (Doc. 73-4 at 26—27.) He did not
recall whether he received any drainage impact studies or engineering report that opposed that
study or conflicted with it. (Id. at 27—28.)
Perret also testified at his deposition about why he voted against the project. When asked
directly, Perret stated:
In review of information that was provided, as well as testimony that had to be
done with traffic and flooding and, in particular, my concern had to do with the
building up of the elevations for the subdivision roads and the road that goes
24

across the wetlands that was built up from elevations, if I remember, 11 to 13 feet
all the way up to 21 to 22 feet in an area that was low and had flooding issues.
(Doc. 73-5 at 8.) Perret testified that he was provided with one document in particular that was
“a site plan that showed elevations and the proposed development.” (Id. at 8—9.) Perret said this
document concerned in that “in the elevations that were -- was a very -- was a low elevation of
10, 11, 12 feet coming in, building up to the elevation of 21 feet across a wetland and low areas
where flooding occurs.” (Id. at 9.) Perret admitted that he was not presented with “any technical
information related to this elevation issue that supported [his] concern about the flooding
issue[.]” (Id. at 10; see id. at 11.) Perrett said this issue was based on his “review of the project
that was being presented to the Planning Commission and for [him] to consider.” (Id.) He stated
he had no “background in dealing with these types of issues[.]” (Id.)
Ultimately, Perret’s primary reasons for voting against the project were flooding and
drainage. (Id. at 11.) However, he did state that there was “significant public opposition to this
particular project.” (Id. at 17.)
Perrett also testified about the Enhanced Drainage Impact Study. (Id. at 15.) The
conclusion of that document was that “this development will have minimal adverse impact on
drainage in this area based on the analysis requirements of the [UDC] and Department of Public
Works, and is acceptable as proposed.” (Id. at 15—16.) Perret, like Price, did not recall being
provided with any reports or technical information that contradicted the findings of that report.
(Id. at 16.)
Perret discussed the elevations at the Planning Commission public hearings, and he had a
conversation with Shannon Dupont “to kind of help [him] understand the map better and the . . .
document.” (Id. at 9.) Dupont is with the Department of Public Works. (Id.) Perret
acknowledged that the Department of Public Works recommended approval of the project. (Id. at
25

10.) Perret discussed with Dupont “the plat, . . . the elevations, . . . [and] drainage issues from
surrounding properties that drain onto this property[.]” (Id. at 10.)
Perret also testified:
Q:

There’s Mallard Roost Avenue. And what change would have needed to occur
with respect to that?

A:

It’s my opinion, as I reviewed it, that this being built up to 21-foot, when all these
other elevations are 10, 12, 11, I had a concern of this that there would be
flooding because of this road now blocking water coming out, draining to
Manchac.

Q:

And that’s just based on your just general knowledge –

A:

General –

Q:

-- of drainage and elevation issues?

A:

Just reviewing this document and applying the knowledge that I have to it, and
what I believe that a concern would have been – that I would have with this
layout, and based off the information that I heard in the meeting.

(Id. at 18.)
Laurie Marien testified at her deposition about her reasons for rejecting the project. She
stated that she did not speak to anyone who was not present at the meeting about the traffic
issues that came up in connection with the project. (Doc. 73-6 at 10.) She also did not recall
speaking to anyone prior to the meeting about the project, and she did not recall any
representative of the City presenting any engineering or technical information related to the
project. (Id. at 11.) She also did not recall whether she received the Enhanced Drainage Impact
Study or whether it was something she considered. (Id. at 12.) She did recall there being “some”
public opposing from neighboring landowners.” (Id.) She said she did not recall the “details of
this application, just the general stuff.” (Id. at 14.) She could not specifically answer why she
voted no to the project:
26

Q:

As we sit here today, can you tell me why you voted no on this project?

A:

I can’t tell you exactly why I voted no. It’s been two years. I’m sure that it had to
do with the overarching [sic]; like I said, the health, safety and welfare of the
neighbors, and there were some issues. Like I said, I know there had been a
major flooding event earlier in that year of ’13, and that was a big concern. And
the traffic was a big concern, but I can’t tell you exactly why I voted how I did.”

(Id. at 73-6 at 14—15.) She also did not recall receiving any documents or any specific technical
information related to traffic regarding this project; she may have, but she did not remember
receiving specific documents. (Id. at 26.) She did recall a “major flooding incident” that was “all
over the parish,” but it was not specific to that area. (Id. at 27.)
While Marien did not know of the reason why she voted no, she did state that a reason
was needed:
Q:

Do you believe you had the discretion to vote no if the developer met all of the
requirements of the UDC?

A:

No. There would have to be a reason why. You can’t just vote no. If somebody
meets all of the requirements, there would have to be a reason why you would
vote no. I wouldn’t vote no just because I didn’t like it, or they were going to
build, you know, small homes and neighbors wanted big fancy million dollar
homes. That’s not a reason to vote against it. It has to be one of those major
categories.

Q:

When you say “major categories,” you’re referring to traffic, drainage –

A:

Well, just like I said, the health, safety, and welfare. Was that – would that
subdivision negatively impact in one of those ways, the neighbors. It wouldn’t
just be a technical issue.

Q:

So if there were neighbors who said the traffic was too bad or there were drainage
issues, would that be enough of a reason for you to vote no on this project[?]

A:

No. There would have to be some kind of substantiating evidence or something.
I mean, people get up there and say all kinds of stuff.

(Doc. 73-6 at 15—16.)

27

Lastly, Price admitted that the Planning Commission voted to approve other subdivisions
in that same area since the Plaintiffs’ project. (Doc. 73-4 at 40.) Perret testified to the same.
(Doc. 73-5 at 13—14.)
4. Analysis
To reiterate, “[t]he adjudicative mode of analysis asks not whether there was some
conceivable rational basis for the challenged decision, but requires a finding as to what actually
motivated the decision, and then asks whether this is rationally related to a legitimate
governmental purpose.” Vineyard Inv., LLC, 757 F. Supp. 2d at 617. After the actual interest is
identified, the Court applies “traditional rational basis review to the action.” Vineyard Inv.,
L.L.C., 440 F. App’x at 314. The Court first determines whether the Defendants’ interest is
considered a legitimate governmental interest. Vineyard Investments, L.L.C., 440 F. App'x at
314. The Court then examines whether the Government action advanced its legitimate goal. Id.
As long as “the existence of a rational relationship” between the government action and the goal
“is at least debatable,” there is no constitutional violation. Id. (quoting FM Props., 93 F.3d at
175.)
Having carefully considered the law and the evidence in the record, the Court finds that
summary judgment is appropriate on this claim. In short, no reasonable juror would conclude
that the Planning Commission lacked a legitimate reason. That is, all reasonable jurors would
conclude that the reasons for the denial of the preliminary plat were the commissioners’ concerns
about issues like fill mitigation/elevation, flooding, and drainage. It is undisputed that these
were the issues specifically mentioned at the public hearing by the commissioners who voted
against the project. Moreover, Price testified at his deposition that he based his decision on,
among other things, the fact that he has seen flooding on Hoo Shoo Too Road, his opinion that

28

the Plaintiffs’ engineer’s discussion of drainage issues sounded “corky” to him, and the project’s
proximity to Bayou Manchac. Similarly, Perret testified that he based his decision on concerns
about the elevation of the project, which in part were based on a particular document. Perret also
said that he based his decision in part on testimony at the hearing, and it is uncontested that the
Plaintiffs’ engineer said at that hearing (1) that a significant portion of the project lies in the 100year flood plain and that the property was really close to Bayou Manchac, and (2) much of the
property and the adjoining property drains poorly. On top of all of this were the concerns
expressed by the public about these very issues. Having found that the reasons for the denial
were issues like fill mitigation/elevation, flooding, and drainage, the Court further finds that, as a
matter of law, these reasons were rationally related to legitimate governmental interests like
public health, safety, and the general welfare.
The Plaintiffs argue that the decision was arbitrary and capricious because they were
based solely on (1) public opposition and (2) subject concerns unsupported by technical
evidence. But the lack of technical or expert information does not automatically mean the
commissioners lacked legitimate concerns. Moreover, under the Plaintiffs’ logic, there would be
a substantive due process violation every time the Planning Commission acted without technical
or expert evidence or chose to reject an applicant’s expert. This is unsupported by the case law.
See FM Props., 93 F.3d at 174 (“ ‘[t]he power to decide, to be wrong as well as right on
contestable issues, is both privilege and curse of democracy.’ Ergo, ‘the due process clause does
not require a state to implement its own law correctly[, nor does] [t]he Constitution . . . insist that
a local government be right.’ ” (citations omitted)).
The Plaintiffs are correct that, in Christopher Estates, Inc. v. East Baton Rouge Parish,
413 So. 2d 1336 (La. App. 1 Cir. 1982), the Court found an arbitrary and capricious denial of a

29

plat in part on the fact that, as in the instant action, “no expert testimony was elicited at the
hearing as to whether the proposed plat would adversely affect the health, safety, or general
welfare of the public.” Id. at 1340. But this case also notes that “there was no evidence during
the public hearing presented to the commission that the proposed plat was unacceptable for
reasons relating to health or safety of the public.” Id.
Here, unlike Christopher Estates, Inc., the decision was based in part on evidence at the
hearing related to public health and safety. The above commissioners based their decisions in
part on (1) the fact that the commissioners disbelieved the testimony about drainage given by the
Plaintiffs' engineer at the public hearing, (2) pictures of flooding in the area presented at the
hearing, and (3) concerns about elevation which were gleamed from a particular document
furnished for the hearing. This does not even take into account the information gleaned from
other hearings, which is still “data presented” to the Planning Commission.
The Plaintiffs are also correct that they have presented evidence of other developments
being approved in the area. But the Defendants are correct that there is minimal evidence of the
similarities of these developments to the Plaintiffs’ project. Without more, the Plaintiffs cannot
create an issue of fact, even drawing inferences in their favor.
Accordingly, the Court grants the Defendants’ motion for summary judgment on this
issue. The Plaintiffs’ substantive due process claim is dismissed.
B. Procedural Due Process Claim
1. The Parties’ Arguments
a. The Defendants’ Memorandum in Support
As this Court previously explained, a procedural due process claim requires that the
Plaintiff “identify a life, liberty, or property interest protected by the Fourth Amendment.” (Doc.

30

36 at 22 (quoting Blackburn v. City of Marshall, 42 F.3d 925, 935 (5th Cir. 1995)).). The
Plaintiff must then “identify a state action that resulted in a deprivation of that interest.” (Id.
(quoting Blackburn, 42 F.3d at 935).)
Here, the Defendants attack the first requirement. The Defendants argue that the
Plaintiffs must first show a “ ‘legitimate claim of entitlement’ to the issuance of a license or
certificate (or in this case, approval of a preliminary plat).” (Doc. 62-1 at 15 (citing Yale Auto
Parts, Inc. v. Johnson, 758 F.2d 54, 58 (2d Cir. 1985)).) The Defendants maintain that this
question depends on “whether, absent the alleged denial of due process, there is either a certainty
or a very strong likelihood that the application would have been granted.” (Doc. 62-1 at 16.)
The Defendants assert that “compliance with the objective requirements of the UDC are
pre-conditions which must be met before a development can be considered for site plan approval,
and do not, as Plaintiffs argue, entitle the developer to said approval.” (Id.) The Defendants
argue that the Planning Commission must ensure that developments comply with “the general
public interest” and do not “create undue congestion of streets and traffic access or overcrowding
of land or overburden on public facilities such as transportation, sewage, drainage, schools,
parks, and other public facilities.” (Id.) The Plaintiffs’ compliance with the regulations merely
gave them a subjective expectancy, and the decision ultimately rested on the Planning
Commission’s “exercise of judgment.” (Id.)
The Plaintiffs were also not entitled to approval merely because the Planning
Commission staff recommended approval; the regulations do not require the Planning
Commission to follow this recommendation.
The Defendants conclude by stating:
Plaintiffs’ allegation that their preliminary plat was denied consideration by a
public body that will apply the objective criterion and standards for subdivision
31

approval pursuant to the provisions of the UDC is absurd. . . . The evidence
presented by Defendants in connection with this Motion is replete with legitimate,
unbiased, and sound reasoning that more than fulfilled the stated objectives for
subdivision approval.
(Doc. 62-1 at 17.)
b. The Plaintiffs’ Opposition
The Plaintiffs only briefly respond to the Defendants’ argument on this issue. They state
that Defendants contend there is no “legitimate claim of entitlement” to approval “because such a
‘claim of entitlement’ requires ‘either a certainty or a strong likelihood that the application could
have been granted.’” (Doc. 73 at 12.) The Plaintiffs then state, “Even though it is undisputed
that all requirements imposed by law on Plaintiffs were met, Defendants assert that Louisiana
law does not establish such a ‘strong likelihood’ that the application could have been granted.”
(Id.) The Plaintiffs then quote the Court’s prior ruling on the Defendants’ motion to dismiss:
Plaintiffs have stated that they complied with all laws, and conformed to
additional demands from Defendants. Assuming this is true, and considering
Louisiana’s policy that land-use in these cases are presumptively valid, there was
at least a “very strong likelihood” that Plaintiffs’ application would be
approved. Therefore, Plaintiffs had a legitimate claim to entitlement to approval
of their preliminary plat, regardless of Defendants’ discretion to grant or deny
preliminary plat approval.
(Doc. 73 at 12 (quoting Doc. 36 at 25 (citations omitted) (emphasis added).)
c. The Defendants’ Reply
The Defendants respond that “Plaintiffs did not have a ‘legitimate claim of entitlement’
to preliminary plat approval because La. R.S. 33:101.1 provides Defendants with discretion
when approving or disapproving a subdivision plat.” (Doc. 76 at 7 (emphasis in original).)
Relying on a federal Fourth Circuit case, the Defendants assert that property owners have a
legitimate claim of entitlement to approval if “the local agency lacks all discretion to deny

32

issuance of the permit or to withhold its approval.” (Id. (citing Scott v. Greenville Cty., 716 F.2d
1409, 1418—21 (4th Cir. 1983) (emphasis added)).) Here, the Defendants had to submit their
application to discretionary review by the Planning Commission, and this “vitiates their claim to
entitlement.” (Doc. 76 at 7—8.) According to the Defendants, the Plaintiffs were not entitled to
preliminary plat approval solely because they met all requirements and obtained a positive
recommendation from the Planning Commission staff. The Defendants cite to a Second Circuit
case purportedly holding that, “when a local regulator’s discretionary decision to deny an
application is not arbitrary or capricious, the plaintiff will usually be deemed not to have a
sufficient entitlement to constitute a protected property interest.” (Doc. 76 at 8 n. 12 (citing RRI
Realty Corp. v. Inc. Vill. Of Southampton, 870 F.2d 911 (2d 1989)).)
The Defendants note that the cases relied upon in the Court’s earlier ruling on the motion
to dismiss are state law cases that “do not establish the ‘protected property interested created
under state or local law’ as contemplated by federal jurisprudence and do not employ the same
standard as what has been established under federal law.” (Id. at 7 n. 11.) The Defendants argue
that the “state cases reviewed the property owner’s alleged deprivation based on a ‘use by right’
and used a strict scrutiny standard. “ (Id.) The Defendants claim this standard is not used in
federal due process cases. (Id. (citing Urban Hous. of Am., Inc. La. v. City of Shreveport, No. 090317, 2013 WL 587900, at n. 6 (W.D. La. Feb. 13, 2013).
Lastly, Defendants maintain that, even if they did have a legitimate claim to entitlement,
they suffered no deprivation of that interest. According to the Defendants, the Plaintiffs received
all the process that was due; they had a hearing, an opportunity to present evidence, and a fair
and impartial consideration of their application.

33

d. The Plaintiffs’ Surreply
The Plaintiffs’ surreply states that the Defendants’ reply is nothing more than a motion to
reconsider the Court’s prior ruling on the motion to dismiss. The Plaintiffs argue that the
Defendants do not satisfy the legal grounds for a motion to reconsider. The Plaintiffs assert that
the “Court should decline to reconsider its prior well-considered ruling and reject the new
arguments which rely upon such reconsideration.” (Doc. 80 at 2.)
2. Analysis
Again, “[i]n a section 1983 cause of action asserting a due process violation, a plaintiff
must first identify a life, liberty, or property interest protected by the Fourteenth Amendment and
then identify a state action that resulted in a deprivation of that interest.” Blackburn, 42 F.3d at
935. The Fifth Circuit has explained:
In order for a person to have a property interest within the ambit of the Fourteenth
Amendment, he “must have more than an abstract need or desire for it. He must
have more than a unilateral expectation of it. He must, instead, have a legitimate
claim of entitlement.” Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct.
2701, 2709, 33 L. Ed. 2d 548 (1972). Property interests are not created by the
Constitution; rather, they stem from independent sources such as state statutes,
local ordinances, existing rules, contractual provisions, or mutually explicit
understandings. [Perry v. Sindermann, 408 U.S. 593, 599-601, 92 S. Ct. 2694,
2699-2700, 33 L. Ed. 2d 570 (1972)]. However, it is clear that “the sufficiency of
the claim of entitlement must be decided by reference to state law.” Bishop v.
Wood, 426 U.S. 341, 344, 96 S. Ct. 2074, 2077, 48 L. Ed. 2d 684 (1976) (footnote
omitted).
Id. at 936-37 (citation omitted).
Furthermore, “[a]lthough the underlying substantive interest is created by ‘an
independent source such as state law,’ federal constitutional law determines whether that interest
rises to the level of a ‘legitimate claim of entitlement’ protected by the Due Process Clause.”
Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 757, 125 S. Ct. 2796, 2803—04, 162 L.
Ed. 2d 658 (2005) (emphasis in original). The Supreme Court has recognized that “a benefit is
34

not a protected entitlement if government officials may grant or deny it in their discretion.” Id.,
545 U.S. at 756, 125 S. Ct. at 2803.
Louisiana Revised Statutes § 33:101.1 provides in pertinent part:
Except as otherwise provided in this Subpart, the act of approving or
disapproving a subdivision plat is hereby declared a legislative function involving
the exercise of legislative discretion by the planning commission; based upon data
presented to it; provided that any subdivision ordinance enacted by the governing
authority of a parish or municipality or the acts of the planning commission, or
planning administrator shall be subject to judicial review on the grounds of abuse
of discretion, unreasonable exercise of police powers, an excessive use of the
power herein granted, or denial of the right of due process.
(emphasis added). Thus, as the Court recognized in its earlier ruling on the Defendants’
motion to dismiss, the Planning Commission has discretion, but it is limited in that it must
be “based upon data presented to it” and it must, among other things, comport with due
process.
In Homeowner/Contractor Consultants, this Court cited with approval the standard
announced in Yale Auto Parts v. Johnson, 758 F.2d 54, 59 (2d Cir. 1985) regarding the property
interest in issuances of licenses and certificates by local land regulators. 32 F. Supp. 2d at 391—
92. Under that standard, in order to have a legitimate claim of entitlement to the issuance of a
license or certificate, there must have been “either a certainty or a very strong likelihood that the
application would have been granted.” Id. (citation omitted). The Homeowner/Contractor court
also recognized:
If federal courts are not to become zoning boards of appeals . . . the entitlement
test of Yale Auto Parts—“certainty or a very strong likelihood” of issuance—must
be applied with considerable rigor. Application of the test must focus primarily on
the degree of discretion enjoyed by the issuing authority, not the estimated
probability that the authority will act favorably in a particular case . . . The
“strong likelihood” aspect of Yale Auto Parts comes into play only when the
discretion of the issuing agency is so narrowly circumscribed that approval of a
proper application is virtually assured; an entitlement does not arise simply
because it is likely that broad discretion will be favorably exercised.
35

32 F. Supp. 2d 392 (quoting RRI Realty Corp. v. Inc. Vill. of Southampton, 870 F.2d 911, 918
(2d Cir. 1989)). The Homeowner/Contractor Consultants further explained:
A claim of entitlement arises, for these purposes, when a statute or regulation
places substantial limits on the government's exercise of its licensing discretion.
Thus, the holder of a land use permit has a property interest if a state law or
regulation limits the issuing authority's discretion to restrict or revoke the permit
by requiring that the permit issue upon compliance with terms and conditions
prescribed by statute or ordinance.
Id. (quoting Bituminous Materials v. Rice County, 126 F.3d 1068, 1070 (8th Cir.1997).
Thus, the central question here is whether, under state law, the Planning Commission did
in fact have discretion to deny the preliminary plat; that is, was the Planning Commission’s
“discretion . . . so narrowly circumstanced that approval” was a “certainty,” a “very strong
likelihood,” or “virtually assured”? The Plaintiffs argue that this was decided in the earlier
ruling on the motion to dismiss, and the Defendants urge that it was not and that, to the extent it
was, the earlier ruling was incorrect.
Having carefully considered the law and facts in the record, the Court finds that its earlier
ruling does not control the outcome of this ruling. That is, despite the Court’s decision on the
Defendants’ motion to dismiss, the Defendants are still entitled to summary judgment here.
In its earlier ruling on the motion to dismiss, the Court found:
Louisiana recognizes that when a landowner complies with all applicable
zoning and conforms to every modification imposed, the landowner’s landuse is
presumptively valid and certificates and licenses should be approved. See
D’Argent Properties LLC v. City of Shreveport, 44,457 (La. App. 2 Cir. 6/24/09),
15 So. 3d 334, 340, writ denied, 2009-1726 (La. 11/6/09), 21 So.3d 308; See also
Urban Housing of America, Inc. v. City of Shreveport, 44,874 (La. App. 2 Cir.
10/28/09), 26 So. 3d 226, 231-32, writ denied, 2010-0026 (La. 4/23/10), 34 So.3d
269.
Plaintiffs have stated that they complied with all laws, and conformed to
additional demands from Defendants. (R.Doc. 1-2, ¶ 10-11). Assuming this is true,
and considering Louisiana’s policy that land-use in these cases are presumptively
valid, there was at least a “very strong likelihood” that Plaintiffs’ application
36

would be approved. Therefore, Plaintiffs had a legitimate claim to entitlement to
approval of their preliminary plat, regardless of Defendants’ discretion to grant or
deny preliminary plat approval.
(Doc. 36 at 25.) In essence, the parties dispute in their motion whether the rule from D’Argent
and Urban Housing controls.
The Court finds that this question must be determined in light of GBT Realty Corp. v.
City of Shreveport, 50,104 (La. App. 2 Cir. 9/30/15), 180 So. 3d 458 writ denied, 2015-2002 (La.
1/8/16); 184 So. 3d 693, which is a case rendered by the Louisiana Second Circuit after D’Argent
and Urban Housing and after this Court rendered its earlier ruling on the motion to dismiss.
GBT Realty provides guidance in how to interpret D’Argent and Urban Housing. GBT Realty
also demonstrates how the Planning Commission had discretion to act in this case, thereby
defeating the Plaintiffs’ due process claim.
Before turning to GBT Realty, the Court will summarize Urban Housing, which contains
a discussion of D’Argent. In Urban Housing, the plaintiff appealed the action of the city council
in denying approval of a subdivision plan. Id., 26 So. 3d at 227. The plaintiff developer
consulted with the planning commission officials, incorporated all their suggested into the plan,
and complied with all zoning and use ordinances. Id. at 228. The plan was approved by the
planning commission, but the city council later overturned the decision. Id.
At trial, “[a]ll agreed that the second subdivision plan met all zoning and use criteria.” Id.
The city argued that the city code and La. Rev. Stat. 33:101.1 gave them broad powers and
discretion in approving of the proposed subdivision. Id. at 229. A resident testified who had
voiced opposition. Id. The trial court issued an opinion that found that the city had “virtually
boundless discretion” that was not violated in the case. Id.

37

On appeal, the plaintiff’s first assignment of error was that the city had acted arbitrary
and capriciously in denying the subdivision plan when they had complied with all applicable
ordinances and when they had already approved two earlier phases of the subdivision. Id. at 230.
The plaintiff contended they were denied the “use by right of its own property.” Id. The Plaintiff
argued that, to deny a use by right, the defendants must satisfy strict scrutiny. Id. The defendant
responded by relying on the council’s legislative discretion under the city ordinance and La. Rev.
Stat. 33:101.1.
The Louisiana Second Circuit agreed with the plaintiff. The appellate court explained:
In the recent case of D'Argent Properties LLC v. City of Shreveport, supra, this
court considered the analogous situation of a landowner who applied for site plan,
completely in compliance with all zoning ordinances, to build a drive-in
restaurant. In that case, the MPC had approved the site plan, but on appeal the city
council denied it, with members citing “the betterment of the area” and “the
majority of the citizens.” On judicial review, the district court upheld the denial of
the fully compliant site plan, citing the “broad legislative prerogative and
decision-making authority” conferred by King v. Caddo Parish Comm'n and Prest
v. Parish of Caddo, supra.
On appeal, however, this court found those authorities inapplicable:
[W]e distinguish King v. Caddo Parish Comm'n, supra, Prest v. Parish of
Caddo, supra, and several other cases cited in brief, on a factual basis.
Those cases all involved requests for variances, special exceptions or
rezoning of a particular parcel. When an owner seeks to alter the
established zoning, the commission or governing body must apply its great
discretion and, as a result, the courts will not “take issue with the council.”
King v. Caddo Parish Comm'n, supra. The instant case, by contrast, is the
res nova situation in which an owner seeks a use by right, in compliance
with the applicable zoning, conforming to every modification imposed,
and approved by the commission. This use by right should be
presumptively valid and approved. For the council to deny such a use, the
burden on the city is much higher. On judicial review, the council's
decision to deny a use by right is subject to strict scrutiny, not the normal
standard of broad discretion applied to variance cases. On this record, the
city council did not meet its heightened burden of refuting the owners' use
of right.
Id. at p. 5, 15 So.3d at 340 (footnote omitted).
38

Although the matter was res nova for Louisiana, this court cited Hessee Realty
Inc. v. City of Ann Arbor, 61 Mich.App. 319, 232 N.W.2d 695 (1975), and
Bateson v. Geisse, 857 F.2d 1300 (9 Cir. 1988), which applied similar reasoning
and reached the same conclusion. This court was unable to find any contrary
authority.
The instant case is analogous to D'Argent. Like the landowner applying for
approval of a site plan that complied with all applicable zoning requirements, [the
plaintiff] has applied for approval of a subdivision plan that complies with all
applicable zoning and use requirements. Despite the sweeping language of R.S.
33:101.1 and Code § 82–41(a), which would appear to give the city virtually
boundless discretion to grant or deny an application, we will apply, as in
D'Argent, strict scrutiny to the decision to deny a fully compliant application.
Id. at 231 (footnote omitted). The appellate court concluded:
In short, some of the reasons offered for denying the instant subdivision plan have
no support in the record, and others, while factual, do not satisfy the constitutional
requirement under [La. Const.] Art. 6, § 17, of “uniform procedures established
by law” or meet the heightened burden of denying a fully compliant applicant,
recognized in D'Argent, supra. We are also guided by the principle that zoning
and land use regulations are construed in favor of the owner's proposed use of his
own property. Wright v. DeFatta, 244 La. 251, 152 So.2d 10 (1963); D'Argent
Properties LLC v. City of Shreveport, supra; Residents of Shenandoah Estates
Subd. v. Green Trails LLC, 2005–1331 (La.App. 1 Cir. 6/9/06), 938 So.2d 1027,
writ denied, 2006–2098 (La.12/8/06), 943 So.2d 1095. On this record, we are
constrained to find the [planning commission] and city council abused their
discretion in denying approval of Urban Housing's fully compliant subdivision
plan.
Id. at 232. Thus, Urban Housing seems to suggest, like the Court found in its earlier ruling, that
the Planning Commission lacked unlimited or broad discretion.
But Urban Housing must be read in light of the later GBT Realty, which provided
guidance for interpreting it and more directly addresses the question of the Planning
Commission’s discretion for purposes of imposing liability. In GBT Realty, the Louisiana
Second Circuit affirmed the rejection of a tort claim for denial of a building site plan. In GBT
Realty, the plaintiffs were property developers who wanted to build a Dollar General store in

39

Shreveport. Id. at 459. The plaintiffs submitted plans to the city planning commission, and the
staff “found no problems with the submitted plans.” Id. at 460.
A public hearing was held with the planning commission, which “expressed concerns
about the similar store in operation across the street and about the building façade and the
proposed landscaping.” Id. The vote was deferred so that the developers could address those
issues. Id.
The plaintiffs later returned before the planning commission with an improved plan that
included an upgraded façade and landscape plan. Id. The planning commission ultimately
rejected the plan because it (1) did not comply with recently proposed zoning suggestions to the
city’s master plan, and (2) the “consensus was that the site was too small to accommodate the
proposed plan.” Id.
The city council unanimously upheld the planning commission’s decision. One
councilman said that “the size of the property vis-à-vis the proposed use was a big problem” Id.
He said that residents made some valid points. Id.
The plaintiffs later appealed and asked the district court to approve of the initial site plan.
Id. The district court overturned the council’s decision. Id.
The plaintiffs filed suit against the city and the planning commission. They claimed that
the proposed site complied with the zoning law and that the stated reasons were “contrived.” Id.
at 461. At trial, the plaintiffs’ engineer testified that “the proposed store was a use by right under
the zoning for the property and that other Dollar General stores had been approved with the same
basic design.” Id. The city’s witnesses acknowledged that there were no violations of city
ordinances. Id.

40

The district court concluded that the plaintiffs could not recover because of Louisiana
Revised Statute 9:2798.1, which provides in part that “Liability shall not be imposed on public
entities or their officers or employees based upon the exercise or performance or the failure to
exercise or perform their policymaking or discretionary acts when such acts are within the course
and scope of their lawful powers and duties.” La. Rev. Stat. § 9:2798.1(B). The trial court
further found that “despite the use by right zoning for the property, the City had discretion to
disapprove the site plan, particularly in light of the provisions of the Shreveport City Code
governing the approval process that ensure a safe, efficient, attractive and well-ordered
community.” Id. The court concluded that the “the City merely exercised its discretion under the
applicable rules and did so in light of the policymaking considerations cited by Councilman
Jenkins.” Id.
The GBT Realty thoroughly reviewed D’Argent and Urban Housing, as well as one
additional case. The GBT Realty court explained that, “[a]lthough the instant case is a tort action
and not a disapproval vel non case, jurisprudence involving disapproval of use by right is
informative to determine the City’s exposure to tort liability.” Id. at 462. After this thorough
review, the GBT Realty court concluded:
What these cases demonstrate is that a municipality must abide by its own zoning
ordinances and apply them consistently through the site and subdivision plan
approval process without “looking at each situation on a purely ad hoc political
basis.” [(citation omitted)] However, importantly, the cases further establish
that a municipality has the discretion to act within the ambit of the zoning
ordinances so long as that discretion is not exercised arbitrarily and
capriciously. A municipality retains the discretion to deny a site or subdivision
plan submitted in accordance with use by right zoning, but that denial is subject to
strict scrutiny and the zoning ordinances and actions will be construed in favor of
the use proposed by the owner.
Thus we reject the appellants' contention that the City had “no” discretion to
deny their site plans for the construction of the Dollar General store.

41

Id. at 463 (emphasis added). Turning to the facts, the Louisiana Second Circuit determined that
the Plaintiffs were not entitled to recover:
The record supports the district court's conclusion that the City's action in this
case, although ultimately overturned, was a discretionary act genuinely based in
the City's attempt to ensure that the use of the property comported with the public
interest in a safe and well-ordered community. Unmistakably, some of the City's
proposed justifications for denying the plans were improper; for example, the
plans' failure to comply with potential future land use rules was never a proper
consideration. The City—again—failed to give the proper respect to the use by
right zoning for this property.
However, the City had some discretion in the choice to approve the site plans, and
that choice was based in part upon various reasonable grounds such as the plans'
provision for access into and out of this type of store and the detrimental effect on
traffic, and thus public safety, that the proposed access allowed. The subsequent
judicial determination that these concerns were inadequate to deny the plan does
not equate to a finding that the City's action based on those concerns was “not
reasonably related to the legitimate governmental objective for which the
policymaking or discretionary power exists.” Likewise, the district court's
conclusion that the City's actions were related to its legitimate objectives and not
misconduct was, on this record, not plainly wrong. In this case, the store tenant,
Dollar General, itself did not approve the site plan after it had been approved by
the district court; instead, the retailer asked the plaintiffs to change the site plan's
proposed access to the property prior to agreeing to a final plan. Clearly the
access issue was a genuine concern for all of the parties here.
In no way is this conclusion intended to diminish the strict scrutiny that must be
given to the disapproval of use by right site plans upon direct review. However,
recovery of tort damages against a public entity, even for a wrongly denied use by
right case, requires proof of wrongdoing not found in this case.
Id. at 464—65.
While slightly distinguishable, the Court finds GBT Realty instructive. GBT Realty
specifically recognizes that Urban Housing ultimately “establish[es] that a municipality has the
discretion to act within the ambit of the zoning ordinances so long as that discretion is not
exercised arbitrarily and capriciously.” Id. at 463. As in GBT Realty, this Court has already
determined in the above substantive due process section that the Planning Commission did not

42

act arbitrarily and capriciously in its denial of the preliminary plat. Thus, as a matter of state
law, the Planning Commission did have discretion to deny the Plaintiffs’ preliminary plat.
Given that discretion, the Plaintiffs cannot prevail on their due process claim. First, they
cannot demonstrate that there was a “very strong likelihood” of approval. Again, as this Court
has explained:
The “strong likelihood” aspect of Yale Auto Parts comes into play only when the
discretion of the issuing agency is so narrowly circumscribed that approval of a
proper application is virtually assured; an entitlement does not arise simply
because it is likely that broad discretion will be favorably exercised.
Homeowner/Contractor Consultants, 32 F. Supp. 2d 392 (quoting RRI Realty Corp. v. Inc. Vill.
of Southampton, 870 F.2d 911, 918 (2d Cir. 1989)). As demonstrated above in the substantive
due process section, the Plaintiffs have not demonstrated that approval was “virtually assured.”
Second, the “strong likelihood” standard is merely intended to answer the larger question
of whether there was discretion. See Town of Castle Rock, Colo., 545 U.S. at 756, 125 S. Ct. at
2803 (“a benefit is not a protected entitlement if government officials may grant or deny it in
their discretion.”). Here, GBT Realty demonstrates that, as a matter of state law, the Planning
Commission had discretion to deny the preliminary plat under the circumstances. For this
additional reason, the Plaintiffs have no property interest, and their due process claim fails. See
RRI Realty Corp., 870 F.2d at 918 (“When a local regulator's discretionary decision to deny an
application is not arbitrary or capricious, the plaintiff will usually be deemed not to have a
sufficient entitlement to constitute a protected property interest.”).
This ruling is also consistent with the Court’s earlier ruling on the motion to dismiss. In
the Plaintiffs’ Petition, they stated that the “individual commissioners all voted against approving
the Preliminary Plat using criteria that is contrary to law” and the Planning Commission’s
“reason for . . . denial was on account of the opposition to the Preliminary Plat by local
43

landowners who desired for the Property to remain undeveloped.” (Doc. 1-2 at 5.) They further
alleged that the rejection was “on grounds of public outcry.” (Id. at 11.)
At the motion to dismiss stage, the Court was required to assume the truth of these
allegations. Based on those allegations, the Court properly determined that the Planning
Commission lacked discretion and that there was a very strong likelihood the preliminary plat
would be approved.
The difference here is that the Defendants’ motion must be decided on the factual record
submitted by the parties. As discussed above in the substantive due process section, here the
record demonstrates that the Planning Commission did in fact base its decision on legitimate
reasons and on data submitted at this hearing and others. Thus, while the motion to dismiss may
have been properly denied because of the allegations of the Petition, here the record
demonstrates that, in fact, the Planning Commission did have discretion and that approval was
not a “certainty” or “virtually assured.”
In sum, for the above reasons, the Court finds that summary judgment is appropriate on
this issue. Accordingly, the Plaintiffs’ procedural due process claim is dismissed with
prejudice.4
C. Ripeness of Federal and State Takings Claims
1.The Parties’ Arguments
a. The Defendants’ Memorandum in Support
The Defendants claim that “[a] takings claim under the Fifth Amendment to the United
States Constitution and Article I, § 4 of the Louisiana Constitution is not ripe until the claimant
has unsuccessfully attempted to obtain just compensation through the procedures provided by the

4

Given the Court’s holding, it need not address whether the second due process requirement (deprivation) was
satisfied.

44

state for obtaining such compensation.” (Doc. 62-1 at 4 (citing Williamson Cty. Reg’l Planning
Comm’n v. Hamilton Bank, 473 U.S. 172, 193—94, 105 S. Ct. 3108, 3120, 87 L. Ed. 2d 126
(1985)).)
The Defendants correctly assert that, under Fifth Circuit law, “[a] takings claim is not
ripe until (1) the relevant governmental unit has reached a final decision as to what will be done
with the property and (2) the plaintiff has sought compensation through whatever adequate
procedures the state provides.” Sandy Creek Inv'rs, Ltd. v. City of Jonestown, Tex., 325 F.3d 623,
626 (5th Cir. 2003).
The Defendants argue that, under the first prong, a case is not ripe (1) “when a case
involves a matter that has not been finally decided[,]” and (2) “when the property owner has
‘ignored or abandoned some relevant form of review or relief, such that the taking decision
cannot be said to be final.’ ” (Doc. 62-1 at 4 (quoting Urban Developers, LLC v. City of Jackson,
468 F.3d 281, 293 (5th Cir. 2006)).) According to the Defendants, the Plaintiffs here have
ignored the Louisiana Administrative Procedure Act procedure set forth in La. Rev. Stat.
49:964(G). The Defendants contend that the Plaintiffs failed to avail themselves of state law
remedies, so the matter is unripe.
The Defendants also state that, under the second prong, “a movant must . . . show that
compensation for the alleged taking has duly been sought and denied via all available
administrative procedures.” (Doc. 62-1 at 5 (citing Williamson Cty., 473 U.S. at 186—87).) The
Defendants assert that, “[i]f a state provides an adequate procedure for seeking just
compensation, the property owner cannot claim a violation of the Just Compensation Clause until
it has used the procedure and been denied just compensation.” (Doc. 62-1 at 5—6 (citing
Williamson Cty., 473 U.S. at 186—87).) According to the Defendants, the “Fifth Circuit has

45

interpreted this requirement as meaning that a plaintiff asserting a takings claim must first
‘present its inverse condemnation action to the state court in a posture such that the state court
could rule on [the] claim,’ before coming to federal court.” (Doc. 62-1 at 6 (quoting Liberty Mut.
Ins. Co. v. Brown, 380 F.3d 793, 798 (5th Cir. 2004)).)
Similarly, the Louisiana Supreme Court has recognized an inverse condemnation action
under Louisiana law. According to the Defendants, the Plaintiffs must use this procedure before
coming to federal court.
The Defendants then argue:
Notably, the record reflects that the Plaintiffs in this matter did, in fact, file an
inverse condemnation claim in state court in their original petition. [(Doc. 1-2 at
9.)] However, the case was removed to federal court by Defendants.
Nonetheless, the federal takings claim will not be ripe unless and until Plaintiffs
are denied just compensation on that state claim for inverse condemnation.
Defendants’ choice to remove the inverse-condemnation action does not waive
the subject-matter jurisdiction aspect of ripeness.” (Doc. 62-1 at 6 (citations
omitted).) Plaintiffs in this matter failed to request remand of their takings claim.
[(citation and footnote omitted).] Because Plaintiffs have not exhausted the
available state remedies first, its § 1983 claim under the Fifth Amendment is not
ripe as a matter of law.
(Doc. 62-1 at 6.)
b. The Plaintiffs’ Opposition
The Plaintiffs argue that “[t]he Williamson County ripeness requirement is prudential, not
jurisdictional, and thus may be waived.” (Doc. 73 at 3 (citations omitted).) Further, the Plaintiffs
argue that this “ripeness requirement does not apply to actions brought in state court, since a
state court may hear ‘simultaneously a plaintiff’s request for compensation under state law and
the claim that, in the alternative, the denial of compensation would violate the Fifth Amendment
of the Federal Constitution.’ ” (Doc. 73 at 4 (citation omitted).) Plaintiffs state that this is
exactly what they did when they filed suit in state court.
46

The Plaintiffs also note that the Defendants are wrong to say that they could have sought
review of “agency” action under La. Rev. Stat. 49:964. According to the Plaintiffs, “this
provision does not apply to the decisions of local governmental bodies like the” Planning
Commission. (Doc. 73 at 4 n. 18 (emphasis in original) (citing La. Rev. Stat. 9:951(2); Brossette
v. Alcoholic Beverage Control Bd., 1994-0781 (La. App. 1 Cir. 5/5/95); 655 So. 2d 536, 538).)
The Plaintiffs argue they “pursued the correct procedural course by instituting the present
action.” (Id.)
The Plaintiffs thus contend:
Plaintiffs’ petition, as originally filed in state court, contained a takings claim
which was indisputably ripe. The subsequent removal of the case did not
magically render that claim “unripe;” rather, by removing the case to a federal
forum, Defendants waived any challenge that might have existed under
Williamson County to the ripeness of the claim. As courts have recognized,
Defendants cannot remove to federal court and then (years later no less) use their
removal as grounds for a ripeness argument.
(Doc. 73 at 4 (footnotes omitted).)
c. The Defendants’ Reply
The Defendants reply that the “Supreme Court has determined that when a ripeness
question in a particular case is prudential, it may be raised on the Court’s own motion, and
‘cannot be bound by the wishes of the parties.’ ” (Doc. 76 (quoting Regional Rail Reorganization
Act Cases, 419 U.S. 102, 138, 95 S. Ct. 335, 356, 42 L. Ed. 2d 320 (1974)).) The Defendants
argue they are not manipulating litigation; rather, the Plaintiffs “have actually had years to
recognize that their inverse condemnation claim should have been remanded to state court for
proper adjudication.” (Doc. 76 at 2.) Lastly, the Defendants argue that “courts of judicial review
have repeatedly deferred and recognized the necessity of an intermediary court exercising
appellate review of an agency adjudication.” (Id. (footnote omitted).)
47

2. Analysis
As stated above, “[a] takings claim is not ripe until (1) the relevant governmental unit has
reached a final decision as to what will be done with the property and (2) the plaintiff has sought
compensation through whatever adequate procedures the state provides.” Sandy Creek Inv'rs,
Ltd., 325 F.3d at 626. The Court will address each in turn.
a. The First Williams County Requirement: Final Decision
The first issue is whether there was a “final decision” by the “relevant governmental unit”
concerning the property. Id. The Fifth Circuit has stated:
In adopting the first prong, the [Williams County] Court explained its reluctance
to hear premature takings claims as follows:
“this Court consistently has indicated that among the factors of particular
significance in the [Penn Central] inquiry are the economic impact of the
challenged action and the extent to which it interferes with reasonable
investment-backed expectations. Those factors simply cannot be evaluated
until the administrative agency has arrived at a final, definitive position
regarding how it will apply the regulations at issue to the particular land in
question.”
Urban Developers LLC v. City of Jackson, Miss., 468 F.3d 281, 293 (5th Cir. 2006) (quoting
Williamson County, 105 S.Ct. at 3118–19 (citations omitted)). The Fifth Circuit then explained:
For example, in Penn Central the Court declined to hold that New York City's
Landmarks Preservation Law effected a taking as applied to Grand Central
Terminal, reasoning that although the City had disapproved a plan for a 50–story
building above the terminal, the property owners had not sought approval for an
alternative plan, and it was therefore uncertain whether the City would disapprove
of all economically beneficial uses of the land. Penn Central Transp. Co. v. New
York City, 438 U.S. 104, 98 S. Ct. 2646, 2665–66, 57 L.Ed.2d 631 (1978); see
also Agins v. City of Tiburon, 447 U.S. 255, 100 S. Ct. 2138, 65 L.Ed.2d 106
(1980), overruled on other grounds by First English Evangelical Lutheran Church
v. Los Angeles County, 482 U.S. 304, 107 S. Ct. 2378, 96 L.Ed.2d 250 (1987)
(rejecting a takings claim as unripe because the property's owner had not
submitted a plan for development). This means that even if a plan is initially
disapproved by the government, property owners must then seek variances
or waivers, when potentially available, before a court will hear their takings
claims. Williamson County, 105 S.Ct. at 3117; Hodel v. Virginia Surface Mining
48

& Reclamation Assn., Inc., 452 U.S. 264, 101 S.Ct. 2352, 2371, 69 L.Ed.2d 1
(1981). This court has also held that whenever the property owner has
ignored or abandoned some relevant form of review or relief, such that the
takings decision cannot be said to be final, the takings claim should be
dismissed as unripe. Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1041
(5th Cir.1998).
Id. (emphasis added). Thus, in Urban Developers LLC, the Fifth Circuit found that the first
prong was not satisfied because:
When [Plaintiff] Urban Developers was notified that the Mod Rehab contracts
wouldn't be renewed, it suspended its plans to rehabilitate Town Creek
[apartments] and abandoned all avenues of review that were available to it. See
Hidden Oaks, 138 F.3d at 1041. [Plaintiff’s principal member] admitted this at
trial[.] . . . Urban Developers submitted two building plans for approval by the
City, both of which were rejected because they did not comply with the City's
flood-zone ordinance. After this rejection, although represented by counsel,
Urban Developers neither applied for a floodplain-development permit, nor
pursued mandamus against the City's community development officer, nor
availed itself of the appeal process set forth in the City of Jackson municipal
code, which provides any person affected by an order issued by a housing
official with an appeal to the circuit court of the First Judicial District of
Hinds County. Like the Court in Penn Central, we cannot evaluate the extent to
which the City has interfered with Urban Developers' reasonable investmentbacked expectations because no final decision has been made, nor even sought,
regarding the application of the flood-zone ordinance. Accordingly, we dismiss as
unripe Urban Developers' regulatory takings claim against the City of Jackson.
Id. at 293–94 (emphasis added).
Here, it is uncontested that the Planning Commission discussed and evaluated the
Plaintiffs’ preliminary plat at the January 2013 public hearing. The Planning Commission
decided to delay a final decision and give the Plaintiffs an opportunity to make certain changes to
the plan. The Plaintiffs did so, yet, despite this, the Planning Commission eventually voted in
April to deny approval for the preliminary plat. Importantly, the Defendants have identified no
specific permit, variance, or administrative appeal process that the Plaintiffs should have pursued
but did not. The Defendants only point to one: relief from the courts, either through the
Louisiana Administrative Procedure Act or through some other general review process.
49

Putting aside the former,5 the Court agrees with the Defendants that Mercan, Inc. v. City
of Baton Rouge, 2000-0600 (La. App. 1 Cir. 5/11/01); 797 So.2d 722, reflects that denials of
subdivision plans are subject to judicial review. There, a developer filed suit after the planning
commission had denied approval of a proposed subdivision, resulting in “a taking without due
process.” Id. at 723. The trial court found that the planning commission did not act arbitrarily
and capriciously in denying the Plaintiffs permit. Id. On appeal, the Louisiana First Circuit held
that the Plaintiff had no cause of action and concluded “that before [the plaintiff] can make a
claim for damages against the City/Parish, it must give the courts the opportunity to rectify the
alleged arbitrary, capricious or abusive conduct. [The plaintiff] has not done so. Therefore, it
now lacks a cause of action against the City/Parish.” Id. at 724.
However, unlike the plaintiffs in Mercan and Urban Developers LLC, the Plaintiffs here
did provide “an opportunity to rectify the alleged . . . [mis]conduct” because it “pursued [a]
mandamus” against the Planning Commission in which they sought approval of the preliminary
plat. (See Petition, Doc. 1-2 at 6-7.) Moreover, there has even been a final decision on that writ
of mandamus; in ruling on the Defendants’ motion to dismiss, this Court found that the
Plaintiffs’ claim was moot because they had sold the property. (Doc. 36 at 10—11.) Thus, unlike
the above cases, the Planning Commission’s decision with respect to the Plaintiffs’ preliminary
plat is certain and final.

5

The Court agrees with the Plaintiffs that the Louisiana Administrative Procedure Act does not apply here.
Louisiana Revised Statute 49:964(G) provides that “[t]he court may affirm the decision of the agency or remand the
case for further proceedings,” or the court may “reverse or modify the decision” under certain circumstances. La.
Rev. Stat. 49:964(G). Section 9:951(2) specifically excludes from the definition of “agency” commissions of
political subdivisions. La. Stat. Ann. § 49:951(2); see also Brossette v. Alcoholic Beverage Control Bd., 94-0781
(La. App. 1 Cir. 5/5/95); 655 So. 2d 536, 538 (“it is well established that the APA's definition of “agency” does not
include a political subdivision nor any “board” of such an entity. La. R.S. 49:951(2).”).

50

The Defendants point to an (unauthenticated) email in support of their argument that
there was no final decision. In the email, dated April 23, 2013 (the day after the Plaintiffs’
preliminary plat was denied by the Planning Commission), counsel for the Plaintiffs emailed
Troy Bunch, former Director of the Planning Commission asking, “Should I file suit or so [sic]
you think there is an alternative course of action?” (Doc. 62-13.) Bunch replied, “Your future
action is up to you and your client. There is no waiting period to re-apply or your client could
modify the application or follow the existing rules and regulations.” (Id.)
Even if the Court were to consider this unauthenticated document, the Court finds that it
does not support the Defendants’ position. The email provides virtually no answer to the
Plaintiffs’ question of what the Plaintiffs should have done next to obtain review. To the extent
it does, the email suggests that filing suit would be an appropriate next step. This is precisely
what the Plaintiffs did. Finally, by the Defendants’ logic, no taking claim could ever be ripe,
because modification or reapplication is theoretically always available for an applicant.
Accordingly, the Court finds that the first prong of the Williamson County analysis is
satisfied. The Court will now proceed to the second.
b. The Second Williams County Requirement: Utilizing of State
Law Procedures
This Court has explained:
In order to satisfy the second prong of the Williamson County test, a property
owner may not claim a violation of just compensation until pursuing whatever
adequate procedures the State offers for seeking just compensation, such as an
inverse condemnation action. Williamson, 473 U.S. at 196–97. A plaintiff must
allow a state court to rule upon its inverse condemnation, or otherwise similar
appropriate remedy, action before bringing the action to federal court. Liberty
Mut. Ins. Co. v. Brown, 380 F.3d 793, 798 (5th Cir.2004). . . . Louisiana law
recognizes an inverse condemnation action as a means of seeking just
compensation. See State Through Dept. of Transp. & Dev. v. Chambers Inv. Co.,
595 So.2d 598, 602 (La. 1992).

51

Bienville Quarters, LLC v. E. Feliciana Par. Police Jury, No. 07-158, 2010 WL 2653317, at *2
(M.D. La. June 25, 2010). The Defendants acknowledge that the Plaintiffs filed an inverse
condemnation claim in state court, but they argue that their own removal of the action to federal
court somehow makes the claim unripe.
The Court rejects the Defendants’ argument. The Plaintiffs are correct that “the Supreme
Court has . . . explicitly held that Williamson County's ripeness requirements are merely
prudential, not jurisdictional, so although a court may raise them sua sponte, it may consider
them waived or forfeited as well.” “Rosedale Missionary Baptist Church v. New Orleans City,
641 F.3d 86, 88–89 (5th Cir. 2011) (citations omitted).
The Plaintiffs are also correct that “Williamson County [does not] prohibit[] plaintiffs
from advancing their federal claims in state courts.” San Remo Hotel, L.P. v. City & Cty. of San
Francisco, Cal., 545 U.S. 323, 346, 125 S. Ct. 2491, 2506, 162 L. Ed. 2d 315 (2005). The
Supreme Court has explained:
The requirement that aggrieved property owners must seek “compensation
through the procedures the State has provided for doing so,” [Williamson County,]
473 U.S., at 194, 105 S. Ct. 3108, does not preclude state courts from hearing
simultaneously a plaintiff's request for compensation under state law and the
claim that, in the alternative, the denial of compensation would violate the Fifth
Amendment of the Federal Constitution. Reading Williamson County to preclude
plaintiffs from raising such claims in the alternative would erroneously interpret
our cases as requiring property owners to “resort to piecemeal litigation or
otherwise unfair procedures.” MacDonald, Sommer & Frates v. Yolo County, 477
U.S. 340, 350, n. 7, 106 S. Ct. 2561, 91 L. Ed. 2d 285 (1986).
Id. Thus, the Plaintiffs acted properly in bringing in state court their federal takings claim with
their inverse condemnation claim.
The Court is persuaded by Sansotta v. Town of Nags Head, 724 F.3d 533 (4th Cir. 2013),
which was also cited by the Plaintiffs. There, the appellate court held that the district court erred

52

in dismissing the plaintiffs’ takings claim as unripe because the town had waived this
requirement by removing the case to federal court. Id. at 544.
The Sansotta court began by explaining how, under Williamson County, a plaintiff must
first seek compensation from the state via the procedures that the state has established before
suing the state in federal court and how, “[b]ased on this requirement, a plaintiff cannot
simultaneously bring a claim for compensation under state law and a claim under the Takings
Clause in federal court; rather, the plaintiff must first pursue his state-law claim for
compensation.” Id. (citations omitted). The Court then recognized the above rule from San
Remo Hotel, L.P. that a state court can hear simultaneously a claim for compensation under state
law and an alternative claim for denial of compensation under the Fifth Amendment. Id. (citing
San Remo Hotel, L.P., 545 U.S. at 346, 125 S. Ct. at 2506).
The Court stated that “the Williamson County state-litigation requirement involves only
prudential considerations,” so the Court “may determine that in some instances, the rule should
not apply and we still have the power to decide the case.” Id. at 545 (citations omitted). The
Sansotta court then found that “[t]his case is such an instance. Allowing the Town to invoke the
Williamson County state-litigation requirement after removing the case to federal court would
fail to fulfill the rationale for this prudential rule and would create the possibility for judicially
condoned manipulation of litigation.” Id.
As to the first reason, the Fourth Circuit explained that the purpose behind the statelitigation requirement is that state courts have more experience than federal courts in the factual
and legal issues surrounding zoning and land-use regulations. Id. (citations omitted). However,
federal courts remain capable of deciding the issues, and defendants implicitly recognize this

53

when they remove such cases to federal court. Id. “Thus, the primary reason for the Williamson
County state-litigation requirement no longer applies when the defendant removes a case.” Id.
As to the second reason (manipulation of litigation), the Fourth Circuit analogized the
case to the rule that a defendant who removes a case to federal court waives Eleventh
Amendment immunity. Id. at 545—46 (citing Lapides v. Bd. of Regents of the Univ. Sys. of Ga,
535 U.S. 613, 122 S. Ct. 1640, 152 L. Ed. 2d 806 (2002)). In Lapides, Supreme Court explained:
It would seem anomalous or inconsistent for a State both (1) to invoke federal
jurisdiction, thereby contending that the “Judicial power of the United States”
extends to the case at hand, and (2) to claim Eleventh Amendment immunity,
thereby denying that the “Judicial power of the United States” extends to the case
at hand. And a Constitution that permitted States to follow their litigation interests
by freely asserting both claims in the same case could generate seriously unfair
results.
Id. at 546 (quoting Lapides, 535 U.S. at 619, 122 S. Ct. 1640). According to the Fourth Circuit,
“The Court was so intent on preventing any manipulation that it created a bright-line rule: any
voluntary removal waives immunity.” Id. (citation omitted). Turning to its own case, the
Sansotta court explained:
Here, if we substitute “the Williamson County state-litigation requirement” for
“Eleventh Amendment immunity,” the logic is precisely the same. Like Eleventh
Amendment immunity, a state or its political subdivision is entitled to assert the
state-litigation requirement when a plaintiff files suit in federal court. But
permitting a state or its political subdivision to assert this requirement after the
state or its political subdivision has removed the case to federal court would allow
the state or its political subdivision to do in the context of the Takings Clause
exactly what the Supreme Court has declared to be improper in the context of the
Eleventh Amendment: invoke federal jurisdiction and then object to federal
jurisdiction.
Applying the reasoning of Lapides to the Takings Clause and Williamson County
is both logically and legally sound. First, this reasoning does nothing to
undermine the core rationale of Williamson County, as a plaintiff cannot bring a
takings claim in federal court without having been denied just compensation by
the state; such a claim can come into federal court before the state has denied
compensation only when the state or its political subdivision chooses to remove
the case to federal court. Second, it protects an innocent plaintiff who sought to
54

comply with Williamson County and San Remo Hotel but whose efforts were
thwarted by the state or political subdivision's decision to remove the case. Third,
it prevents a state or its political subdivision from manipulating litigation by
removing to federal court claims properly filed in state court in accordance with
San Remo Hotel and then claiming that the plaintiff cannot proceed on those
claims, thereby denying a plaintiff any forum for having his claim heard. Fourth,
and relatedly, it furthers our “strong preference for deciding cases on the merits”
by preventing any procedural gamesmanship. Heyman v. M.L. Mktg. Co., 116
F.3d 91, 94 (4th Cir. 1997).
Id. at 546—47.
The Fourth Circuit also expressly rejected the argument advanced by the Defendants here
– that the Plaintiffs should have sought remand. The Fourth Circuit explained that the plaintiffs
“had no basis to seek to have [the district] court remand any claims to the state court.” Id.
(citations omitted). After the case was removed, “federal jurisdiction was proper, and the district
court was obligated to exercise that jurisdiction unless it had a legal basis, such as abstention, to
refrain from exercising that jurisdiction.” Id. at 547 (citation omitted).
The Court finds the Sansotta case highly persuasive. All of the reasons cited by the
Sansotta court appear sound and reasonable. Most relevant, the Court finds the Defendants’
efforts on this issue stink of litigation manipulation. For these reasons, the Court will apply
Sansotta and find that the Defendants have waived any objection to this Williamson County
requirement. Thus, Williamson County does not preclude the Plaintiffs’ takings claims, and they
are ripe for adjudication.
D. Federal Takings Claims
1. The Parties’ Arguments
a. The Defendants’ Memorandum in Support
The Defendants acknowledge that the Plaintiffs are asserting a regulatory taking and
admit that, in ruling on the Defendants’ motion to dismiss, the Court identified the correct factors

55

in determining whether such a taking has occurred. These facts are (1) “the economic impact of
the regulation on the claimant;” (2) “the extent to which the regulation has interfered with
distinct investment-backed expectations;” and (3) “the character of the governmental action.”
(Doc. 62-1 at 7 (citing Penn Cent. Transp. Co. v. City of N.Y., 438 U.S. 104, 124, 98 S. Ct. 2646,
2659, 57 L. Ed. 2d 631 (1978)).)
The Defendants argue that the first factor weighs against the Plaintiffs. The Defendants
assert that the Plaintiffs have sold much of their 57.7 acres for over one million dollars.
According to the Defendants, “a diminution in value does not establish a taking.” (Doc. 62-1 at 8
(citing Jackson Court Condominiums, Inc. v. City of New Orleans, 874 F.2d 1070, 1080 (5th Cir.
1989)).) Moreover, the Defendants reject the Plaintiffs’ argument that they suffered economic
hardship because their profits from the proposed subdivision would have gone toward paying
various judgments; the Defendants state, “Plaintiffs’ poor financial decisions and legal troubles
do not vitiate the fact that they made a substantial profit. The law does not contemplate any
losses or financial obligations incurred by Plaintiffs as a result of their personal decision to
default on loans or breach contracts with third-parties.” (Doc. 62-1 at 8.)
Concerning the second Penn Central factor, the Defendants argue that investment-backed
expectations “must be more than a unilateral expectation or an abstract need,” that the Plaintiffs
must show that they were “denied the ability to exploit a property interest that they heretofore
had believed was available for development,” and that “[o]ne who buys with knowledge of a
restraint assumes the risk of economic loss.” (Doc. 62-1 at 9 (citations and quotations omitted).)
The Defendants argue that the Plaintiffs were familiar with the discretionary nature of the
approval process for subdivision plats and that this familiarity means that they had no reasonable
investment-backed expectations:

56

Plaintiffs’ expectation about the subject property would not be ‘investmentbacked’ unless they actually believed in a certain outcome and bought the
property in reliance on it. Clearly, based on their own testimony, it is
unreasonable for Plaintiffs to assert that they bought investment property in
reliance on the nonexistence of any regulations, most of all, regulations set forth
for the creation of subdivisions.
(Doc. 62-1 at 10.)
Concerning the third Penn Central factor, the Defendants contend that “Penn Central
noted that a taking is more readily found when the interference is a physical invasion than when
the interference arises from some public program adjusting the benefits and burdens of economic
life to promote the common good.” (Doc. 62-1 at 10 (citing Penn Central, 438 U.S. at 124).)
The Defendants contend that, since the taking here was regulatory, “there is no governmental
intrusion whatsoever.” (Id.) The Defendants state that, “[t]he challenged action in this case is the
failed approval of a preliminary plat for a proposed subdivision, which squarely falls under the
authority of local ordinances, and specifically the [UDC]. The regulation does not deprive
Plaintiffs of absolute use or ownership of their property.” (Id. at 10—11.) Thus, under the Penn
Central factors, no taking has occurred.
b. The Plaintiffs’ Opposition
The Plaintiffs begin by referring to the Court’s ruling on the Defendants’ motion to
dismiss. In that ruling, the Court found that, by alleging that the Planning Commission had
deprived the Plaintiffs of “all economically beneficial use” of the Property, the Plaintiffs had
stated a claim for a per se or “categorical” taking under Lucas v. South Carolina Coastal
Council, 505 U.S. 1003, 12 S Ct. 2886, 120 L. Ed. 2d 798 (1992). (Doc. 73 at 5 (citing Doc. 36
at 14).) The Plaintiffs contend that the Defendants did not address this claim in their motion, so
it survives summary judgment.

57

The Plaintiffs continue by stating that, even if the issue had been raised, it would survive
summary judgment. The Plaintiffs argue:
The holding of Lucas was that "when the owner of real property has been called
upon to sacrifice all economically beneficial uses in the name of the common
good, that is, to leave his property economically idle, he has suffered a taking."
[505 U.S. at 1010, 12 S. Ct. at 2895 (emphasis added).] Thus, "regulations that
leave the owner of land without economically beneficial or productive options for
its use-typically, as here, by requiring land to be left substantially in its natural
state-carry with them a heightened risk that private property is being pressed into
some form of public service under the guise of mitigating serious public harm."
[505 U.S. at 1010, 12 S Ct. at 2894—95.] "As Lucas elaborates, categorical
assessment of an alleged taking is appropriate when the property is purportedly
without economically viable use, and does not require the parcel to be without all
accounting or appraisal value. Both in its holding and its reasoning, Lucas thus
focuses on whether a regulation permits economically viable use of the property,
not whether the property retains some value on paper." [Resource Investments Inc.
v. United States, 85 Fed. Cl. 447, 486 (2009) (footnotes omitted).]
(Doc. 73 at 5.) The Plaintiffs argue that the Defendants have submitted no evidence that the
Plaintiffs had another economically viable “use” of the property after the Planning Commission’s
action. Rather, the Defendants focus solely on property values, which is not the appropriate
inquiry here. While the Plaintiffs (like the plaintiff in Lucas) were free to sell the property, they
were not free to use the property in any economically beneficial way.
The Plaintiffs also devote considerable attention to the Penn Central analysis. The
Plaintiffs begin by citing to numerous cases for the proposition that Courts are generally
reluctant to decide Penn Central issues at the summary judgment stage because they are so factintensive. (Doc. 73 at 6 (citations omitted).)
After listing factors to consider in assessing the economic effect on the claimant, the
Plaintiffs assert that the Defendants’ focus on the fact that the property was sold for a gross profit
is misplaced; the key is “how the regulation impacted the value of the Property, i.e., what the
Property might have sold for before the [Planning Commission] foreclosed the highest and best

58

use of that Property.” (Id.) The Plaintiffs’ evidence demonstrates the “ ‘before and after’ effect
of the Planning Commission’s action on its property and investment-backed profit expectations”;
the Defendant’s evidence simply shows that property appreciates over time. (Id. at 7—8.)
“Plaintiffs could have sold the Property, vacant and undeveloped, at any time; it was the fact they
were prevented from using their Property as permitted by law, i.e., developing the Property into
the low-density subdivision . . . that is the basis of Plaintiffs’ complaint.” (Id. at 8.)
Concerning the reasonableness of the investment-backed expectations, the Plaintiffs
contend that the “law requires an objective, but fact-specific inquiry into what, under all the
circumstances, [the Plaintiffs] should have anticipated.” (Id. (citations omitted).) According to
the Plaintiffs, the sole contention by the Defendants on this point is that, because the subdivision
required approval by the Planning Commission, it was not reasonable for the Plaintiffs to have
any expectations.” Relying on case law, the Plaintiffs assert that the existence of laws and
regulations does not per se prevent expectations for the development; rather, this is a factor in
the analysis. (Id. (citations omitted).) The key question is whether a reasonable person would
have considered it probable that the project would be approved. The Plaintiffs maintain that they
have satisfied this standard.
Finally, concerning the final Penn Central factor (the character of the governmental
action), the Plaintiffs argue that this factor is either neutral or weighs in their favor. They
contend they were denied a use of right protected by Louisiana law.
c. The Defendants’ Reply
The Defendants first claim that they are in fact challenging whether the Plaintiffs have a
Lucas taking and that the Plaintiffs cannot prove that they were deprived of “all economically
beneficial use” of their property. The Defendants argue that, in Tahoe—Sierra Preservation

59

Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 303 (2002), the Supreme Court
noted that “Lucas was carved out for the ‘extraordinary case’ in which a regulation permanently
deprives property of all use; the default rule remains that a fact specific inquiry is required in the
regulatory taking context.” Id. (emphasis added). The Defendants claim they did not engage in a
Lucas analysis because Lucas “clearly does not apply.” The Defendants claim they had use of
their property because they sold it for over one million dollars.
Concerning the as applied takings claim, the Defendants argue that the Plaintiffs were not
“economically deprived in any manner.” (Doc. 76 at 4.) In a footnote, they cite to the numerous
sales of property and to the approval of a smaller subdivision on the subject property that the
Plaintiffs sold.
Moreover, the Defendants contend that they dispute that the Plaintiffs would gain $1.3
million in profit from the subdivision development. The Defendants also contend that there were
no reasonable expectations because the property at issue was being foreclosed upon. According
to the Defendants, there can be no reasonable expectation that the development would have been
completed without an adversary action as a result of the foreclosure, and the “Plaintiffs were
only able to stop the foreclosure actions with the proceeds from the sales of the property.” (Doc.
76 at 5 n. 6.) Thus, according to the Defendants, the Plaintiffs lost not because of the Planning
Commission but through “their own doing via the satisfaction of any and all foreclosure
judgments rendered against them.” (Id.)
d. The Plaintiffs’ Surreply
Concerning the categorical taking (Lucas) claim, the Plaintiffs argue that the Defendants
cannot implicitly challenge this claim and rely on their assertion that “Lucas clearly does not

60

apply.” Rather, the Defendants had to expressly raise the issue in their motion, and they failed to
do so.
Concerning the merits of the Lucas claim, the Plaintiffs reiterate that there is a difference
between a land’s “use” and its “value,” and “it is the deprivation of any ‘economically beneficial
use” of the land, i.e., “regulations that leave the owner of land without economically beneficial
or productive options for its use—typically, as here, by requiring land to be left substantially in
its natural state,’ that Lucas expressly targets for treatment as a categorical taking.” (Doc. 80 at 3
(citation omitted).) The Plaintiffs claim that the “Defendants have introduced absolutely no
evidence of any other ‘economically beneficial use’ that Plaintiffs could have made of this
particular property.” (Doc. 80 at 3.)
Concerning the Penn Central factors, the Plaintiffs argue that there are no facts that
dispute their claim that the Plaintiffs would have earned $1.3 million in profits (beyond the value
of the land).
2. The General Framework of Regulatory Takings Claims
In Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 125 S. Ct. 2074, 2080, 161 L. Ed. 2d 876
(2005), the Supreme Court explained:
The Takings Clause of the Fifth Amendment, made applicable to the States
through the Fourteenth, see Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 17
S.Ct. 581, 41 L.Ed. 979 (1897), provides that private property shall not “be taken
for public use, without just compensation.” As its text makes plain, the Takings
Clause “does not prohibit the taking of private property, but instead places a
condition on the exercise of that power.” First English Evangelical Lutheran
Church of Glendale v. County of Los Angeles, 482 U.S. 304, 314, 107 S.Ct. 2378,
96 L.Ed.2d 250 (1987). In other words, it “is designed not to limit the
governmental interference with property rights per se, but rather to secure
compensation in the event of otherwise proper interference amounting to a
taking.” Id., at 315, 107 S.Ct. 2378 (emphasis in original).
Id., 544 U.S. at 536–37, 125 S. Ct. at 2080. “The paradigmatic taking requiring just
compensation is a direct government appropriation or physical invasion of private property.” Id.,
61

544 U.S. at 537, 125 S. Ct. at 2081 (citations omitted). “Beginning with Pennsylvania Coal Co.
v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322 (1922)], however, the Court recognized
that government regulation of private property may, in some instances, be so onerous that its
effect is tantamount to a direct appropriation or ouster-and that such ‘regulatory takings’ may be
compensable under the Fifth Amendment.” Id. The Supreme Court then explained:
Our precedents stake out two categories of regulatory action that generally will be
deemed per se takings for Fifth Amendment purposes. First, where government
requires an owner to suffer a permanent physical invasion of her propertyhowever minor-it must provide just compensation. See Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419, 102 S. Ct. 3164, 73 L. Ed. 2d 868 (1982)
(state law requiring landlords to permit cable companies to install cable facilities
in apartment buildings effected a taking). A second categorical rule applies to
regulations that completely deprive an owner of “all economically beneficial
us[e]” of her property. Lucas, 505 U.S., at 1019, 112 S. Ct. 2886 (emphasis in
original). We held in Lucas that the government must pay just compensation for
such “total regulatory takings,” except to the extent that “background principles of
nuisance and property law” independently restrict the owner's intended use of the
property. Id., at 1026-1032, 112 S. Ct. 2886.
Outside these two relatively narrow categories (and the special context of landuse exactions discussed below, see infra, at 2086-2087), regulatory takings
challenges are governed by the standards set forth in Penn Central Transp. Co. v.
New York City, 438 U.S. 104, 98 S. Ct. 2646, 57 L.Ed.2d 631 (1978). The Court
in Penn Central acknowledged that it had hitherto been “unable to develop any
‘set formula’ ” for evaluating regulatory takings claims, but identified “several
factors that have particular significance.” Id., at 124, 98 S. Ct. 2646. Primary
among those factors are “[t]he economic impact of the regulation on the claimant
and, particularly, the extent to which the regulation has interfered with distinct
investment-backed expectations.” Ibid. In addition, the “character of the
governmental action”-for instance whether it amounts to a physical invasion or
instead merely affects property interests through “some public program adjusting
the benefits and burdens of economic life to promote the common good”-may be
relevant in discerning whether a taking has occurred. Ibid. The Penn Central
factors-though each has given rise to vexing subsidiary questions-have served as
the principal guidelines for resolving regulatory takings claims that do not fall
within the physical takings or Lucas rules. See, e.g., Palazzolo v. Rhode Island,
533 U.S. 606, 617-618, 121 S. Ct. 2448, 150 L.Ed.2d 592 (2001); id., at 632-634,
121 S. Ct. 2448 (O'CONNOR, J., concurring). . . .
Although our regulatory takings jurisprudence cannot be characterized as unified,
these three inquiries (reflected in Loretto, Lucas, and Penn Central ) share a
62

common touchstone. Each aims to identify regulatory actions that are functionally
equivalent to the classic taking in which government directly appropriates private
property or ousts the owner from his domain. Accordingly, each of these tests
focuses directly upon the severity of the burden that government imposes upon
private property rights. The Court has held that physical takings require
compensation because of the unique burden they impose: A permanent physical
invasion, however minimal the economic cost it entails, eviscerates the owner's
right to exclude others from entering and using her property-perhaps the most
fundamental of all property interests. See Dolan v. City of Tigard, 512 U.S. 374,
384, 114 S. Ct. 2309, 129 L.Ed.2d 304 (1994); Nollan v. California Coastal
Comm'n, 483 U.S. 825, 831-832, 107 S. Ct. 3141, 97 L.Ed.2d 677 (1987);
Loretto, supra, at 433, 102 S. Ct. 3164; Kaiser Aetna v. United States, 444 U.S.
164, 176, 100 S. Ct. 383, 62 L.Ed.2d 332 (1979). In the Lucas context, of course,
the complete elimination of a property's value is the determinative factor. See
Lucas, supra, at 1017, 112 S. Ct. 2886 (positing that “total deprivation of
beneficial use is, from the landowner's point of view, the equivalent of a physical
appropriation”). And the Penn Central inquiry turns in large part, albeit not
exclusively, upon the magnitude of a regulation's economic impact and the degree
to which it interferes with legitimate property interests.
Id., 544 U.S. at 538—40, 125 S. Ct. at 2081—82. Thus, “a plaintiff seeking to challenge a
government regulation as an uncompensated taking of private property may proceed . . . by
alleging a “physical” taking, a Lucas-type “total regulatory taking,” [or] a Penn Central
taking[.]”6 Id., 544 U.S. at 548, 125 S. Ct. at 2087.
Here, Lucas and Penn Central takings claims have been made. The Court will address
each in turn.
3. The Categorical Takings (Lucas) Claim
The categorical takings claim requires an analysis of a procedural issue and a substantive
issue. The first issue is whether the claim is properly before the Court. The Court finds that it is.
The second issue is whether, assuming the claim can be considered, summary judgment is
warranted. The Court finds that it is because no reasonable juror could conclude that the
Plaintiffs suffered a “complete elimination of [the] property’s value.”

6

The Supreme Court identified a fourth type, but it is not at issue here.

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a. Procedural Issue
The Plaintiffs contend that the Lucas claim should not even be addressed because the
Defendants did not argue the issue in their original memorandum in support. The Plaintiffs point
to Baker v. Metropolitan Life Insurance Co., 364 F.3d 624 (5th Cir. 2004), which held that, “a
district court may not grant summary judgment sua sponte on grounds not requested by the
moving party.” Id. (citations omitted). The Defendants claim that the issue was implicitly raised
and obvious.
The Court finds that it will consider the issue. The Court bases its decision on Atkins v.
Salazar, 677 F.3d 667 (5th Cir. 2011).
In Atkins, the Fifth Circuit explained that, “[d]istrict courts are widely acknowledged to
possess the power to enter summary judgments sua sponte, so long as the losing party was on
notice that she had to come forward with all of her evidence.” Id. at 678 (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 326, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). “Put simply, ‘[s]ummary
judgment is improper if “[t]here was no reason for the [nonmoving party] to suspect that the
court was about to rule on the motion.” ’ ” Atkins, 677 F.3d at 678 (quoting Resolution Trust
Corp. v. Sharif–Munir–Davidson Dev. Corp., 992 F.2d 1398, 1402 (5th Cir.1993)). “Under this
standard, ‘[the Fifth Circuit has] vacated summary judgements [sic] and remanded for further
proceedings where the district court provided no notice prior to granting summary judgment sua
sponte, even where summary judgment may have been appropriate on the merits.’ ” Atkins, 677
F.3d at 678 (quoting Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit,
28 F.3d 1388, 1398 (5th Cir.1994)).
The facts of Atkins are particularly noteworthy. There, the Fifth Circuit found that the
district court did not err in granting summary judgment on the basis of a particular defense,

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despite the fact that the defendant did not raise the issue in its opening brief, because (1) the
“[plaintiff] himself raised the . . . defense in his summary judgment response brief”; (2) the
defendant “made repeated references to facts relevant to the . . . defense in its opening brief” ;
and (3) though the defendant raised the defense in its reply brief, the plaintiff filed a surreply
addressing it, thereby eliminating the concern that the defendant would have the “final word” on
the issue. Atkins, 677 F.3d at 679—81 (emphasis in original). The Fifth Circuit concluded:
In sum, [the plaintiff] raised the business necessity himself in his reply brief and
later elaborated upon it in his sur-reply. Whether or not he had formal notice from
the district court, [the plaintiff] was aware that the defense was at play and had a
full opportunity to argue against it and present whatever relevant evidence he had.
Notice from the district court that it intended to rely on the affirmative defenses
would have made no difference to [the plaintiff’s] briefing and so the lack of
notice caused [the plaintiff] no harm.
Id. at 681.
The Court finds Atkins directly on point. As in Atkins, the Plaintiffs themselves raised
the Lucas claim in their original opposition. The Defendant’s original brief contains
considerable evidence about the economically beneficial use of the Plaintiff’s property, as that
overlaps with the Penn Central analysis. Finally, the Plaintiff got the last word by filing a
surreply. According, the Court will decide this claim.
b. Substantive Issue
The next issue is whether the Lucas claim should be dismissed on the merits. The Court
finds that it should.
A review of Lucas is appropriate at the outset. In Lucas, the petitioner paid almost a
million dollars for two residential lots on an island. 505 U.S. at 1006—07, 112 S. Ct. at 2889.
He intended to build homes there. Id. Two years later, the state legislature enacted a statute
“which had the direct effect of barring [him] from erecting any habitable structures on his two
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parcels.” Id., 505 U.S. at 1007, 112 S. Ct. at 2889. He filed suit alleging a taking without just
compensation. Id., 505 U.S. at 1007, 112 S. Ct. at 2890.
The Court recognized that it found “categorical treatment appropriate . . . where
regulation denies all economically beneficial or productive use of land.” Id., 505 U.S. at 1015—
16, 112 S. Ct. at 2893-94 (citations omitted). The Court explained that “the Fifth Amendment is
violated when land-use regulation “denies an owner economically viable use of his land.” Id.,
505 U.S. at 1016, 112 S. Ct. at 2894 (emphasis in original).
In explaining the reason for this rule, the Court explained that it was “[p]erhaps” because
“total deprivation of beneficial use is, from the landowner's point of view, the equivalent of a
physical appropriation. For what is the land but the profits thereof?” Id., 505 U.S. at 1017, 112 S.
Ct. at 2894 (citations, alterations, and quotations omitted). Further:
the functional basis for permitting the government, by regulation, to affect
property values without compensation—that Government hardly could go on if to
some extent values incident to property could not be diminished without paying
for every such change in the general law,—does not apply to the relatively rare
situations where the government has deprived a landowner of all economically
beneficial uses.
On the other side of the balance, affirmatively supporting a compensation
requirement, is the fact that regulations that leave the owner of land without
economically beneficial or productive options for its use—typically, as here, by
requiring land to be left substantially in its natural state—carry with them a
heightened risk that private property is being pressed into some form of public
service under the guise of mitigating serious public harm. . . .
We think, in short, that there are good reasons for our frequently expressed belief
that when the owner of real property has been called upon to sacrifice all
economically beneficial uses in the name of the common good, that is, to leave his
property economically idle, he has suffered a taking.
Id., 505 U.S. at 1018—19, 112 S. Ct. at 2894—95 (emphasis in original) (citations and
quotations omitted).

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Writing for the majority, Justice Scalia also responded to an objection by the dissent,
stating:
Justice STEVENS criticizes the “deprivation of all economically beneficial use”
rule as “wholly arbitrary,” in that “[the] landowner whose property is diminished
in value 95% recovers nothing,” while the landowner who suffers a complete
elimination of value “recovers the land's full value.” . . . It is true that in at least
some cases the landowner with 95% loss will get nothing, while the landowner
with total loss will recover in full. But that occasional result is no more strange
than the gross disparity between the landowner whose premises are taken for a
highway (who recovers in full) and the landowner whose property is reduced to
5% of its former value by the highway (who recovers nothing). Takings law is full
of these “all-or-nothing” situations.
Justice STEVENS similarly misinterprets our focus on “developmental” uses of
property (the uses proscribed by the Beachfront Management Act) as betraying an
“assumption that the only uses of property cognizable under the Constitution are
developmental uses.” Post, at 2919, n. 3. We make no such assumption. Though
our prior takings cases evince an abiding concern for the productive use of, and
economic investment in, land, there are plainly a number of noneconomic
interests in land whose impairment will invite exceedingly close scrutiny under
the Takings Clause. See, e.g., Loretto v. Teleprompter Manhattan CATV Corp.,
458 U.S. 419, 436, 102 S.Ct. 3164, 3176, 73 L.Ed.2d 868 (1982) (interest in
excluding strangers from one's land).
Id., 505 U.S. at 1019 n. 8, 112 S. Ct. at 2895. The Supreme Court concluded that, because the
trial court found that the petitioner’s lots had been rendered “valueless,” he was entitled to
compensation under this theory. Id., 505 U.S. at 1020, 112 S. Ct. at 2896. The Court later held
that the state supreme court committed error when it applied the “harmful or noxious uses”
principle in the case and ultimately remanded for the state court to determine if common law
principles (like nuisance) would have prevented the building of “any habitable or productive
improvements on petitioner’s land.” Id., 505 U.S. at 1031—32, 112 S. Ct. at 2901—02.
Thus, Lucas recognizes that a regulation “denies all economically beneficial or
productive use of land” when there is “the equivalent of a physical appropriation,” 505 U.S. at
1017, 112 S. Ct. at 2894, when land is effectively “pressed into some form of public service,”
505 U.S. at 1018, 112 S. Ct. at 2895, when the landowner “has been called upon to sacrifice all
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economically beneficial uses in the name of the common good,” 505 U.S. at 1019, 112 S. Ct. at
2895, when he must “leave his property economically idle,” id., and when he “suffers a complete
elimination of value,” 505 U.S. at 1019 n. 8, 112 S. Ct. at 2895.
Thus, Lucas is somewhat ambiguous and does not appear to answer the question of
whether a categorical takings claim survives if the owner is able to sell his property for a million
dollars. As one federal appellate court noted, the Lucas court “used the term ‘use’
synonymously with the term ‘value.’ ” Lost Tree Vill. Corp. v. United States, 787 F.3d 1111,
1115 (Fed. Cir. 2015) (citing Lucas, 505 U.S. at 1019 n. 8, 112 S .Ct. 2886).
However, the Supreme Court provided guidance on how to interpret Lucas in TahoeSierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 122 S. Ct.
1465, 152 L. Ed. 2d 517 (2002). There, “[t]he question presented [was] whether a moratorium
on development imposed during the process of devising a comprehensive land-use plan
constitutes a per se taking[.]” Tahoe-Sierra, 535 U.S. at 306, 122 S. Ct. at 1470. The Supreme
Court held that it was not. In doing so, the Court stated:
The categorical rule that we applied in Lucas states that compensation is required
when a regulation deprives an owner of “all economically beneficial uses” of his
land. Id., at 1019, 112 S. Ct. 2886. Under that rule, a statute that “wholly
eliminated the value” of Lucas' fee simple title clearly qualified as a taking. But
our holding was limited to “the extraordinary circumstance when no productive or
economically beneficial use of land is permitted.” Id., at 1017, 112 S. Ct. 2886.
The emphasis on the word “no” in the text of the opinion was, in effect, reiterated
in a footnote explaining that the categorical rule would not apply if the diminution
in value were 95% instead of 100%. Id., at 1019, n. 8, 112 S. Ct. 2886. Anything
less than a “complete elimination of value,” or a “total loss,” the Court
acknowledged, would require the kind of analysis applied in Penn Central. Lucas,
505 U.S., at 1019–1020, n. 8, 112 S.Ct. 2886.
Tahoe-Sierra, 535 U.S. at 330, 122 S. Ct. at 1483. The Court further explained that the
categorical taking cases, including Lucas, “make clear that the categorical rule in Lucas was
carved out for the ‘extraordinary case’ in which a regulation permanently deprives property of all
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value; the default rule remains that, in the regulatory taking context, we require a more fact
specific inquiry.” Id., 535 U.S. at 332, 122 S. Ct. at 1484 (emphasis added).
Dissenting, Chief Justice Rehnquist took the position now advanced by the Plaintiffs. He
criticized the Court for interpreting Lucas to mean only value, writing:
The Court also reads Lucas as being fundamentally concerned with value, ante, at
1482–1484, rather than with the denial of “all economically beneficial or
productive use of land,” 505 U.S., at 1015, 112 S.Ct. 2886. But Lucas repeatedly
discusses its holding as applying where “no productive or economically beneficial
use of land is permitted. [(citations omitted)].
Tahoe-Sierra, 535 U.S. at 350, 122 S. Ct. at 1493 (Rehnquist, C.J., dissenting). However, as
demonstrated above, the Tahoe-Sierra majority clearly rejected this position.
Similarly, in Lingle, the Supreme Court again interpreted Lucas, explaining that:
A second categorical rule applies to regulations that completely deprive an owner
of “all economically beneficial us[e]” of her property. Lucas, 505 U.S., at 1019,
112 S. Ct. 2886 (emphasis in original). We held in Lucas that the government
must pay just compensation for such “total regulatory takings,” except to the
extent that “background principles of nuisance and property law” independently
restrict the owner's intended use of the property. Id., at 1026-1032, 112 S .Ct.
2886.
544 U.S. at 538, 125 S. Ct. at 2081. The Court further stated, “In the Lucas context, of course,
the complete elimination of a property's value is the determinative factor. See Lucas, supra, at
1017, 112 S. Ct. 2886 (positing that “total deprivation of beneficial use is, from the landowner's
point of view, the equivalent of a physical appropriation”).” Lingle, 544 U.S. at 539—40, 125, S.
Ct. at 2082. Thus, both Tahoe-Sierra and Lingle indicate that value is the key inquiry in a Lucas
claim.
The Court found conflicting circuit case law on whether a plaintiff can bring a Lucas
claim when he is able to sell his property. Compare Hawkeye Commodity Promotions, Inc. v.
Vilsack, 486 F.3d 430 (8th Cir. 2007) (affirming trial court’s holding that, even if Lucas applied
to real property, the plaintiff did not suffer a loss of all economically beneficial use of his gaming
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machines when it “could sell [the] machines (e.g. salvage value) or reconfigure the . . . machines
for a different use”), with Lost Tree Vill. Corp. v. United States, 787 F.3d 1111, 1113 (Fed. Cir.
2015) (“When there are no underlying economic uses, it is unreasonable to define land use as
including the sale of the land. Typical economic uses enable a landowner to derive benefits from
land ownership rather than requiring a landowner to sell the affected parcel.”).
The Court also found several district court cases holding that there was no Lucas claim
when the owner could sell his property. See Brian B. Brown Const. Co. v. St. Tammany Par., 17
F. Supp. 2d 586, 590 (E.D. La. 1998) (“plaintiff's sale to an outside investor [after the
commission and police jury’s decision denying approval to develop its property] would appear to
negate any claim that it has been denied all economically beneficial uses of its property.”);
Prewitt v. City of Rochester Hills, 105 F. Supp. 2d 724, 729–30 (E.D. Mich. 2000), vacated in
part, 54 F. App'x 817 (6th Cir. 2002) (“plaintiffs' [taking] claims . . . are defeated because
plaintiffs are bound by the administrative findings that the property in question has not been
rendered valueless. . . . In the present case, the state board adopted the administrative law
examiner's finding that plaintiffs' house, even in its current condition, could be sold to a
purchaser interested in doing the restoration work if plaintiffs would reduce their asking price
and/or intensify their marketing efforts. This finding conclusively establishes that the denial of
the demolition permit has not resulted in the loss of all reasonable beneficial use of plaintiffs'
house”); Rzadkowolski v. Twp. of Metamora, No. 14-12480, 2016 WL 2756518, at *6 (E.D.
Mich. May 12, 2016), order vacated in part on reconsideration sub nom. Rzadkowolski v.
Metamora Twp., No. 14-12480, 2016 WL 3230535 (E.D. Mich. June 13, 2016) (finding that
Plaintiff could not demonstrate that he was deprived of all economically beneficial value or
productive use of the land “because it is undisputed that his property still retains economic value,

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per a letter from the township tax assessor who stated on August 25, 2015 that the property has a
true cash value of $8,000, which is only $200 less than what Plaintiff paid for it.”); Nammari v.
Town of Winfield, No. 2:07-CV-306, 2008 WL 4757334, at *11 (N.D. Ind. Oct. 29, 2008) (“as
Plaintiffs admit that they sold their ownership interest in Doubletree Estate, it is implausible that
they were denied ‘all economically beneficial’ use of the land.”).
Having carefully considered both sides of the issue, the Court finds that the appropriate
question is whether the Plaintiffs were deprived of all value in the property. Regardless of any
ambiguity in Lucas, later Supreme Court cases make clear that, to prevail on a categorical taking
claim, the property must lose all value. See Tahoe-Sierra, 535 U.S. at 332, 122 S. Ct. at 1484;
Lingle, 544 U.S. at 539—40, 125, S. Ct. at 2082. Further, Hawkeye Commodity and the other
district court cases are persuasive on this point.
Applying that standard to the facts in the record, the Court finds that the Plaintiff’s Lucas
claim fails. The Plaintiffs sold much of the property for over a million dollars, and this
demonstrates that they were not deprived of all value in their property. No reasonable juror
could conclude otherwise. Thus, the Plaintiffs’ Lucas claim is dismissed.
Finally, even assuming that the question was whether the Plaintiffs had an economically
viable use in their property (as opposed to value), the Court finds that summary judgment would
still be warranted. Here, it is uncontested that, after the Planning Commission denied approval of
the Mallard Trails subdivision, the Plaintiffs submitted and obtained approval of another
subdivision that contained parts of the original Mallard Trails subdivision. (Doc. 62-2 at 8; Doc.
73-1 at 7—8.). Based on this fact, no reasonable juror could conclude that the Plaintiffs were
denied all economic beneficial use of their entire 57.5 acres. See Tahoe-Sierra, 535 U.S. at 330,
122 S. Ct. at 1483 (“But our holding in Lucas was limited to the extraordinary circumstance

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when no productive or economically beneficial use of land is permitted. The emphasis on the
word ‘no’ in the text of the opinion was, in effect, reiterated in a footnote explaining that the
categorical rule would not apply if the diminution in value were 95% instead of 100%.”)
(citations and quotations omitted)); Keystone Bituminous Coal Association v. DeBenedictis, 480
U.S. 470, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987) (owner was not deprived of economically
beneficial use of its property where regulation at issue still allowed the owner to mine 50 percent
of the value of its coal).
Accordingly, summary judgment is warranted on the Plaintiffs’ categorical takings claim.
This claim is dismissed.
4. The As-Applied Takings Claim
The Court must now examine the Penn Central factors. These factors include (1) the
“economic impact of the regulation on the claimant,” (2) “the extent to which the regulation has
interfered with distinct investment-backed expectations,” and (3) “the character of the
governmental action,” Penn Cent., 438 U.S. at 124, 98 S. Ct. at 2659 (citations omitted).
Regulatory takings “necessarily entails complex factual assessments of the purposes and
economic effects of government actions.” Tahoe-Sierra, 535 U.S. at 323, 122 S. Ct. at 1479.
Having carefully weighed these factors and the facts in the record, the Court finds that genuine
issues of material fact preclude summary judgment on this claim.
Concerning the first factor, the “test for regulatory taking requires [Courts] to compare
the value that has been taken from the property with the value that remains in the property[.]”
Keystone Bituminous Coal Ass'n,, 480 U.S. at 497, 107 S. Ct. at 1248. That is, they examine
changes in market value. See Hodel v. Irving, 481 U.S. 704, 714—15, 107 S. Ct. 2076, 2082—
83, 95 L. Ed. 2d 668 (1987). However, “[t]he Fifth Amendment prohibition against taking

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without compensation does not guarantee the most profitable use of property, and a diminution
in value, standing alone, does not establish a taking.” Jackson Court Condominiums, Inc. v. City
of New Orleans, 874 F.2d 1070, 1080 (5th Cir. 1989) (citations omitted). Additionally, the Court
can consider for this factor other economic benefits that the owner can derive from his property.
Andrus v. Allard, 444 U.S. 51, 66, 100 S. Ct. 318, 327, 62 L. Ed. 2d 210 (1979). However,
“[w]hen analyzing the economic impact of a regulation, the ‘loss of anticipated gains or potential
future profits’ is typically not considered.” Hackbelt 27 Partners, L.P. v. City of Coppell, No. 1511109, 2016 WL 5396660, at *5 (5th Cir. Sept. 27, 2016) (applying Texas law and citing
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 935 (Tex. 1998), which in turn relied upon
Andrus v. Allard, 444 U.S. at 66); see also Rose Acre Farms, Inc. v. United States, 559 F.3d
1260, 1268 (Fed. Cir. 2009) (stating that “the vast majority of takings jurisprudence examines,
under Penn Central's economic impact prong, not lost profits but the lost value of the taken
property” and collecting cases on same).
Here, the Plaintiffs have submitted evidence demonstrating that they were deprived of the
ability to build the subdivision of their choice on their property, which is a loss in value. They
also provided the Plaintiffs’ affidavit, which reflects a $1.3 million loss in profits. (Doc. 73-10 at
3.) As stated above, the Court cannot consider this fact for this prong. Lastly, the Plaintiffs filed
an expert report indicating that the property at issue diminished in value in the amount of roughly
$1.3 million. (Doc. 73-7 at 22.) This would tend to support the Plaintiffs’ argument. However,
that report also demonstrates that the land actually increased in value after the denial and that the
$1.3 million calculation is based on lost profits. (Doc. 73-9 at 10.) This would tend to undercut
the expert’s conclusions. Under these circumstances, including the conflicts in the expert’s
report, the Court finds this factor neutral at this time.

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The Court now turns to the second factor, interference with investment-backed
expectations. “The existence of a regulatory regime does not per se preclude all investmentbacked expectations for development.” Palm Beach Isles Assocs. v. United States, 231 F.3d
1354, 1364 (Fed. Cir. 2000). Rather, “the regulatory regime in place at the time the claimant
acquires the property at issue helps to shape the reasonableness of those expectations.”
Palazzolo, 533 U.S. at 633, 121 S. Ct. at 2466 (O’Connor, J., concurring). As one federal circuit
court explained:
The purpose of consideration of plaintiffs' investment-backed expectations is to
limit recoveries to property owners who can demonstrate that “they bought their
property in reliance on a state of affairs that did not include the challenged
regulatory regime.” This factor also incorporates an objective test—to support a
claim for a regulatory taking, an investment-backed expectation must be
“reasonable.” . . . The critical question is whether a reasonable developer
confronted with the particular circumstances facing the Owners would have
expected the government [action] . . . This is an objective, but fact-specific
inquiry into what, under all the circumstances, the Owners should have
anticipated.
Cienega Gardens v. United States, 331 F.3d 1319, 1345–46 (Fed. Cir. 2003) (citations omitted).
Applying these standards, the Court finds that this factor weighs strongly in favor of the
Plaintiffs. The Court recognizes that, above, it held that the Plaintiffs have not shown that it was
“certain” that they would obtain approval. But the question here is not whether there was a
“certainty.” The question is whether a reasonable juror could conclude that, given (1) the
Plaintiffs’ compliance with the UDC and the Planning Commission’s additional requests, and (2)
the recommendation of the Planning Commission staff and the Department of Public Works, the
Plaintiffs should have reasonably anticipated obtaining approval. The Court thinks that the
Plaintiffs meet this standard, at least enough to survive summary judgment. The line is fine, but
the Court believes it appropriate here.

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Further, the Plaintiffs have submitted evidence that they would have earned a profit of
over $1.3 million dollars if Mallard Trails had been developed. (Doc. 73-10 at 3.) The Court
agrees with the Plaintiffs that the Defendants have presented no evidence demonstrating that this
amount was unreasonable or incorrect. The fact that the property may have been in foreclosure
does not mean, as a matter of law, these expectations were unreasonable. In sum, this factor
weighs in favor of the Plaintiffs.
The final factor is the character of the government action. The Supreme Court has
advised that, “[a] ‘taking’ may more readily be found when the interference with property can be
characterized as a physical invasion by government than when interference arises from some
public program adjusting the benefits and burdens of economic life to promote the common
good.” Penn Cent., 438 U.S. at 124, 98 S. Ct. at 2659.
Preliminarily, the Court notes that there is “a clear distinction between substantive due
process analysis and Fifth Amendment takings analysis.” Rose Acre Farms, Inc., 559 F.3d at
1276 (citing Lingle, 544 U.S. at 540, 125 S. Ct. 2074). See also Robert G. Dreher, Lingle's
Legacy: Untangling Substantive Due Process From Takings Doctrine, 30 Harv. Envtl. L. Rev.
371, 402 (2006) (“[Lingle] rejects any normative component to takings law based on
considerations of the efficacy or wisdom of the government's actions.”). “We can no longer ask
whether the means chosen by government advance the ends or whether the regulation chosen is
effective in curing the alleged ill. All those concerns, albeit relevant concerns in many cases
dealing with governmental regulations, are now confined to a substantive due process inquiry.”
Rose Acre Farms, Inc., 559 F.3d at 1278 (citing Equity Lifestyle Props., Inc. v. County of San
Luis Obispo, 548 F.3d 1184, 1194 n. 17 (9th Cir. 2008) (“Due process violations cannot be

75

remedied under the Takings Clause ....” (citing Lingle, 544 U.S. at 543, 125 S. Ct. 2074)). Thus,
the Court’s finding in the substantive due process section is not dispositive here.
Thus, for this factor, courts should consider “the actual burden imposed on property
rights, or how that burden is allocated.” Id. at 1278 (citing Lingle, 544 U.S. at 543, 125 S. Ct.
2074). The Court also examines “the magnitude or character of the burden that a particular
regulation imposes upon private property rights” as well as “how any regulatory burden is
distributed among property owners.” Id. at 1279 (emphasis in original). Moreover, Courts
should examine the “harm-preventing purpose of a regulation” – that is, whether the “restrictions
were directed at the protection of public health and safety.” Id. at 1281 (citations omitted).
Analyzing the relevant considerations for this factor, the Court finds that it likely weighs
in favor of the Defendants. The restrictions appear directed at least in part at public safety.
While there was a burden placed on the Plaintiffs’ ability to build on their property, the
regulatory burden of the Planning Commission is distributed equally across the community; as
stated above, without more information about the nature of other projects in the area that were
approved, the Court cannot determine at this time whether the Plaintiffs were singled out.
Given the findings on the three Penn Central factors, the Court concludes that this factintensive inquiry is best left to a jury. For these reasons, the Court denies the Defendants’
motion on this issue.
E. The Monell Claim
1. The Parties’ Arguments
The Defendants’ next argument centers on whether the Plaintiffs have established
municipal liability under 42 U.S.C. § 1983. As Defendants correctly assert, “municipal liability
under section 1983 requires proof of three elements: a policymaker; an official policy; and a

76

violation of constitutional rights whose ‘moving force’ is the policy or custom.” Piotrowski v.
City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citing Monell v. Dep't. of Soc. Servs., 436
U.S. 658, 694, 98 S. Ct. 2018, 2037, 56 L. Ed. 2d 611 (1978)).
The Defendants appear to attack each requirement, though at times indirectly.
Concerning the first, the Defendants state that the “Planning Commission members vote to
approve each matter that comes before them; they are not a policy-making body.” (Doc. 62-1 at
19.) Concerning the second requirement, the Defendants contend that, for the following reasons,
the Plaintiffs cannot prove an official policy: (1) because, by merely declining to approve of the
preliminary plat, the Planning Commission made no statement of policy; (2) because this case
involves solely state and local laws, so no federal laws were violated; and (3) because there is no
evidence of deliberate indifference by any policymaker. Concerning the third Monell
requirement, the Defendants maintain that, because the Plaintiffs’ other constitutional claims fail,
the Plaintiff’s municipal liability claim also fails.
In response, the Plaintiffs argue that a policy can be established “based on an isolated
decision made in the context of a particular situation if the decision was made by an authorized
policymaker in whom final authority rested regarding the action ordered.” (Doc. 73 at 12 (citing
Cozzo v. Tangipahoa Par. Council—President Gov’t, 279 F.3d 273, 289 (5th Cir. 2002)). The
Plaintiffs state that this requirement is satisfied because state and local laws vest the Planning
Commission with final decision making authority over approval of subdivision plats.
In reply, the Defendants claim that the Plaintiffs do “nothing more than assert conclusory
allegations.” (Doc. 76 at 9.) According to the Defendants, the Plaintiffs are subject to a
heightened pleading requirement for allegations of a municipal custom. The Defendants assert

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that the Plaintiffs cannot prove any of the three Monell requirements and that their claims
consequently fail.
In a surreply, the Plaintiffs argue that there is no heightened pleading requirement for
Monell claims. The Plaintiffs reiterate that this Court already found that they stated a valid claim
under Monell.
2. Analysis
The Court finds that the Plaintiffs have demonstrated a genuine issue of fact precluding
summary judgment on their Monell claim. The Fifth Circuit has explained:
The first requirement for imposing municipal liability is proof that an official
policymaker with actual or constructive knowledge of the constitutional violation
acted on behalf of the municipality. Cox v. City of Dallas, Tex., 430 F.3d 734,
748–49 (5th Cir. 2005). A policymaker is “one who takes the place of the
governing body in a designated area of city administration.” Webster v. City of
Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc). He or she must “decide the
goals for a particular city function and devise the means of achieving those
goals.” Bennett v. City of Slidell, 728 F.2d 762, 769 (5th Cir. 1984) (en banc). . . .
A city's governing body may delegate policymaking authority (1) by express
statement or formal action or (2) “it may, by its conduct or practice, encourage or
acknowledge the agent in a policymaking role.”
Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161, 167 (5th Cir. 2010).
Here, the Planning Commission is a policymaker. State law vests the Planning
Commission with control over the authority and regulation of subdivision plats. The following
statutes demonstrate this:
-

La. Rev. Stat. § 33:101.1 provides that, “[e]xcept as otherwise provided in this
Subpart, the act of approving or disapproving a subdivision plat is hereby declared a
legislative function involving the exercise of legislative discretion by the planning
commission, based upon data presented to it; . . .”

-

La. Rev. Stat. § 33:110 states that, “[i]n general, a commission shall have such
powers as may be necessary to enable it to fulfill its functions, promote planning, and
in all respects carry out the purposes of this Sub-part.”

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-

La. Rev. Stat § 33:111 provides that, whenever a planning commission has adopted a
major street or road plan, individuals or corporations must obtain written approval
from the planning commission before filing or recording a plat. This section further
states that “failure to do so shall constitute the right of the governing authority
wherein said land is located not to accept same as a duly accepted and dedicated
subdivision.”

-

La. Rev. Stat. § 33:112(A) and (B) require parish and municipal planning
commissions to adopt “regulations governing the subdivision of land within [their]
jurisdiction” “[b]efore exercising the powers referred to in R.S. 33:110.”

Each of these statutes supports the conclusion that planning commissions are policymakers
within their jurisdictions with respect to the approval of subdivision plats.
Similarly, East Baton Rouge Parish has vested authority in the Planning Commission in
accordance with state law. UDC § 1.1 provides the authority for and policy behind the adoption
of the regulations contained in the code:
In accordance with the provisions of R.S. 33:101 et seq., and particularly R.S.
33:112, and in order to promote the health, safety, convenience, morals, and
general welfare of the community, to ensure orderly development of property;
provide for the proper arrangement, width, naming of streets in relation to other
existing or planned streets that provide adequate and convenient traffic circulation
including access for emergency vehicles; and ensure the adequacy of vehicular
parking, utilities, and open space and recreation facilities, the following
regulations [i.e., the UDC] are adopted by the Planning Commission.
(Doc. 73-2 at 1). UDC § 1.2 states that, “Every subdivision of land or site or tract development . .
. within the jurisdiction of the Parish . . . shall be shown upon a plat and submitted to the
Planning Commission for approval or disapproval.”) (Doc. 73-2 at 1). UDC § 3.04(B) also
provide:
Upon adoption of the Master Plan by the Planning Commission and Metropolitan
Council, no subdivision, street, park or public way, ground or space, drainage,
building development or structure, whether publicly or privately owned which is
in conflict with the Master Plan or the Unified Development Code shall be
constructed or authorized by the appropriate department of the City-Parish
government, until and unless the locations and extent thereof shall have been

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submitted to and approved by the Planning Commission and where appropriate,
Zoning Commission.
(Doc. 73-2 at 5); see also East Baton Rouge Plan of Government § 10.04(B), Doc 73-3 at 6, also
available at https://brgov.com/plan/ch10.htm (stating almost verbatim the same rule as UDC §
3.04). Indeed, one of the parties’ undisputed material facts is that the Planning Commission “is
charged with, among other things, the responsibility of review and approval of subdivision
plats.” (Doc. 73-1 at 1.)
Thus, it is clear that, by formal act, the Planning Commission is the City/Parish’s
policymaker with respect to the approval of subdivision plats. The Planning Commission “takes
the place of [the Parish] in [this] designated area of city administration,” and it “decide[s] the
goals for [this] particular city function and devise[s] the means of achieving those goals.”
Zarnow 614 F.3d at 167. Thus, the first requirement of Monell liability has been satisfied.
The second requirement has also been satisfied. The Fifth Circuit has recognized that an
“[o]fficial policy is . . . [a] policy statement, ordinance, regulation, or decision that is officially
adopted and promulgated by the municipality's lawmaking officers or by an official to whom the
lawmakers have delegated policy-making authority.” Bennett v. City of Slidell, 735 F.2d 861, 862
(5th Cir. 1984). Thus, “[a] plaintiff may also establish a custom or policy based on an isolated
decision made in the context of a particular situation if the decision was made by an authorized
policymaker in whom final authority rested regarding the action ordered.” Cozzo v. Tangipahoa
Par. Council--President Gov't, 279 F.3d 273, 289 (5th Cir. 2002) (citations omitted). Here, a
reasonable jury could conclude that the Planning Commission members officially rendered a
decision by disapproving of the Plaintiffs’ preliminary plat and that this decision was made by an
authorized policymaker with knowledge and final authority on the matter.

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The Defendants cite to no law holding that this is insufficient to constitute a policy for
summary judgment purposes. The Defendants are correct that, in the Fifth Circuit, “[t]he
description of a policy or custom and its relationship to the underlying constitutional violation . .
. cannot be conclusory; it must contain specific facts.” Spiller v. City of Texas City, Police Dep't,
130 F.3d 162, 167 (5th Cir. 1997). But such facts are clear from the record: the rejection of the
Plaintiffs’ preliminary plat. Even if there were a heightened pleading requirement here, which is
doubtful,7 the Plaintiffs would satisfy that hurdle.
Finally, the Court has already determined that there are questions of fact as to whether the
Defendants violated the Plaintiffs’ Fifth Amendment right against unlawful takings. For similar
reasons, the Court finds that a reasonable juror could conclude that the Planning Commission
members’ decision was the “moving force” of this constitutional violation, which clearly
constitute violations of federal law.
Thus, the Plaintiffs’ municipal liability claim survives. The Defendants’ motion for
summary judgment on this issue is denied.

7

The Supreme Court has recently stated in Johnson v. City of Shelby, Mississippi, 574 U.S. ____, 135 S.Ct. 346
(2014):
Federal pleading rules call for “a short and plain statement of the claim showing that the pleader is
entitled to relief,” Fed. Rule Civ. Proc. 8(a)(2); they do not countenance dismissal of a complaint
for imperfect statement of the legal theory supporting the claim asserted. See Advisory Committee
Report of October 1955, reprinted in 12A C. Wright, A. Miller, M. Kane, R. Marcus, and A.
Steinman, Federal Practice and Procedure, p. 644 (2014 ed.) (Federal Rules of Civil Procedure
“are designed to discourage battles over mere form of statement”); 5 C. Wright & A. Miller, §
1215, p. 172 (3d ed. 2002) (Rule 8(a)(2) “indicates that a basic objective of the rules is to avoid
civil cases turning on technicalities”). In particular, no heightened pleading rule requires
plaintiffs seeking damages for violations of constitutional rights to invoke § 1983 expressly in
order to state a claim. See Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163, 164, 113 S. Ct. 1160, 122 L. Ed. 2d 517 (1993) (a federal
court may not apply a standard “more stringent than the usual pleading requirements of
Rule 8(a)” in “civil rights cases alleging municipal liability”); . . .

Id., 135 S. Ct. at 346–347 (emphasis added). In any event, this is a ruling on a motion for summary judgment, not a
motion to dismiss.

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F. State Law Takings Claim
1. The Parties’ Arguments
The Defendants assert that, under state law, a “regulatory taking occurs when a regulation
destroys a major portion of the property’s value or eliminates the practical economic uses of the
property.” (Doc. 62-1 at 11 (emphasis omitted).) Here, according to the Defendants, the
Plaintiffs were not deprived of a major portion of the property’s value; the evidence shows that
the Plaintiffs sold much of their property for over one million dollars. Additionally, the
Plaintiffs were not deprived of all economically beneficial use, as they were able to develop their
property.
The Plaintiffs respond that the appropriate test was laid out by the Louisiana Supreme
Court, and it does not consider whether a “major portion” has been eliminated. Rather, this test
looks at whether the government action has deprived a landowner of the property’s “highest and
best use.” (Doc. 73 (citations omitted).) Further, the Defendants ignore that “value” includes the
lost profits that they could have received from developing the property. Thus, the record
evidence shows they lost more than half the value they might have expected to reap from their
property.
The Defendants respond that the Plaintiffs’ cited three-part test ignores the Court’s
previous ruling on the motion to dismiss. Further, even if profits were considered, the Plaintiffs
have profited over $1 million from the sale of their property. Any additional damages would be
a “windfall.”
2. Analysis
Article I, Section 4 of the Louisiana Constitution provides that “Every person has the
right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is

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subject to reasonable restrictions and the reasonable exercise of the police power.” La. Const. art.
I, § 4. Section 4 further states, “Property shall not be taken or damaged by the state or its
political subdivisions except for public purposes and with just compensation paid to the owner or
into court for his benefit.” Id.
As this Court explained in its ruling on the motion to dismiss, “[a]t issue here is a
regulatory taking, which, under Louisiana law, ‘occurs when the regulation destroys a major
portion of the property’s value or eliminates the practical economic uses of the property.’ ” (Doc.
36 at 17 (citing State, Dept. of Soc. Servs. v. City of New Orleans, 95-1757 (La. App. 4 Cir.
5/29/96); 679 So. 2d 149, 151; Layne v. City of Mandeville, 93-0046 (La. App. 1 Cir. 12/29/93);
633 So. 2d 608, 612).)
While, in the briefing for this motion, the parties appear to dispute the appropriate
standard to apply, that issue appears to be resolved in the Plaintiffs’ proposed jury instructions.
There, the Plaintiffs cite to State of Louisiana, Department of Social Services (as well as an
additional case) and recite the above rule on this issue from the Court’s ruling on the motion to
dismiss. They also state that this is “an accurate recitation of the law.” (Doc. 110 at 19—20.)
Thus, the Court will consider the issue resolved.
Applying this standard, the Court finds that a question of fact exists as to whether a
regulatory taking has occurred under Louisiana law. As stated above, the Plaintiffs have
presented evidence demonstrating that their property suffered a $1.3 million dollar depreciation
in value. (Doc. 73-7 at 22.) While the Court determined above that the Plaintiffs could not
prove that they were deprived of all value, here the standard is whether they were deprived of a
major portion of the property’s value. The Court finds that, even considering the sale of the
property, a reasonable juror could conclude that a $1.3 million dollar deprivation in value

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constitutes a deprivation of a major portion of the property’s value. At the very least, this is a
question best left for the jury. Accordingly, summary judgment on this issue is denied.
V.

Conclusion
Accordingly,
IT IS ORDERED that the Motion for Summary Judgment Pursuant to Fed. R. Civ. P. 56

Filed by City of Baton Rouge/Parish of East Baton Rouge (Doc. 62) is GRANTED IN PART
and DENIED IN PART;
IT IS FURTHER ORDERED that the motion is GRANTED in that the following of
the Plaintiffs’ claims are DISMISSED WITH PREJUDICE: (1) the substantive due process
claim, (2) the procedural due process claim, and (3) the categorical takings (Lucas) claim;
IT IS FURTHER ORDERED that, in all other respects, the Defendants’ motion is
DENIED. Trial will proceed on the following claims: (1) the as applied (Penn Central) takings
claim, (2) the Monell claim, and (3) the state law takings claim.
IT IS FURTHER ORDERED that, by Monday, October 24, 2016, at 12:00 p.m., the
parties shall file into the record trial briefs no longer than five pages addressing how this ruling
impacts the parties’ currently pending motions in limine. The parties shall also inform the Court
of which of their proposed jury instructions they wish to withdraw as no longer necessary. The
parties are not entitled to file new motions in limine or seek the exclusion of additional evidence,
and they are not entitled to submit new proposed jury instructions.
Signed in Baton Rouge, Louisiana, on October 22, 2016.

S

JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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