U L Coleman Co Ltd vs. Bossier City-Parish Metropolitan Planning Commission et al
Filing
521
MEMORANDUM RULING re 475 MOTION to Enforce Consent Decree and Cooperative Endeavor Agreement MOTION for Attorney Fees filed by Sequoia Venture No 2 Ltd, A Teague Parkway L L C, U L Coleman Co Ltd. Signed by Judge S Maurice Hicks on 03/13/2017. (crt,McDonnell, D)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
U.L. COLEMAN COMPANY, LTD,
ET AL.
CIVIL ACTION NO. 08-2011
VERSUS
JUDGE S. MAURICE HICKS, JR.
BOSSIER CITY-PARISH METROPOLITAN
PLANNING COMMISSION, ET AL.
MAGISTRATE JUDGE HORNSBY
MEMORANDUM RULING
Before the Court is Plaintiffs’ Motion to Enforce Consent Decree and Cooperative
Endeavor Agreement (Record Document 475).1 The Coleman Plaintiffs argue that certain
actions by officials of the City of Bossier City (“the City”) demonstrate violations of the
Consent Decree and the Cooperative Endeavor Agreement (“CEA”) involving the proposed
Implementation Plan for the Redevelopment Districts. More specifically, the Coleman
Plaintiffs allege that the City is not in good faith in the creation and implementation plan for
the two Redevelopment Districts required under the terms of the Consent Decree and
CEA. Defendant, the City, opposed the motion and maintains that it is meeting its
obligations under the Consent Decree and the CEA. See Record Document 483. Further,
the City contends that it has considered the comments of the Coleman Plaintiffs in relation
to the creation and implementation of the Redevelopment Districts and has responded to
such comments in good faith. In addition to extensive briefing, the Coleman Plaintiffs’
motion came on for a two day hearing before the undersigned in November 2015. See
Record Documents 513-514, 517-518. For the reasons set forth below, the Coleman
Plaintiffs’ Motion to Enforce Consent Decree and Cooperative Endeavor Agreement
1
Plaintiffs in this matter are U.L. Coleman Company, Ltd., Sequoia Venture No. 2,
Ltd., and A. Teague Parkway, LLC. The Court will refer to them collectively as “the
Coleman Plaintiffs.”
(Record Document 475), including their request for attorneys’ fees and the costs incurred
for the utilization of land use planning experts, is hereby DENIED.2
I.
BACKGROUND.
On December 13, 2012, this Court signed a Consent Decree to resolve the disputes
in the instant lawsuit, which was originally filed in 2008. See Record Document 423. The
Consent Decree provides, among other things, that “[t]he parties are . . . ordered to enter
into a Cooperative Endeavor Agreement necessary to implement the intent of this court’s
ruling.” Id. at C.4.F. The Consent Decree also references the Redevelopment District(s)
to be established:
F.
SPECIFIC BENEFITS TO THE CITIZENS OF BOSSIER CITY:
1.
All parties agree to specific benefits to the citizens of the City
as follows:
...
g.
U.L. Coleman Companies will provide $50,000 to the
City for the City to engage a national design firm to
provide plans and covenants for the Barksdale
Boulevard Redevelopment District (to be established).
h.
U.L. Coleman Companies will provide $50,000 to the
City for the City to engage a national design firm to
provide plans and covenants for the redevelopment
district of residential neighborhoods south of Barksdale
Air Force Base. . . .
Record Document 423 at 13. This Court retained jurisdiction for the purpose of enforcing
2
The Coleman Plaintiffs have requested reimbursement of their attorneys’ fees
related to the instant motion pursuant to Section D(3) of the Consent Decree and “all costs
incurred regarding the use of land planning experts since the beginning of the
Redevelopment District planning.” Record Document 475 at 5. The CEA states that in the
event of a breach, the non-breaching party shall be entitled to all remedies set forth in the
Consent Decree. See Record Document 424 at Article IV, Section 4.01. As set forth infra,
this Court finds no violation of the Consent Decree and no breach of the CEA; thus, an
award of attorneys’ fees and costs to the Coleman Plaintiffs is not appropriate.
Page 2 of 40
the Consent Decree. See id. at 11. The Consent Decree provides, in pertinent part, that
“all decisions by Judge Hicks . . . are final and binding and are not appealable.” Id. at 12.
On December 13, 2012, the parties entered into the CEA for Walker Place
Community Benefits. See Record Document 424.3 The key provisions of the CEA are set
forth below:
ARTICLE I
DEFINED TERMS, RULES OF CONSTRUCTION
AND INTERPRETATION
1.02. Defined Terms. As used herein, as well as in any document,
certificate, report or agreement furnished from time to time in connection with
this Agreement, the following terms shall have the meanings assigned below
unless the context otherwise requires.
...
“Barksdale Boulevard Redevelopment District” means a
Redevelopment District for the area along Barksdale Boulevard to be
established by the City in accordance with the terms described herein.
...
“Coleman Boulevard Redevelopment Contribution” means the
financial contribution to the City of $50,000.00 to be used to engage a
national design firm to provide plans and covenants for Barksdale Boulevard
Redevelopment District.
“Coleman Neighborhood Redevelopment Contribution” means
the financial contribution to the City of $50,000.00 to be used to engage a
national design firm to provide plans and covenants for a Redevelopment
District of residential neighborhoods south of Barksdale Air Force Base.
...
“Project Plans” means the plans, specifications, and drawings for the
Public Park which shall be prepared by the design and engineering
professionals of the City, paid for in part by the Coleman Park Contribution,
3
On December 13, 2012, the parties also entered into a CEA for Walker Place
Infrastructure Projects. See Record Document 425. The CEA relating to infrastructure
projects is not relevant to the instant matter before this Court.
Page 3 of 40
and the design plans, specifications, and drawings for the pedestrian and
bicycle pathway in accordance with the City Pathway Contribution.
...
“Redevelopment District” means a geographical demarcated area
within which certain best planning guidelines and practices are implemented,
home ownership is encouraged, and certain public incentives, such as tax
benefits and funding opportunities, are made available.
...
1.03. Rules of Interpretation.
...
(d)
No Authorship Presumption. Each of the Parties has had an
opportunity to negotiate the language of this Agreement in
consultation with legal counsel. No presumption shall arise or
adverse inference be drawn by virtue of authorship, and each
Party hereby waives the benefit of any rule of law that might
otherwise be applicable in connection with the interpretation of
this Agreement, including but not limited to any rule of law to
the effect that any provision of this Agreement shall be
interpreted or construed against the Party (or whose counsel)
that drafted such provision.
...
ARTICLE III
COMMUNITY BENEFIT PROJECTS,
COLEMAN AND CITY OBLIGATIONS
...
3.02. Obligations of Coleman. Coleman hereby agrees as follows with
respect to the Community Benefit Projects:
...
(b)
Barksdale Boulevard Redevelopment District Design.
Coleman will directly contribute the Coleman Boulevard
Redevelopment Contribution to the City to be used to engage
a national design firm to provide plans and covenants for the
Barksdale Boulevard Redevelopment District, within five days
of the City’s engagement of said national design firm.
Page 4 of 40
(c)
Barksdale South Neighborhood Redevelopment District
Design. Coleman will directly contribute the Coleman
Neighborhood Redevelopment Contribution to the City to be
used to engage a national design firm to provide plans and
covenants for a Redevelopment District of residential
neighborhoods south of Barksdale Air Force Base, within five
days of the City’s engagement of said national design firm.
3.03. Obligations of the City. The City hereby agrees as follows with
respect to the Community Benefit Projects.
...
(c)
Creation of Barksdale Boulevard Redevelopment District.
The City agrees to create and enact, in consultation and
guided by the plans and covenants provided for in connection
with the Coleman Boulevard Redevelopment Contribution, a
Redevelopment District for the area along Barksdale
Boulevard.
(d)
Creation of Barksdale
South Neighborhood
Redevelopment District. The City agrees to create and
enact, in consultation and guided by the plans and covenants
provided for in connection with the Coleman Neighborhood
Redevelopment Contribution, a Redevelopment District of
residential neighborhoods south of the Barksdale Air Force
Base.
3.04. Consultation. The Parties agree to consult one another, in good faith
and in full cooperation, in the execution of the obligations of the Parties, as
described in this Article III. Further, the City agrees to allow Coleman the
opportunity to review and provide comments to the Project Plans prior to
their finalization, which comments the City shall take into full, good faith
consideration.
...
5.04. Term of this Agreement. This Agreement shall continue in full force
and effect until (I) the completion of the Public Park; (ii) the completion of the
pedestrian/bicycle pathway over Arthur teague Parkway from the Public Park
in accordance with the City Pathway Contribution; (iii) the establishment by
the City of the Barksdale Boulevard Redevelopment District in connection
with the Coleman Boulevard Redevelopment Contribution; and (iv) the
establishment by the City of a Redevelopment District of residential
neighborhoods south of Barksdale Air Force Base in connection with the
Coleman Neighborhood Redevelopment Contribution.
Page 5 of 40
Id.
Beginning in the summer of 2014, this Court began attending and monitoring
construction progress meetings. See Record Document 438. The vast majority of these
construction progress meetings focused on the construction of the park and the pedestrian
bridge; however, the Court monitored the City’s work as to the redevelopment districts
required under the Consent Decree and CEA. See Record Document 471-5 (Final Minutes
of 05.29.15 Progress Meeting).4 In fact, during the November 2015 hearing, this Court
remarked that it had “pretermitted redevelopment districts and shoved it to the back burner”
while the park and bridge projects were on front-burner status.” Record Document 517 at
14. The Court’s minutes from the June 29, 2015 status conference/construction progress
meeting state:
The Coleman Group requested additional time to submit FINAL written
comments regarding the Implementation Plan for the redevelopment districts.
Mr. Coleman shall contact the Court as soon as possible to advise of how
much time, not to exceed 28 days, is needed for his group’s FINAL
comments. The communication protocols for the park and bridge project
previously set remain in place. The Coleman Group is free to contact SWA
for the purpose of retaining SWA for consultation in connection with the
redevelopment districts.
4
The Court officially adopted the Project Manager’s Minutes for the construction
progress meetings held on August 14, 2014; September 11, 2014; October 9, 2014;
November 6, 2014; December 11, 2014; February 26, 2015; March 31, 2015; May 29,
2015; and June 29, 2015. See Record Documents 471 & 474. While the Court discussed
the August 6, 2015 minutes during conferences on August 28, 2015 and September 3,
2015, the Court is unable to determine if a final version of the August 6, 2015 was
submitted to the Court. See id. By letter dated September 2, 2015, counsel for the City
advised the Court: “Mr. McSwain reports that he has received no comments to the 8/6/15
draft Progress meeting minutes circulated on 8/7/15.” Counsel’s letter was also hand
delivered to counsel for the Coleman Plaintiffs. The September 2, 2015 letter appears to
be the last communication/submission relating to the August 6, 2015 minutes. Therefore,
the City is hereby ORDERED to submit the final version of the minutes from the August 6,
2015 construction progress meeting such that the Court can adopt the minutes and make
them part of the record.
Page 6 of 40
Record Document 456. On July 21, 2015, this Court granted a motion for extension of time
and extended the deadline for the Coleman Group to submit final written comments
regarding the City of Bossier City’s Implementation Plan for the Redevelopment Districts
until August 14, 2015. See Record Document 460. The Court advised that no further
extensions would be granted and that any filings received after August 14, 2015 would not
be considered by the Court. See id.
In July 2015, the Coleman Plaintiffs filed two motions, one of which was exclusively
addressed to redevelopment. See Record Documents 458 & 459. The Court held a July
22, 2015 status conference to discuss the motions. See Record Document 464. Both
motions were stayed pending a follow up status conference set for August 28, 2015. See
id. The Court again reminded U.L. Coleman, III (“Coleman”), President of the U.L.
Coleman Company, Ltd., that final written comments regarding the City’s Implementation
Plan for the Redevelopment Districts were due August 15, 2015. See id.
On July 24, 2015, the Coleman Plaintiffs moved to withdraw their two motions
(Record Documents 458 & 459). Their motions to withdraw were granted by this Court on
July 27, 2015. See Record Documents 465 & 466. The Coleman Plaintiffs then filed a
revised Motion to Enforce Consent Decree and Cooperative Endeavor Agreement. See
Record Document 462. The revised motion was likewise stayed pending a follow up status
conference set for August 28, 2015. See Record Document 469.
On August 28, 2015, the Court held a construction progress meeting and a status
conference. See Record Documents 470, 471 & 473. During the status conference, the
Court discussed the revised Motion to Enforce Consent Decree and Cooperative Endeavor
Page 7 of 40
Agreement (Record Document 462), including the “Todd Meyer matrix”5 submitted by the
Coleman Plaintiffs. See Record Document 471. Counsel for the Coleman Plaintiffs
admitted that the issues presented in the matrix were broader than the issues presented
in the revised motion; thus, the Coleman Plaintiffs’ revised motion was denied as moot.
See id. The Court ordered that all counsel and the key individual parties meet on August
29, 2015 in an attempt to resolve all issues surrounding the City’s Implementation Plan for
the Redevelopment Districts. See id. The Court directed counsel to file a Joint Status
Report outlining any progress made at the meeting. See id. If issues remained after the
meeting, the Coleman Plaintiffs were ordered to file a new motion presenting any and all
remaining issues relating to redevelopment districts. See id. Finally, the Court stayed all
action on the redevelopment district pending further order of the Court. See id.6
5
As previously stated, the Court had ordered the Coleman Plaintiffs to submit final
written comments regarding the Implementation Plan no later than August 15, 2015. The
Coleman Plaintiffs provided “preliminary” comments to the City on August 14, 2015. See
Record Document 518 at 396. The City prepared responses. See City Exhibit 24.
Todd Meyer of the Forum Group prepared the Implementation Plan
Comment/Action Item Matrix on August 26, 2015 and it was submitted to the City and the
Court in preparation for the August 28, 2015 conference. See Record Document 517 at
20-23; Joint Hearing Exhibit 3. The Coleman Plaintiffs termed the matrix as a preliminary
response; yet, during the November 2015 hearing, the Court deemed the matrix as the
Coleman Plaintiffs’ final comments on the Implementation Plan. See id. at 22-23.
Moreover, the Court notes that the Coleman Plaintiffs’ first two Motions to Enforce (Record
Documents 459 & 462) were filed even before the Coleman Plaintiffs presented any
comments to the Implementation Plan. The aforementioned actions on the part of the
Coleman Plaintiffs do not appear to be in the spirit of consultation, in good faith and in full
cooperation, as required by Section 3.04 of the CEA.
6
During the November 2015 hearing, the Court explained that the stay entered “was
for the protection of both parties so that there would not be potentially useless work”
performed depending upon the findings of the Court. Record Document 518 at 421. The
limited exception to the stay was the City’s ability to move forward with the 2016 budgeting
process. See id. at 422. The Court hereby takes judicial notice of Ordinance No. 29 of
2016, which was adopted by the City Council on April 5, 2016. The City Council
appropriated $1.9 million for South Bossier Redevelopment.
Page 8 of 40
The parties were not able to agree upon a Joint Status Report outlining the progress
made at the August 29, 2015 conference. See Record Document 477. Instead, the
parties timely submitted individual reports on September 3, 2015. See id. Because all
issues relating to the redevelopment districts were not resolved, the Court ordered that the
stay relating to all action on the redevelopment districts remain in place. See id.
On September 4, 2015, the Coleman Plaintiffs filed the instant Motion to Enforce
Consent Decree and Cooperative Endeavor Agreement. See Record Document 475.7
The Court set the Coleman Plaintiffs’ Motion to Enforce Consent Decree and Cooperative
Endeavor Agreement for hearing on November 19-20, 2015. See Record Document 477.
In preparation for the hearing, the Court made several evidentiary rulings:
A.
Redevelopment District Boundaries.
In an October 1, 2015 Memorandum Order, the Court sustained the City’s objections
as to the redevelopment district boundaries, holding:
As evidenced by the official minutes, this Court held that the required
boundaries/districts of the Redevelopment Districts include only subdistricts
1 and 2 of the diagram. See Record Document 471-5 at 2 (4.01); Record
Document 453 at 2.
Record Document 492 at 1. The Court also granted the City’s Rule 12(f) Motion to Strike,
Motion for Protective Order, or, in the Alternative, Motion in Limine stating:
The boundary issue has been decided, as this Court has held on at
least three occasions that the district boundaries for the Redevelopment
Districts at issue are limited to sub-districts 1 and 2 of the SWA Final Plan.
See Record Documents 471-5 at 2; 453 at 2; and 492 at 1. Plaintiffs’
request for reconsideration of this ruling is DENIED. See Record Document
494 at 8. Accordingly, the Motion to Strike and the Motion for Protective
7
The Coleman Plaintiffs also filed a Motion to Appoint Special Master. See Record
Document 476. The Court deferred ruling on the Motion to Appoint Special Master until
after resolution of the Motion to Enforce Consent Decree and Cooperative Endeavor
Agreement. See Record Document 477.
Page 9 of 40
Order are GRANTED as to the boundary issue. All argument on the
boundaries for the two Redevelopment Districts, and discovery relating
thereto, are to be stricken from Record Documents 475 and 475-1.
Additionally, Plaintiffs are precluded from seeking discovery in this litigation
on the determination of the boundaries from the two Redevelopment Districts
at issue.
Record Document 500 at 4-5.
B.
Minimal Effort.
The City objected to the Coleman Plaintiffs’ attempt to seek discovery regarding “the
action of city officials to only make the minimal effort in pushing forward with the
redevelopment districts.” Record Document 486-3 at 1. The Court sustained such
objection, holding “the relevant issue is compliance with the consultation provision of
Section 3.04 of the Cooperative Endeavor Agreement for Walker Place Community
Benefits . . . , not ‘minimal effort.’” Record Document 492 at 2; see also Record Document
500 (“As stated in a previous ruling, it is this Court’s belief that the relevant issue at this
stage is compliance with the consultation provision of Section 3.04 of the CEA, not
‘minimal effort’ versus ‘complete commitment.’”).
C.
Volkert, Inc.
In an October 1, 2015 Memorandum Order, the Court sustained the City’s objections
relating to Volkert Engineering, holding that “this Court approved Volkert Engineering, a
national firm, for preparation of the Implementation Plan.” Record Document 492 at 2.
D.
Comparative Economic Development Efforts.
The Court granted the City’s Rule 12(f) Motion to Strike, Motion for Protective Order,
or, in the Alternative, Motion in Limine in relation to comparative economic development
efforts, stating:
Under Rule 12(f), this Court holds that Plaintiffs’ comparative
Page 10 of 40
economic development efforts are immaterial and impertinent to the issues
currently before this Court. . . . As stated in a previous ruling, it is this Court’s
belief that the relevant issue at this stage is compliance with the consultation
provision of Section 3.04 of the CEA, not “minimal effort” versus “complete
commitment.” Thus, Plaintiffs’ implied argument that progress on one City
economic development project is necessarily at the expense of the two
Redevelopment Districts is immaterial to the issue of whether the City has
consulted in good faith and in full cooperation with Plaintiffs on the
development of the Barksdale Boulevard Redevelopment District and the
Barksdale South Neighborhood Redevelopment District. . . .
Likewise, at this stage, the Court finds that discovery on the issue of
comparative economic redevelopment efforts is neither relevant, material,
nor reasonably calculated to lead to the discovery of admissible evidence.
This Court had previously deferred ruling on the City’s objections to Plaintiffs’
Notices of Depositions relating to Areas 7-15. See Record Document 492
at 2. The City’s objections to Areas 7-15 are now SUSTAINED.
Based on the foregoing, the Motion to Strike and the Motion for
Protective Order are GRANTED as to comparative economic redevelopment
efforts. All references to economic development projects in areas of Bossier
City other than South Bossier, including downtown, and discovery relating
thereto, are to be stricken from Record Documents 475 and 475-1.
Additionally, Plaintiffs are precluded from seeking discovery in this litigation
on the City’s economic development efforts in other areas of Bossier City,
including the Downtown Bossier City Re-Envisioning Plan.
Record Document 500 at 3-4.
E.
Opinions of Todd Meyer.
During a November 10, 2015 telephone status conference, the Court orally granted
in the alternative the City’s Motion in Limine to Exclude Opinions of Todd O. Meyer under
Federal Rule of Evidence 702. See Record Documents 498 & 505. The Court held that
Todd Meyer’s (“Meyer”) opinions about purported best practices and alleged deficiencies
in the City’s Implementation Plan are at least marginally relevant to the issues to be
decided by the Court, namely the City’s obligation to consult in good faith and in full
cooperation. See Record Document 505 at 1-2. However, the Court limited Meyer’s
opinion testimony at the November 19-20, 2015 hearing “to the opinions offered in his
Page 11 of 40
affidavit and matrix filed in the record” because Meyer would not be issuing an expert
report. Id. at 2, citing Record Documents 493-5 & 493-8. In accordance with previous
orders, the Court excluded any information contained in Meyer’s affidavit or matrix relating
to comparative economic redevelopment efforts and/or the boundaries of the two
Redevelopment Districts. See id. at 2.
II.
LAW AND ANALYSIS.
A.
Legal Standards.
The Consent Decree in this matter is a court order. See Record Document 423.
The Coleman Plaintiffs have asked this Court to require the City to perform certain acts
under the Consent Decree and the CEA. To succeed, the Coleman Plaintiffs must show
by clear and convincing evidence that the City failed to comply with the terms of the
Consent Decree and the CEA, thereby placing the City in contempt of the Consent Decree.
See Hornbeck Offshore Servs., L.L.C. v. Salazar, 713 F.3d 787, 792 (5th Cir. 2013);
Travelhost, Inc. v. Blandford, 68 F.3d 958, 961 (5th Cir. 1995); Am. Airlines, Inc. v. Allied
Pilots Ass’n, 228 F.3d 574, 581 (5th Cir. 2000).
The CEA provides that “this agreement shall be governed by and construed in
accordance with the laws of Louisiana.” Record Document 424 at Article I, Section 1.03(g).
Thus, this Court must look to Louisiana’s rules of contractual interpretation. “Under
Louisiana law, a contract is the law between the parties, and is read for its plain meaning.”
Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Circle, Inc., 915 F.2d 986, 989 (5th Cir. 1990)
(internal citation omitted). Louisiana Civil Code Article 2046 further provides, “When the
words of a contract are clear and explicit and lead to no absurd consequences, no further
interpretation may be made in search of the parties’ intent.” La. C.C. Art. 2046. Simply
put, “where the words of a contract are clear and explicit and lead to no absurd
Page 12 of 40
consequences, the contract’s meaning and the intent of its parties must be sought within
the four corners of the document and cannot be explained or contradicted by extrinsic
evidence.” Am. Totalisator Co. v. Fair Grounds Corp., 3 F.3d 810, 813 (5th Cir. 1993),
citing La C.C. Art. 2046; Billingsley v. Bach Energy Corp., 588 So.2d 786, 790 (La.App.
2nd Cir.1991). “This established rule of strict construction does not allow the parties to
create an ambiguity where none exists and does not authorize courts to create new
contractual obligations where the language of the written document clearly expresses the
intent of the parties.” Omnitech Int’l, Inc. v. Clorox Co., 11 F.3d 1316, 1326 (5th Cir. 1994).
Pursuant to Louisiana Civil Code Article 2047, contracts containing technical words
and terms of art must be given technical meaning when “the contract involves a technical
matter.” La. C.C. Art. 2047. “Words susceptible of different meanings must be interpreted
as having the meaning that best conforms to the object of the contract.” La. C.C. Art.
2048. “A doubtful provision must be interpreted in light of the nature of the contract, equity,
usages, the conduct of the parties before and after the formation of the contract, and of
other contracts of a like nature between the same parties.” La. C.C. Art.2053; see also
Red River Parish Port Comm’n v. Headwaters Res. Inc., 698 F.Supp.2d 684, 689
(W.D.La.2010). The question of whether ambiguity exists in a contract’s language is a
question of law for a court when it is unclear, susceptible to more than one reasonable
interpretation, or the parties’ intent cannot be ascertained. See Red River Parish Port
Comm’n, 698 F.Supp.2d at 689.
If the Court determines that certain contractual provisions are ambiguous and the
intent of the parties could not be ascertained, Louisiana law permits the Court to consider
the custom of the particular field to determine the true intent of the parties, as well as
extrinsic evidence, including expert testimony, to determine such industry customs. See
Page 13 of 40
Henry v. Ballard & Cordell Corp., 418 So.2d 1334, 1340 (La.1982). The Fifth Circuit, when
applying Louisiana contract law, has also held that the admission of expert testimony from
an individual experienced in a particular field to explain technical meaning of terms is
“prudent.” Phillips Oil Co. v. OKC Corp., 812 F.2d 265, 281 (5th Cir.1987) (finding it was
consistent with Louisiana Civil Code Article 2047 and Federal Rule of Evidence 702 to
permit expert testimony by an oil and gas accountant). The Fifth Circuit noted, “What better
way is there to discover the technical meaning than through the use of Federal Rule of
Evidence 702.” Id. at 282.
B.
Analysis.
The Coleman Plaintiffs argue that the City is not in good faith in the creation and
implementation plan for the two Redevelopment Districts. See Record Document 475 at
4. The Coleman Plaintiffs also assert that pursuant to the terms of the CEA, the City is
required to permit SWA to complete the Preliminary Conceptual Master Plan. See id. at
5.8 They request that the Court require the City to re-engage SWA to complete the
Conceptual Master Plan as well as the Implementation Plan. See id. The Coleman
Plaintiffs advance the following arguments, which are specific to their contention that the
City has not used best planning guidelines and practices in relation to the creation and
implementation of the two Redevelopment Districts”:
•
The Codes and Ordinances applicable to the Redevelopment
Districts;
•
The composure of the Redevelopment District Committee;
•
The duties and responsibilities of the Redevelopment District
Committee;
8
The SWA Plan is Joint Exhibit 1 and is entitled “Barksdale Boulevard Corridor,
Bossier City, Louisiana, Conceptual Redevelopment Plan, September 2014.”
Page 14 of 40
•
The frequency of meetings of the Redevelopment District Committee;
•
The self regulation of the Barksdale South Neighborhood
Redevelopment District;
•
Funding for the Performance of the Redevelopment District
Committee;
•
Implementation schedule to allow the Redevelopment Districts to
Function;
•
Funding for the Barksdale Boulevard Redevelopment District Capital
Projects; and
•
Funding for the Barksdale South Neighborhood Redevelopment
District Capital Projects.
Record Document 475-1 at 6-11. The Coleman Plaintiffs maintain that “the actions of the
City show that its commitment to the implementation of the Redevelopment Districts called
for in the CEA is to do as little as it is required to do by the Court.” Id. at 11. The Coleman
Plaintiffs expected a “good faith commitment and effort” by the City and “would never have
signed the CEA had [they] known that the City was going to ultimately do its best to
minimize its obligations under the CEA and ignore sound planning principles in [its]
implementation of the Redevelopment Districts.” Id. at 11-12.
It is this Court’s belief that two key provisions of the CEA guide its decision making
in relation to the instant motion:
“Redevelopment District” means a geographical demarcated area
within which certain best planning guidelines and practices are
implemented, home ownership is encouraged, and certain public incentives,
such as tax benefits and funding opportunities, are made available.
...
3.04. Consultation. The Parties agree to consult one another, in good faith
and in full cooperation, in the execution of the obligations of the Parties, as
described in this Article III. Further, the City agrees to allow Coleman the
opportunity to review and provide comments to the Project Plans prior to
their finalization, which comments the City shall take into full, good faith
Page 15 of 40
consideration.
Record Document 424 at 5, 10 (emphasis added). At the outset, this Court holds that
while it is clear that any “Redevelopment District” is to be a geographical demarcated area,
the term “Redevelopment District” and the phrase “best planning guidelines and practices”
are ambiguous. These words and phrases are technical and terms of art within the
industry, that is, land planning and redevelopment. The Court will consider extrinsic
evidence, namely the expert testimony of Meyer and Micah Wood (“Wood”), to determine
the intent of the parties and the customs in the fields of land planning and redevelopment.
Conversely, the Court believes that the consultation provision set forth in Section
3.04 is clear and explicit and leads to no absurd consequences. This provision needs no
further explanation by extrinsic evidence. It is clear to this Court that the consultation
requirements relating to redevelopment differ than those relating to the “Project Plans.”
Again, the “Project Plans” relate to the public park and the pedestrian and bicycle pathway.
Redevelopment districts, whether it be creation or implementation of such districts, are not
included within the definition of Project Plans. Thus, Section 3.04’s provision allowing the
Coleman Plaintiffs “to review and provide comments . . . prior to finalization” and for the
City to take such comments “into full, good faith consideration” does not apply to the
Redevelopment Districts. Any other interpretation of Section 3.04 would be a “perversion
of language or the creation of ambiguity where none exists.” Ransom v. Camcraft, Inc.,
580 So.2d 1073, 1077 (La.App. 4th Cir.1991); see also Baber v. Hoffer, 430 So.2d 220,
221 (La.App. 4th Cir.1983) (“When a clause of a contract is clear and unambiguous, the
letter of it should not be disregarded under the pretext of pursuing the spirit.”). Simply put,
the City’s obligation as to the Redevelopment Districts is to consult the Coleman Plaintiffs,
in good faith and in full cooperation, in order to fulfill its obligations to create and enact the
Page 16 of 40
Redevelopment Districts. In the context of the creation and implementation of the
Redevelopment Districts, the CEA does not require the City to allow the Coleman Plaintiffs
the opportunity to review and provide comments prior to finalization, nor does the CEA
impose upon the City the need to take any such comments into full, good faith
consideration. As noted in the CEA, each of the parties had the opportunity to negotiate
the language of the agreement in consultation with legal counsel. See Record Document
424 at 1.03(d). The CEA was an arms length negotiation and any further interpretation of
Section 3.04 would be a perversion of the clear contractual language and the creation of
ambiguity where none exists.
1.
The SWA Conceptual Redevelopment Plan and the Engagement of
Volkert, Inc. for the Implementation Plan.
The Court will first address the Coleman Plaintiffs’ contention that under the terms
of the CEA, the City should be required to re-engage SWA to complete the Conceptual
Redevelopment Plan (Joint Exhibit 1) as well as the Implementation Plan. During his
testimony at the November 2015 hearing, Coleman testified that SWA was engaged to do
a preliminary concept and that, in his opinion, SWA needed to complete a comprehensive
master plan and embrace a broader concept as to the Redevelopment Districts. See
Record Document 517 at 19; Coleman Plaintiffs’ Exhibit 7. The Coleman Plaintiffs contend
that SWA, not Volkert, Inc. (“Volkert”), was the “national design firm” that should have
drafted plans and covenants, i.e., an implementation plan, under the terms of the CEA.
There is no dispute that in February 2014, the City formally engaged SWA for
professional services in connection with the Redevelopment District master plan. See City
Exhibit 2; see also Record Document 518 at 370. The record further reflects that the
Coleman Plaintiffs supported the engagement of SWA to provide design consultation
Page 17 of 40
services for redevelopment. See Plaintiffs’ Exhibit 7.9 SWA was to prepare a series of
planning studies and a report document defining the redevelopment goals and public
investment objectives. See City Exhibit 2. The objective of SWA’s services was “to
provide an analysis if the existing conditions, a high-level market assessment, public sector
investment strategy, land use plan, open space place, and conceptual redevelopment
vision plans and conceptual public sector improvements to be considered by the City for
further study or adoption.” Id. SWA was to produce a Final Conceptual Redevelopment
Plan including, among other things, “a phased implementation strategy to create a clear
road map for execution of the proposed improvements.” Id.
In September 2014, SWA issued its Conceptual Redevelopment Plan, which
included an implementation/phasing strategy, funding options, and a summary of
recommendations, including short term improvements (5 years); mid term improvements
(10 years); and long term improvements (15 years). See Joint Exhibit 1 at 112 (Chapter
7), 124-127 (Chapter 8); Record Document 177 at 373. In an email to Mike McSwain
(“McSwain”), the City’s Project Manager, Meyer, who served as SWA’s Project Manager,10
explained:
Perhaps we need to do a better job of explaining that the planning study was
meant to be a “menu of options” as opposed to a ‘de facto’ set of directives.
Our approach was to generate an assortment of conceptual ideas for
9
In a letter dated November 21, 2013, Coleman acknowledged that “the actual
national firm is a decision the City will have to make.” Plaintiffs’ Exhibit 7.
10
At the time of the hearing, Meyer was employed by the Forum Studio in Chicago.
See Record Document 517 at 96-97. The Forum Studio is a design firm that offers
services in architecture planning, landscape architecture, urban design, and technical
assurance. See id. at 96. Meyer had previously been employed by SWA as a project
director and the lead planner for the redevelopment district(s) at issue in this case. See
id. at 99.
Page 18 of 40
improving the physical environment, some of which could be implemented
over time.
It was never our intent that all of the recommendations be implemented all
at once – i.e. the phasing strategy identifies near term, mid term and long
term possibilities.
In the end, it is up to the City to prioritize which elements are most important
to the community and then phase them in as funds are available from year
to year.
City Exhibit 9. In December 2014, SWA issued a Preliminary Cost Study based on
recommendations in its September 2014 report. See City Exhibit 10. The cost study
outlined costs for the short term, mid term and long term improvement recommendations,
for a total investment of approximately $8.6 million. See id.
During the November 2014 construction progress meeting, McSwain reported that
the City was working with Brad Thompson from Volkert11 to prepare a peer review of the
recommended projects from the SWA Redevelopment District Study and an
implementation plan for each of these projects including an outline of steps required to
fund and implement the projects. See Record Document 471-3 at 2; Record Document
483-2 at 11. McSwain was to provide background information on Volkert and Brad
Thompson. See Record Document 471-3 at 3.12 The minutes also reference “next steps”:
[The City] to engage Volkert, Inc. and begin developing the implementation
strategy.
Id.; see also Record Document 518 at 386.
Just prior to the start of the December 11, 2014 construction progress meeting,
11
Brad Thompson, also an AICP certified planner, was the project manager for the
Volkert Implementation Plan. See Record Document 518 at 266.
12
The City complied with this requirements and a copy of the background information
on Volkert and Brad Thompson was attached to the official minutes. See Record
Document 471-3 at 3, 19-26; Record Document 518 at 387.
Page 19 of 40
McSwain received an email from a project manager/architect of the U.L. Coleman
Companies. See Record Document 450; Record Document 518 at 388. The email raised
concerns regarding compliance with the CEA, more specifically the City’s hiring of Volkert.
See id. The Court issued a minute entry, ordering:
No later than 4:00 p.m. on Monday, December 15, 2014, counsel for the
Coleman group shall notify the Court whether such statements are withdrawn
or if compliance issues remain such that the Court needs to take further
action.
Record Document 450. At the December 11, 2014 construction progress meeting,
McSwain provided an “update on Volkert progress on analysis of projects and
implementation strategy.” Record Document 471-4 at 4. More specifically, McSwain
reported that the City was under contract with Volkert to prepare a peer review of the
recommended projects from the SWA Redevelopment District Study and an
implementation plan for each of these projects including an outline of steps required to
fund and implement the projects. See id. “Mr. Coleman requested a standard Request for
Qualifications (RFQ) Package from Volkert.” Id. The City was to continue to work with
Volkert and begin developing the implementation strategy. See id. McSwain testified at
the hearing that ultimately, the parties “continued down the path with Volkert, and Judge
Hicks . . . said it was going to be okay and let’s keep going, this sounds like a good idea.”
Record Document 518 at 388. The Coleman Plaintiffs failed to file any legal challenge to
the City’s engagement of Volkert by the Court’s imposed deadline of December 15, 2014.
See id. at 389.
The official minutes from the February 15, 2015 construction progress meeting
indicate that Volkert’s work on analysis and implementation strategy was to continue. See
Record Document 474-1 at 2.
The minutes also show that SWA was to provide
Page 20 of 40
comparable examples and implementation strategies. See id. The official minutes from
the May 29, 2015 construction progress meeting indicate that Volkert had issued a
proposed Implementation Strategy Matrix, i.e., Implementation Plan.
See Record
Document 471-5 at 4, 14-41; see also Joint Exhibit 2. Coleman received a copy of the
proposed Implementation Plan on May 26, 2015. See Record Document 511 at ¶ 22. Any
comments from the Coleman Plaintiffs regarding the Implementation Plan and overall
implementation strategy were due by June 12, 2015. See id. The Court noted that the
redevelopment process could extend over many months. See id.
In a June 12, 2015 letter to McSwain, Coleman requested that “SWA be continued
as the Master Planner for the Redevelopment Districts.” City Exhibit 17; Record Document
518 at 393-394. The official minutes of the June 29, 2015 construction progress meeting
indicate that the Coleman Plaintiffs requested additional time to submit “FINAL written
comments regarding the Implementation Plan for the redevelopment districts.” Record
Document 456; Record Document 474-3 at 3. The Court further ordered that “Mr.
Coleman shall contact the Court as soon as possible to advise of how much time, not to
exceed 28 days, is needed for his group’s FINAL comments. . . . The Coleman Group is
free to contact SWA for the purpose of retaining SWA for consultation in connection with
the redevelopment districts.” Record Document 56; Record Document 518 at 394-395.
As stated supra, the Coleman Plaintiffs’ deadline was extended until August 14, 2015. See
Record Document 469.
On August 14, 2015, the Coleman Plaintiffs provided “preliminary” comments
regarding the proposed Implementation Plan. See Record Document 511 at ¶ 25; Record
Document 518 at 396. The City requested a meeting with Coleman. See id. at 397. Such
request was denied. See id. The City responded on August 21, 2015. See City Exhibits
Page 21 of 40
24 & 44; see also Record Document 518 at 396-398. The Coleman Plaintiffs submitted
new and additional comments to the City in the form of the matrix on August 28, 2015.
See Record Document 470. The Court received the matrix at the August 28, 2015
construction progress meeting and status conference. See id. Again, despite being
labeled as preliminary, these comments were deemed final by the Court. See Record
Document 517 at 22-23.
Since August 2014, the process of redevelopment has been under the constant
supervision of this Court. The official minutes from the December 11, 2014 construction
progress meeting evidence that Coleman wanted to provide input as to Volkert and “raised
concerns about lack of continuity and required planning if SWA oversight were
discontinued.” Record Document 471-4 at 4; see also Record Document 518 at 387. The
Court recalls Coleman’s protestations regarding the engagement of Volkert, namely that
it was an engineering firm, not a landscape architecture or planning firm. See Record
Document 518 at 387. The Court further recalls the City’s counter argument, which was
based in part on Volkert’s prior business/working relationship with the City. See id. At the
hearing, McSwain testified that Volkert was a national firm and it employed planning staff
and possessed expertise in the filed of land planning. See id. He explained that Volkert
had experience in implementation strategies and had “local knowledge of the [City’s]
process, local familiarity with the MPC and how they work, and familiarity with the
Comprehensive Plan.” Id. at 387, 390. He also testified that Volkert had experience in
drafting ordinances relating to redevelopment. See id. at 385. The Court recalls that
similar explanations as to the City’s preference to engage Volkert were provided during the
construction progress meetings. The official minutes of the construction progress meeting
demonstrate that the Court was fully aware of not only the City’s engagement of Volkert,
Page 22 of 40
but also the Coleman Plaintiffs’ objections to Volkert. The Court allowed the City to move
forward with its retention of Volkert and further notes that the Coleman Plaintiffs failed to
file any legal challenge to the City’s engagement of Volkert by the Court’s imposed
deadline of December 15, 2014. In preparing for the November 2015 hearing in this
matter, the Court sustained the City’s objections relating to Volkert, holding that “this Court
approved Volkert Engineering, a national firm, for preparation of the Implementation Plan.”
Record Document 492 at 2. The Court reiterated this ruling during the hearing, stating:
And the Court held that Volkert itself was a national firm with the expertise
that the City needed as a consultant in order to move forward with the
redevelopment districts.
Record Document 518 at 240. Thus, this Court holds that the City’s engagement of Volkert
to draft the Implementation Plan was in full compliance with all provisions of the Consent
Decree and the CEA. While there may be disagreement amongst the parties as to whether
SWA or Volkert was better suited to draft the Implementation Plan, disagreement does not
equal breach of the Consent Decree or CEA. Accordingly, the Coleman Plaintiffs’ request
for the Court to require the City to re-engage SWA to complete the Conceptual Master Plan
as well as the Implementation Plan is DENIED.
2.
The Implementation Plan.
The Court will now move to the Coleman Plaintiffs’ specific contentions regarding
the deficiencies of the Implementation Plan. The Court is guided by the following general
considerations: does the Implementation Plan create Redevelopment Districts as defined
in the CEA; does the Implementation Plan employ best planning guidelines and practices;
and has the City consulted the Coleman Plaintiffs, in good faith and in full cooperation, in
the creation and implementation of the Redevelopment Districts, all as required by the
CEA.
Page 23 of 40
As stated supra, this Court has held that the term “Redevelopment District” and the
phrase “best planning guidelines and practices” are ambiguous; thus, the Court will
consider extrinsic evidence, including expert testimony, in its analysis of these terms. The
Coleman Plaintiffs presented the expert testimony of Meyer, who was accepted by the
Court as an expert in the creation and implementation of redevelopment districts. See
Record Document 517 at 105, 115. Meyer is not certified by the American Institute of
Certified Planners (“AICP”). See id. at 105-106, 145. Rather, he is a registered landscape
architect and is accredited by Leadership in Energy and Environmental Design Neighborhood Development (“LEED - ND”), which is a product of the U.S. Green Building
Council. See id. at 105, 160. Meyer is also accredited by the Congress for New Urbanism.
See id. The City presented the expert testimony of Wood, a land use planner certified by
the AICP. See Record Document 518 at 237, 239. He is also a Senior Planner with
Volkert in Franklin, Tennessee; thus, he was also called as a fact witness about the
Implementation Plan. See id. at 240, 243. The Court accepted Wood as an expert planner
with AICP certification. See id. at 255, 266. Wood explained the significance of his AICP
certification:
I received my AICP certification in 2007. AICP is the – really, the only
certification for practicing planners, both public and private, within the U.S.
relating directly to the practice of planning. . . . It is administered by the
American Planning Association. . . . There are requirements that are a
combination of education and experience.
...
Also, part of the AICP certification, there’s a continuing education
requirement. We’re required to have 32 hours every two years; and to get
that, you have to go to certified courses or conferences. And during my
continuing education requirement, I’ve been exposed to development and
redevelopment districts.
...
Page 24 of 40
The AICP certification is based on planners being a generalist. . . . So you
really have to know – to be able to have AICP certification, you have to know
kind of at least a little bit about a lot of different elements of the planning
practice.
Id. at 244, 247, 252-253.
While lay witness testimony has played an important role in this Court’s analysis,
this case presents competing expert testimony as to the ambiguous terms in the CEA.
Both experts are highly trained and experienced and both were subjected to vigorous
cross-examination. The Court weighed their testimony and finds the City’s expert to be
more persuasive than the Coleman Plaintiffs’ expert. As will be set forth in more detail
infra, this Court believes that Wood’s testimony, which was grounded in his AICP
certification,13 is more convincing than Meyer’s testimony, which was based on the LEED
and new urbanism principles. Wood explained that the source of his “best practices” was
the American Planning Association, education, practical experience working in a variety of
communities, and attending conferences, special workshops and seminars as required by
his AICP certification. See Record Document 518 at 72 . The Court also heard testimony
from Wood comparing and contrasting the AICP and LEED philosophies. Wood explained
that he was not familiar with LEED-ND being used for a larger city-driven comprehensive
planning project. See id. Rather, LEED-ND principles were more often used in the context
of single private development. See id. He acknowledged that LEED-ND may be used for
“a larger master plan development, but it’s usually where all parcels are in common
13
During the hearing, this Court remarked:
And it does seem to me that AICP is one of the sought-after but not required
certifications in the field of planning.
Record Document 518 at 258.
Page 25 of 40
ownership and the development is guided by a single overall developer.” Id. at 272-273.14
Based on his experience, Wood testified that the LEED-ND is “more of a developer-driven
process than a community-driven process, from my experience.” Id. at 273. Additionally,
Wood explained that LEED is a sustainability effort “to provide for low-impact development,
greener, more sustainable building practices and methods” and is used primarily for new
development solely, not rehabilitation. Id.15 Finally, Wood testified that his experience with
the Congress for New Urbanism is that it “is very evangelical in [its] beliefs” – it believes
its way is the only way in planning. Id. 273-274. As a whole, the Court believes the land
planning philosophies espoused from the AICP certified planner are more in line with the
best planning guidelines and practices applicable to redevelopment districts envisioned in
the CEA.
Throughout the hearing, the Coleman Plaintiffs seemed to argue that the
Implementation Plan was in conflict with the CEA because it created Overlay Districts as
compared to Redevelopment Districts. During his testimony, Coleman stated that an
“overlay district” may not be exactly the same thing as a redevelopment district “from a
legal standpoint,” but admitted the two are very similar. Record Document 517 at 7-8. The
crux of Coleman’s testimony was that the Volkert Implementation Plan does not provide
for redevelopment districts consistent with the concept of redevelopment districts in the
industry.
See id. at 29.
Meyer testified that the Implementation Plan did create
14
Meyer testified that “in a redevelopment district, you don’t have common
ownership, meaning the whole district is not owned by one entity, it’s owned by many
entities.” Record Document 517 at 167.
15
In a December 2013 planning meeting with the City and SWA, “UL Coleman
indicate[d] that Coleman is not in the business of tearing down existing structures for
redevelopment.” Record Document 518 at 372; City Exhibit 1.
Page 26 of 40
“Redevelopment Districts” because the plan focused on capital development/improvement
projects and did not contain guidelines as to how private development should ultimately
evolve. See Record Document 517 at 122.16
Here, the Implementation Plan clearly uses both “Redevelopment District” and
Redevelopment District Overlay.” Joint Exhibit 2. Wood testified that he had reviewed the
definition of Redevelopment District in the CEA and explained that “communities’ planning
terms differ greatly from one community to the next. Record Document 518 at 254.263.
Conversely, Meyer testified that in his critique of the Implementation Plan he was speaking
only of redevelopment districts generally and not specifically under the CEA. See Record
Document 517 at 108. According to Wood, the way one community calls a ‘character area’
could be called a ‘redevelopment district’ within another community.” Record Document
518 at 263. He went on to explain:
One community may call a planning, geographical planning area, a
“redevelopment district.” And I’ve never worked in a community that called
it specifically that, but I have worked in similar situations where there’s
comprehensive planning going on for a character area or planning sector,
and then worked on Implementation towards the goals and objectives of the
plan for that geographical area.
Id. at 264.17 He also testified that the City’s prior use of “overlay districts” in the context of
the Unified Development Code and the City’s Comprehensive Plan guided Volkert in its
inclusion of “overlay zones for the two areas mentioned in the [CEA]”:
16
The City’s expert sufficiently countered this argument by explaining that “the
regulation or motivation of private development activities” would be covered under the
regulations in the overlay districts. Record Document 518 at 325-326.
17
The Court notes that Wood’s explanation matches closely with William Cole
Guthrie’s (“Guthrie”) testimony at the hearing. Guthrie, a landscape architect and Vice
President of Development for the U.L. Coleman Companies, testified that redevelopment
is basically repositioning something that has already been built, and “Other planning
aspects of that nature.” Record Document 518 at 202.
Page 27 of 40
And so as we were crafting the [I]mplementation [P]lan, we determined that
the best planning practice would be one that the City already has familiarity
with and understands how to implement and execute.
Id. at 270.18 The Court accepts Wood’s testimony that there is “not one objective definition”
of a redevelopment district, as land planning is “very community-specific” and definitions
will vary from community to community. Id. at 310. The Court further believes that
redevelopment districts and overlay districts are not mutually exclusive. Thus, based on
the foregoing, this Court holds that the Implementation Plan’s reference to overlay districts
does not conflict with the CEA and conforms with best planning guidelines and practices,
as required by the CEA.19
The Implementation Plan specifically incorporates the City’s Unified Development
Code, the SWA Conceptual Redevelopment Plan, and the SWA Preliminary Cost Study.
See Joint Exhibit 2 at 7-9. When asked if the Implementation Plan drafted by Volkert met
the goals stated in the SWA Conceptual Redevelopment Plan, Meyer admitted that the
Implementation Plan “does some of those things, yes.” Record Document 517 at 154.
Wood testified that Volkert used the SWA Conceptual Redevelopment Plan, the City’s
Comprehensive Plan, and the CEA when drafting the Implementation Plan. See Record
Document 518 at 329-330.
During the hearing, the City also noted that the SWA
18
In December 2013, before the City actually signed a contract with SWA, there was
a meeting to discuss SWA’s scope of work as to redevelopment. See Record Document
518 at 372; City Exhibit 1. The minutes from this meeting indicate there was a discussion
on planning studies, wherein the City stated that it saw “the Barksdale Redevelopment
District as an overlay district to existing studies and guidelines.” Id.
19
As noted previously, the CEA notes that each of the parties had an opportunity to
negotiate the language of the agreement in consultation with legal counsel. See Record
Document 424 at 1.03(d). The parties were free to further define “Redevelopment District,”
whether it was to include a reference to new urbanism, form-based codes, or overlay
districts. However, the parties missed this opportunity and the Court was left to weigh
expert testimony to determine the technical meaning of “Redevelopment District.”
Page 28 of 40
Conceptual Redevelopment Plan provides:
There are many ways in which the redevelopment plan can be implemented.
Below is a suggestion of how to proceed with improvements that work
together to achieve the goals and objectives prescribed early in the planning
process.
Joint Exhibit 1 at 126; Record Document 518 at 337. Based on these facts, the Court
holds that Volkert, in drafting the Implementation Plan, consulted and was guided by the
SWA Conceptual Redevelopment Plan, as required by Article III, Section 3.03(c) and (d)
of the CEA. See Record Document 424.
The Coleman Plaintiffs have focused on four primary areas as evidence that (1) the
City lacks good faith in the creation of the Redevelopment Districts and (2) the
Implementation Plan does not conform with best planning guidelines and practices. The
Court will address each of these contentions separately, but as a whole finds that the
Implementation Plan employs best planning guidelines and practices. This Court notes
that its ruling is, in part, based upon the stage of the redevelopment process, as even the
Coleman Plaintiffs’ expert stated that the City is “at the early stages of the implementation
of [the] redevelopment districts.” Record Document 517 at 162.
a.
The Codes and Ordinances applicable to the Redevelopment
Districts.
Meyer’s matrix critiques the Implementation Plan and requests the following action
as to codes and ordinances:
Codes/Ordinances: Prepare codes, ordinances, guidelines or pattern books
for the redevelopment district(s) that prescribe high-quality public-sector
improvements and private development. A form-based code overlay will be
the most effective way to achieve this and realize the vision of high-quality
urban development established in the conceptual plan.
Page 29 of 40
Form-Based Code:20 The City should implement a form-based code overlay,
design guidelines or a pattern book for the redevelopment district(s). These
tools remove complexity and ambiguity in conventional codes and
ordinances and replace them with high descriptive regulations that are easy
to understand and implement.
City-Wide Architectural Standards: Meyer maintains that architectural
standards should be incorporated as part of the form-based code overlay,
which should be specifically created for the redevelopment district(s).
Coleman Plaintiffs’ Exhibit 3. At the hearing, Meyer testified that the Implementation Plan
does not have any kind of ordinance, code or guideline about how private development
should ultimately evolve. See Record Document 517 at 122. He discounted the City’s new
architectural standards because they are based on “conventional Euclidean zoning codes
[that] have led us to a type of suburban sprawl . . . development” that should not be an
aspiration for South Bossier.” Id. at 124.21 Meyer considers form-based codes to be best
practices. See id. at 128. Mirroring Meyer’s concerns, Guthrie testified that he did not
believe that the Implementation Plan addressed the SWA Conceptual Redevelopment Plan
and believed the proposed ordinances are “disappointing” because they only address three
items: driveway width restriction, a buffer along Barksdale Boulevard, and parking
20
According to Meyer, form-based codes focus on size, shape and placement of
buildings and parking and “where they are relative to thoroughfares and the form of that
building, recognizing that those buildings will probably change use sometime in their
lifetime.” Record Document 517 at 125. Wood described form-based codes as a “critique
of Euclidian zoning which is use-based.” Record Document 518 at 278. Wood explained
that form-based codes emphasize the “built environment, the urban form, and how things
look rather than how things are actually utilized or used as the actual land use.” Id.
21
According to Meyer, Euclidian zoning practices and plans are conventional types
of codes that promote horizontal, separate land uses; lots of parking; require people to
drive long distances between uses; require more costs for infrastructure and maintenance
of such infrastructure. See Record Document 517 at 125. Euclidian zoning codes
normally regulate land use and density. See id. Wood testified that under Euclidian style
codes, buildings are farther back from the thoroughfare. See Record Document 518 at
277.
Page 30 of 40
reduction. See Record Document 517 at 210, 212.
In its August 21, 2015 response to the Coleman Plaintiffs’ comments, the City
addressed the Coleman Plaintiffs’ concerns as to ordinances and, in fact, drafted a new
ordinance entitled “An Ordinance to Create and Enact the Barksdale Boulevard
Redevelopment District and Barksdale South Neighborhood Redevelopment District as well
as Establish the Barksdale Redevelopment District Committee.” City Exhibit 24, Appendix
3.22 Meyer admitted that he had not reviewed the new, “so-called umbrella ordinance.”
Record Document 517 at 168-169. Yet, Wood testified that this new proposed ordinance
was “the next step” and that it would effectuate both the SWA Conceptual Redevelopment
Plan and the Implementation Plan. See Record Document 518 at 269.
It is this Court’s finding that the City’s proposed umbrella ordinance is in line with
Volkert’s suggested next step in the Implementation Plan, that is, to start the capital
projects. The Court believes that the passage of the umbrella ordinance is what is needed
to get the redevelopment districts up and running. The City’s proposed ordinance creates
the redevelopment districts and a redevelopment committee for the Barksdale Boulevard
Redevelopment District. See City Exhibit 24, Appendix 3. It also calls for the City’s
redevelopment efforts to be lead by the Bossier MPC and anticipates the need for
additional MPC staff or outside consultants. See id. The proposed ordinance incorporates
SWA’s Preliminary Cost Study and acknowledges appropriations to be made to fund the
phased implementation. See id. The proposed ordinance specifically references the City’s
5-year Capital Projects Plan and the City Council’s appropriation of funds in its annual
22
The City’s response to the Coleman Plaintiffs’ comments is evidence of the City’s
consultation, in good faith and in full cooperation, in the creation and implementation of the
Redevelopment Districts.
Page 31 of 40
budget.
See id.
The proposed ordinance includes action items for one or more
neighborhood conservation overlay districts in the Barksdale South Neighborhood
Redevelopment District and the adoption of a zoning overlay district for the Barksdale
Boulevard Redevelopment District. See id. The umbrella ordinance will, at a minimum,
initiate the redevelopment process, such that capital project plans and neighborhood plans
can begin. It is for these reasons that the Court holds that the umbrella ordinance is in line
with best planning guidelines and practices.
The Court likewise holds that the use of a hybrid code, with elements of both
Euclidean and form-based codes, in the Implementation Plan complies with best planning
guidelines and practices.23 Wood explained that Volkert considered a form-based code in
drafting the Implementation Plan, but rejected it as “being overly complex for the
implementation of goals and objective of the SWA Plan since the City already had basically
best planning practices through the use of overlay zones already as a tool in their UDC.”
Record Document 518 at 275. Wood testified that it is very complex to get developments
and redevelopments through the approval process in a form-based code. See id. at 276.
Wood also noted that one of the primary reasons Volkert rejected a form-based code as
an implementation tool for the SWA Plan was because part of the area at issue was a
suburban highway commercial corridor. See id. at 279. He explained it would be better
23
Wood explained that the areas covered by the two redevelopment districts are now
considered Euclidian zoning areas. See Record Document 518 at 290. As part of the
proposed umbrella ordinance, the City has also drafted an ordinance to amend the UDC
in relation to the Barksdale Boulevard Redevelopment Overlay District. See City Exhibit
at 56-58.
This ordinance calls for modification by three components, i.e.,
landscaping/buffering requirements; driveway spacing; and reduction in parking
requirements in exchange for cross access easements. See id. According to Wood, the
results of these modifications will be more of a hybrid zoning approach. See id. at 285,
290.
Page 32 of 40
to use a “hybrid zoning tool to implement incremental change over time as development
and redevelopment occurs along that corridor,” rather than going back in and establishing
the form-based code based off of existing development. Id. The City would be able to
have the “hybrid result” with certain form-based elements as part of the overlay districts.
See id. at 316. Wood also noted that in light of the City’s new architectural standards, the
City is moving in the direction of a hybrid code citywide. See id. at 290.
Moreover, when questioned by the Court, Meyer admitted that hybrid codes are
often used “where a city is not necessarily ready to give up the conventional code and
they’re not necessarily ready to just bring in a pure form-based code, and so you have a
hybrid of the two coming together. And that can happen for a district, a corridor, a
neighborhood. The scale is irrelevant.” Record Document 517 at 141. He also admitted
that conventional/Euclidian codes are “the standard” around the country; yet, in his opinion,
they are not best practices or best planning. Id. at 144. Meyer conceded that the SWA
Conceptual Redevelopment Plan makes no mention of any required drafting and adoption
of any land use regulatory ordinances by the City and that there is no mention in the
summary of recommendations of any form-based code. See id. at 158. Meyer further
admitted that while he believed “that the U.S. Green Building Council is the most widely
accepted standard or criteria by which projects are . . . judged in terms of sustainability,”
there was nothing in the CEA that required LEED-ND standards as the best practices to
be followed. Id. at 161. Based on the reasons set forth above, this Court holds that the
use of a hybrid code, with elements of both Euclidian and form-based codes, is in line with
best planning guidelines and practices.
b.
The Barksdale Boulevard Redevelopment District Committee.
Meyer’s matrix critiques various aspects of the Redevelopment District Committee
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relating to composition, duties and responsibilities, and frequency of meetings:
Redevelopment District Committee: The committee needs to include a
diverse and independent group. The committee shall include seven
members – three members appointed by the City (non-elected officials); the
president of the South Bossier Assembly; the president of the NW Louisiana
Economic Partnership; the president/CEO of The Center for Planning
Excellence in Baton Rouge; and one representative from UL Coleman
Companies.
Committee Responsibility: The committee shall meet to discuss district
business, new initiatives, review and approve infrastructure projects as
proposed by the City, review and approve proposed development projects
by private parties and assess progress on current initiatives as established
by the district.
Committee Meetings: The committee shall meet once per month. The
district committee should also have the right to convene ‘emergency’
sessions in order to address the needs of the City or private entities between
the standard monthly meeting dates.
Coleman Plaintiffs’ Exhibit 3. At the hearing, Meyer testified that the committee was
subject to political influences as to agendas and the Implementation Plan did not provide
best practices in terms of committee makeup, responsibility and authority. See Record
Document 517 at 132, 142.
Mr. Coleman and Guthrie likewise expressed concern about the committee.
Coleman critiqued that the governance of the committee is city-appointed; the makeup of
the committee does not promote independence; the committee lacks authority; and the
committee only meets twice a year. See Record Document 517 at 29, 33-34. Guthrie
testified that it is his belief that the committee is simply a “recommendation committee”; the
committee has no authority and no power; and the decision making remains with the City
Council. Record Document 518 at 230.
In light of the history of this litigation, the Court has reviewed the issues relating to
the Barksdale Redevelopment District Committee with a critical eye to ensure a level of
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independence. While there is simply no way to guarantee that local politics will not
influence the committee and its actions, the Court believes that the City’s August 21, 2015
responses relating to the committee evidence good faith. Additionally, the Court finds that
the testimony at the hearing established that much of Meyer’s critiques relating to the
committee appeared to be based upon his opinion that the CEA called for more of a
redevelopment authority created by state legislation. See Record Document 517 at 172.
Yet, as explained by Wood, independent redevelopment authorities are associated with
a housing authority or a downtown redevelopment authority in a very urban environment.
See Record Document 518 at 295. Such independent authorities are more common when
federal monies or grants are involved and are more unusual for a small area planning
district. See id. at 295, 334.
Moreover, in its August 2015 response, the City agreed with the Coleman Plaintiffs’
concerns regarding a better defined role for the committee and the need for revised
membership for the committee. See City Exhibit 24 at 2.24 The proposed umbrella
ordinance will establish the committee. See id. The membership was revised to 9
members (instead of seven) and includes: three citizens (instead of two) appointed by the
Mayor, three members from the City (none are elected officials), and three other members
(a representative of U.L. Coleman Companies, the Community Planner of Barksdale Air
Force Base, and the Executive Director of the Bossier Economic Development
Foundation). See id. Likewise, the City agreed that the committee should hold regular
meetings, no less than twice annually, and special meetings. See Record Document 517
24
McSwain testified that the intent of the City’s response as to the committee was
to make it a diverse, balanced group with varying levels of local knowledge. See Record
Document 518 at 398.
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at 174. The committee otherwise will be in the best position to determine the frequency
of its meetings and its agenda as its work develops. See id. The Court therefore finds that
the City’s responses as to the committee and the proposed umbrella ordinance are in line
with best planning guidelines and practices.
c.
Funding.
The Coleman Plaintiffs argue that the Implementation Plan does not provide
adequate funding for the performance of the Barksdale Boulevard Redevelopment District
Committee or for capital projects in the Barksdale Boulevard Redevelopment District and
the Barksdale South Neighborhood Redevelopment District. Meyer’s matrix specifically
suggests that the City should review funding options and be proactive in pursuing funding
options; explore the option of establishing tax increment financing (“TIF”); and formulating
and adopting a plan to fund the redevelopment committee, capital improvements,
infrastructure projects and maintenance. See Coleman Plaintiffs’ Exhibit 3.
At the hearing, Meyer testified that the Implementation Plan provided no funding
mechanisms such as levying taxes or floating municipal bonds. See Record Document
517 at 132. He noted that the redevelopment committee would only get money from the
City. See id. at 133. He also noted that the Implementation Plan did not provide funding
for the committees to retain consultants, land planners and other professionals. See id.
He noted that the Implementation Plan did not discuss long term or recurring budgets over
time. See id. at 135. Coleman shared these concerns, stating that there was no funding
and no tax incentive programs or methodology for public-private financing. See Record
Document 517 at 29. Coleman further questioned the financial commitment of the City and
noted that redevelopment has been a “very reluctant process.” Id. at 36-37.
In its August 21, 2015 response, the City addressed funding, namely Meyer’s
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suggestion of TIF funding. See City Exhibit 24 at 3, 39-40. The City acknowledges that
SWA mentioned TIF in its Conceptual Redevelopment Plan. However, the City notes that
the necessary city-wide vote for adoption of such funding for the redevelopment districts
is a serious limitation:
This is a serious limitation that SWA failed to consider when it included TIF
funding as a potential source of revenues for implementation of its projects
in the South Bossier Redevelopment Districts.
City Exhibit 24 at 40.
The proposed umbrella ordinance provides:
[A]ction items for the implementation of [the redevelopment district] include
acknowledgment of appropriations to be made to fund the phases set forth
in the SWA Preliminary Cost Study . . . through placement of the projects in
the City’s 5-year Capital Projects Plan and adoption in the City Council’s
appropriate annual budget.
City Exhibit 24 at 49. SWA’s short term recommendations are included as Appendix B to
the proposed umbrella ordinance and show a total short term potential South Bossier
investment in the amount of $3.621,116. See id. at 53. The mid term and long term
recommendations are likewise included with potential investments totaling $567,080 and
$930,200, respectively. See id. at 54. The total potential South Bossier investment listed
as part of the proposed ordinance is $5,118,396. See id. at 55.
The Court was also impressed by the testimony of Mark Hudson (“Hudson”), City
Engineer. Hudson testified that he deals with the requests for funding of particular projects
the City is going to undertake:
As projects are identified that the City wants to have designed or
constructed, it’s not uncommon for me to calculate a budget number to be
used to accomplish that project and go to the city council to have the money
appropriated, typically via an ordinance.
Record Document 518 at 339. He explained that there is also a calendar year budgeting
process and that the City has to put funds in an annual budget for infrastructure projects.
Page 37 of 40
See id. Hudson testified that he had seen the SWA Conceptual Redevelopment Plan and
that his focus had been the short term projects relating to landscaping and hardscaping
down Highway 71. See id. at 343-344. As to $300,000 appropriated to redevelopment in
the 2015 City budget, Hudson explained that in an effort to “jumpstart the third leg of the
agreement, the redevelopment projects – I dreamt up the 300 grand.” Id. at 345. Hudson
believed it “would show some good faith that [the City was] moving on to the third leg of the
agreement.” Id. Hudson outlined the $1.6 million appropriated for redevelopment in 2016
budget and stated that the total cost of recommended projects by SWA in the first five
years is $3.6 million. See id. at 349-350. The balance of $1.7 million, after the $1.9 million
allocated in 2015-2016, would then be put in the five-year capital plan. See id. at 355-356.
At this stage of redevelopment, the Court finds that the funding mechanisms in
place are in line with best planning guidelines and practices. Moreover, the City’s response
explaining the limitations of TIF funding; the specific incorporation of the short term, mid
term, and long terms recommendations and the cost study numbers in the proposed
umbrella ordinance; and the credible testimony of Hudson as to the City’s budgeting
process demonstrate good faith on the part of the City in its funding commitment.
d.
Implementation Schedule.
In his matrix, Meyer stated that the City needs to commit to a time frame to create
and formally adopt the needed regulations, district committee, the redevelopment district(s)
and capital improvements. See Coleman Plaintiffs’ Exhibit 3. Meyer contends that the
Implementation Plan’s schedule is insufficient to allow the Redevelopment Districts to
function properly.
The Court believes that the proposed umbrella ordinance resolves many, if not all,
of Meyer’s critiques of the implementation schedule.
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The ordinance creates the
redevelopment districts and the district committee. See City Exhibit 24 at 48-55. The
ordinance, along with Hudson’s testimony, outlines the City’s commitment to complete the
short term recommendations within a five year time frame. See id.; see also Record
Document 518 at 349-350, 355-356. In an email to McSwain, Meyer stated that “it was
never [SWA’s] intent that all of the recommendations be implemented all at once.” City
Exhibit 9. Meyer admitted that prioritization would be up to the City and that a phased
implementation strategy, wherein the City phases projects in as funds are available from
year to year, was the intent of the SWA plan. See id. In fact, there was much testimony
at the hearing describing a phasing of capital projects and incremental changes over time.
Thus, given this reasoning and again noting the early stages of redevelopment, the Court
holds that the implementation schedule is in line with best planning guidelines and
practices.25
25
In their motion, the Coleman Plaintiffs had questioned the self regulation of the
Barksdale South Neighborhood Redevelopment District. Meyer, in his matrix, suggested
that the City “replace self-regulation with a City or MPC driven process that uses internal
planning professionals or consultants to draft an overlay plan, present it to the residents
and gather feedback and comments prior to adoption.” See Coleman Plaintiffs’ Exhibit 3.
However, there was little testimony on this issue at the hearing.
In its August 21, 2015 response, the City noted that the proposed umbrella
ordinance “calls for role by City government under leadership of Bossier MPC (subject to
adding needed MPC staff or outside consultants) in:
c.
Supporting neighborhood in its adoption of self-regulation under the
proposed Neighborhood Conservation Overlay to be considered
under Sec. 5.7.3 of the Bossier Unified Development Code. . . . Note:
By adoption of the new Ordinance, the . . . City Council proactively is
nominating the Barksdale South Neighborhood for contact and
discussion by the Bossier MPC through MPC Planner Carlotta AskewBrown for initiation of adoption of a Neighborhood Conservation
Overlay district(s) as provided in the Implementation Plan. The
adoption of the new Ordinance amends Sec. 5.7.3 of the UDC as
necessary to authorize this nomination by the City Council.
City Exhibit 24 at 30. The Court finds that the City’s response and the changes made
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III.
CONCLUSION.
Based on the foregoing analysis, the Court DENIES the Coleman Plaintiffs’ Motion
to Enforce Consent Decree and Cooperative Endeavor Agreement (Record Document
475), including their request for attorneys’ fees and the costs incurred for the utilization of
land use planning experts. The stay entered as to all action on the redevelopment districts
is hereby LIFTED.
The Court hopes that the resolution of the issues presented in the instant motion will
facilitate a better working relationship between all parties moving forward. The Court
believes that while there was no breach of the Consent Decree or the CEA by either party,
there is room for improvement in the working relationship between the City and the
Coleman Plaintiffs. At the time of the hearing, the Court noted that there were no biddable
documents relating to the Walker Place Development. The Court hopes that the Coleman
Plaintiffs will be diligent and expeditious in working on the development documents, as
required by Section C(1)(D) of the Consent Decree. Likewise, the City is encouraged to
move forward with its redevelopment efforts in a prompt manner such that the citizens of
South Bossier receive the community benefits intended by the CEA.
An order consistent with the terms of the instant Memorandum Ruling shall issue
herewith.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 13th day of March, 2017.
evidence consultation, in good faith and in full cooperation, and also are in line with best
planning guidelines and practices.
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